Sexual Offences Policy
PREAMBLE
The University is committed to providing an institutional environment where all persons
may pursue their studies, careers, duties and activities in an atmosphere free of any threat
of unwelcome and unwanted sexual attention. Rape and sexual assault are regarded as
serious misconduct and may result in disciplinary action. The University will not tolerate
rape.
The University recognises:
the unique social environment that exists in the University context;
the spirit and progress of national law reform relating to rape and all other sexual
offences;
that women are particularly vulnerable to rape and other sexual assault;
the high incidence of rape in South Africa and the higher risk of acquaintance
rape in the University context;
the connection between the transmission of HIV and rape;
the substantive difference between the criminal justice system and the procedures
created under this policy;
that the University’s role is to ensure a safe learning and working environment for
its community, while the criminal justice system is the primary mechanism of
criminal justice in sexual offences matters;
the reluctance of complainants of sexual assault and rape to lay charges with the
criminal justice system;
that the University has a positive duty to respond to all reports of sexual assault
and rape which come from or relate to its members;
that whether or not a complainant chooses to lay charges with the criminal justice
system, the University has the right to take action in accordance with due
diligence and in terms of the general code of good behaviour through which the
University has jurisdiction over its members.
Accordingly, it is the purpose of this policy to:
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deter perpetration of rape and other sexual assault;
encourage the reporting of incidents;
provide for a comprehensive victim-centred rape and sexual assault response;
provide formal process for addressing violations of this policy;
provide for education of the University community about rape and other sexual
assault.
To this end the University is committed to creating systems and structures through which
rape and sexual assault can be reported and sensitively dealt with; to working with the
formal criminal justice system; and to following the procedural rules of this policy fairly
and consistently.
In this context the University’s highest concern is for the emotional and physical
wellbeing of rape and sexual assault victims. Victims shall have access to the full
complement of University services that can help them maintain their wellbeing as well as
their dignity and safety.
This policy is focused on the management of rape and sexual assault and should be
understood and implemented in the context of other relevant University policies and
statements, including those related to sexual harassment and racism. It should be
understood that one incident may constitute a breach of more than one University policy
and may be dealt with accordingly.
In accordance with its commitment to dealing decisively with rape and sexual assault
occurring in the University community, any violation of this policy will be met with the
strongest available sanctions.
DEFINITIONS
1.1 ‘CJS’ means the Criminal Justice System.
1.2 ‘Complainant’ refers to the person who lodges a formal disciplinary complaint
under this policy.
1.3 ‘Consent’ means free and informed agreement between the parties to participate in
a sexual act with respect to which an allegation of rape, as defined below, has been
made. In deciding whether such agreement was present at the time of the alleged
violation of this policy the University will be guided by considerations, which may
include, but are not limited to the following:
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a. Parties must be able to effectively communicate and agree on the type of
sexual activities that will be shared. Either party has the right to change
her/his mind, at any time, and is responsible for communicating that change.
b. It is the responsibility of the person that initiates any type of sexual activity to
obtain the other person’s consent.
c. Consent to one type of sexual act does not imply consent to other forms of
sexual activities.
d. Silence does not imply consent.
e. A previous or present sexual or other relationship between the parties does not
imply consent.
f. Consent is not implicit in a person’s manner of dress.
g. Accepting an invitation for a meal or a date is not consent, nor does it imply
consent.
h. Consent will not be effective when it is obtained, or perceived to be obtained,
from a person whose capacity to consent is diminished, as defined in section 9
below.
1.4 ‘CPS’ means Campus Protection Services.
1.5 ‘Hearing Officer’ refers to the person who will conduct the investigation and lead
the presentation of evidence at the University hearing, in cases where disciplinary
proceedings are initiated.
1.6 ‘IAPO’ means International Academic Program Office.
1.7
‘No-Contact Order’ is a protective measure issued by the University that prohibits
the alleged perpetrator from coming into contact with the victim.
1.8
‘Perpetrator’ refers to the person who raped the complainant. To avoid any
prejudice this person shall be referred to as the ‘alleged perpetrator’ throughout this
policy.
1.9 ‘Rape and Sexual Assault’ are defined based upon a 2006 version of the Criminal
Law (Sexual Offences and Related Matters) Amendment Bill (may be revised
when the legislation is passed) as follows:
a. 'Sexual Assault’ is defined as an unlawful and intentional act of sexual
contact with another person without that person’s consent.
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b. ‘Rape’ is defined as an unlawful and intentional act of sexual penetration with
another person without that person’s consent. In terms of this policy, rape
specifically includes:
i. acquaintance, spousal and date rape;
ii. incidences where the victim submits or is subjected to an act of sexual
penetration as a result of:
1. the use of force or intimidation by the alleged perpetrator
against the victim, another person or the property of these
persons;
2. a threat of harm, real or perceived, by the alleged perpetrator
against the victim, another person or the property of these
persons;
iii. incidences where there is an abuse of power or authority by the alleged
perpetrator to the extent that the victim is inhibited from expressing
her/his resistance or unwillingness to participate in the act;
iv. incidences where the act of sexual penetration is committed under
false pretences or by fraudulent means;
v. incidences where the victim is incapable of appreciating the nature of
the act of sexual penetration, including where the victim is at the time
of the commission:
1. asleep or unconscious;
2. in an altered state of consciousness, including, but not limited
to, under the influence of any medicine, drug, alcohol or other
substance, to the extent that her consciousness or decisionmaking is adversely affected;
3. mentally disabled;
4. a child below the age of 12 years.
c. In the context of this policy, both rape and sexual assault will herein be
referred to as rape.
1.10 ‘The RO’ means the Relevant Office [this office does not exist in terms of current
University structures and the functions of this office may be allocated to existing
structures during the implementation phase].
1.11 ‘SAPS’ means the South African Police Service.
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1.12 ‘Sexual penetration’ includes an act which causes penetration to any extent by the
penis or an object used by one person into the anus, mouth or vagina of another
person.
1.13 ‘SRC’ means Student Representative Council.
1.14 ‘Staff’ means an employee of the University and includes an applicant for
employment at the University.
1.15 ‘Student’ means a registered student of the University.
1.16 ‘Third party’ is an individual or company active within the University business
and/or environment who is neither staff nor student of the University.
1.17 ‘The University’ refers to the University of Cape Town.
1.18 ‘The University community’ is composed of staff, students and third parties.
1.19 ‘Victim’ refers to the person alleging that conduct constituting rape as defined in
this policy has occurred.
2.
GENERAL PROVISIONS
2.1 A student or staff member of the University who commits an act of rape is in
violation of this policy. Third parties who commit an act of rape are in violation of
this policy if they are subject, based on the terms of their relationship with the
University, to applicable University rules of conduct (hereinafter: “Third Parties
subject to University Rules”).
2.2 This policy applies to all incidences of rape involving University students and staff.
This policy also applies to incidences of rape involving Third Parties, provided that
in such cases, disciplinary action may only be instituted under this policy against
Third Parties subject to University Rules.
2.3 The University will treat all reports of rape as confidential and all victims with
respect and dignity.
2.4 The University will accept and treat all reported cases of rape in good faith.
2.5 The University will endeavour to ensure the safety, health, dignity and well-being
of the victim.
2.6 Victims are not required to pursue prosecution or a disciplinary process solely on
the basis that they have reported an incident of rape to SAPS or the University.
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2.7 University action upon a complaint will be independent of the initiation or outcome
of criminal proceedings.
2.8 The University will ensure that all cases are dealt with expeditiously.
2.9 Expeditious decision-making will take into account the nature of the conduct and
the impact thereof on the victim.
2.10 The University will ensure that all complaints are managed fairly and consistently.
2.11 The University will ensure that all decisions taken under this policy are recorded.
2.12 The University will keep comprehensive, updated and accurate information on all
reported incidences of rape.
2.13 The University will ensure that the RO remains accessible to all in need of support
services.
2.14 This policy prohibits retaliation against individuals for bringing a rape complaint.
2.15 An act of rape may also constitute an act of sexual harassment and vice versa. In
such cases the offence may be dealt with under both policies. Under no
circumstances, however, will an act of rape be dealt with solely under the sexual
harassment policy.
2.16 The University shall conduct appropriate rape response training for all relevant role
players.
2.17 The University shall regularly assess this policy and ensure its wide distribution to
members of the University community.
3.
REPORTING
3.1 All members of the University community who have experienced or have been
informed of an incident of rape falling under this policy must report it to the RO, with
the permission of the victim, as soon as is reasonably possible to do so and without
undue delay.
3.2 A rape complaint made to any member of staff, CPS, medical facility or warden must
be brought to the attention of the RO, with the permission of the victim, as soon as is
reasonably possible to do so and without undue delay.
3.3 A rape complaint can be made in person or through a third party and can be made
anonymously.
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3.4 Delayed reporting by a victim will not be perceived by the University as in any way
diminishing the credibility of the victim.
3.5 The University will encourage and support the victim in reporting incidents of rape to
SAPS.
4.
MEDICAL ATTENTION
4.1 Once an incident of rape has been reported, the victim must be informed of the
necessity of receiving immediate medical attention, including post-exposure
prophylaxis (PEP) for HIV, and all reasonable efforts must be made to promptly
transport the victim to the University medical facility.
4.2 Any member of staff, CPS, the RO or a warden must, at the scene of the rape or as
soon thereafter as is reasonably possible, or when an incident of rape is reported,
render such assistance to the victim as may be required in the circumstances,
including making the necessary transport and logistical arrangements for her/him to
receive immediate medical treatment.
4.3 A medical examination does not imply the initiation of criminal or disciplinary
proceedings.
5.
COMPREHENSIVE RAPE RESPONSE
5.1 The University, through the RO, will provide a comprehensive rape response to
members of the University community. This will include access to:
a. Supportive measures, including crisis counselling, emergency medical
services, para-legal advice and other relevant services; and
b. Protective measures to mitigate the impact of rape or the reporting thereof
upon the victim.
5.2 The University’s supportive and protective measures will be available to the victim
regardless of the institution of criminal or disciplinary proceedings.
5.3 Protective measures shall include, but are not limited to:
a. No-contact orders:
i. which are valid for an initial period of 6 months; and
ii. which can be reviewed and renewed until such a time as;
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1. the victim, in consultation with the RO no longer deems it
necessary; or
2. the disciplinary hearing has concluded;
iii. the precise terms of the order will vary depending on the individual
circumstances of the case.
iv. violation of a no-contact order constitutes serious misconduct and may
be subject to disciplinary action.
5.4 Change of University residence;
5.5 Change of academic classes and academic relief where possible;
5.6 Medical/health leave from the University.
6.
THE RELEVANT OFFICE
6.1 In order to provide the maximum response, protection and support services, the
Relevant Office will maintain its neutrality in all cases of rape. .
Institutional Measures
6.2 The RO shall:
a. establish protocol-based relationships with all stakeholders, including
SAPS, the National Prosecuting Authority, Department of Social
Development, Groote Schuur Hospital, UCT law clinic and external
support agencies;
b. maintain updated referral lists and information on relevant internal and
external service providers to be kept at the RO and made available on the
UCT website and disseminated on campus;
c. make and maintain a record of every reported case of rape;
d. make and maintain a record of all decisions taken under this policy;
e. work with other role-players in the University to ensure effective
communication and dissemination of this policy.
Advice and Assistance to Complainants
6.3 Once the RO has been informed of a rape report it must establish contact with the
victim and:
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a.
assign an appropriate support person to the assistance of the victim;
b.
ensure that s/he has received medical attention, including post-exposure
prophylaxis for HIV, sexually transmitted infections and pregnancy;
c.
ensure that s/he has been informed of available crisis counselling;
d.
ascertain whether s/he has made a complaint to SAPS and if not, encourage
and assist her/him to do so;
e.
provide an appropriate environment for the victim to make her/his statement if
such statement is necessary, and offer assistance in making the statement;
f.
provide information on the criminal justice process and explain the support
role that can be fulfilled by the support person of the RO;
g.
educate the victim about the substantive differences between the criminal
justice process and the University disciplinary process;
h.
inform the victim of her/his right to legal representation in disciplinary
proceedings, and where requested, liaise with the legal representative;
i.
provide the victim with a referral list of legal representatives with the
necessary expertise in disciplinary proceedings and rape cases.
i.
The University shall endeavour to provide referrals for legal
representatives who would provide their services on a pro-bono basis.
ii.
If a legal representative cannot be retained on such basis, it is
recommended that the University cover the costs associated with such
legal representation.
j.
inform the victim of the possibility of University disciplinary proceedings and
assure her/him that the support person of the RO may not be called as a
witness during any such proceedings;
k.
inform the victim of the supportive and protective measures available to them;
l.
provide a referral for the victim to receive longer term counselling;
m.
offer to maintain regular contact with the victim through a schedule of regular
meetings/ email correspondence;
n.
reassure the victim that s/he will not face job loss (in the case of employees)
or any adverse consequences if she/he chooses to participate in disciplinary
proceedings;
o.
advise the victim that she/he retains the right to decline to testify or otherwise
participate in disciplinary proceedings initiated under this policy;
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p.
advise the victim that no negative inference will follow as a result of late
reporting;
q.
advise the victim that the ultimate decision whether to institute disciplinary
proceedings lies with the University, which may choose to follow a formal
University procedure even if the victim does not wish to do so.
Advice and Assistance to Alleged Perpetrators
6.4 While the primary aim of this policy is to assist victims of rape, an alleged perpetrator
may at any stage approach the RO for advice on the application and interpretation of
this policy.
6.5 In such instances the RO shall:
a. provide the alleged perpetrator with accurate information on the interpretation
of this policy and protocols;
b. advise the alleged perpetrator of her/his right to obtain legal representation
and the availability of counselling;
c. advise the alleged perpetrator that there are formal University procedures in
place to deal with accusations of rape and that if s/he is found to have violated
this policy s/he may face dismissal or expulsion from the University;
d. advise the alleged perpetrator that the victim may choose to follow a formal
University or criminal justice procedure, but that the ultimate decision
whether to institute disciplinary proceedings lies with the University, which
may choose to follow a formal University procedure even if the victim does
not wish to do so;
e. explain the protective measures available to the victim and the implications
thereof for the alleged perpetrator;
f. advise the alleged perpetrator that the procedures set out in this policy will be
followed in a procedurally and substantively fair manner.
Advisory Panel
6.6 With respect to any rape report made under this policy, the RO Director may appoint
an Advisory Panel that may consist of the following persons:
a. The RO support person assisting the victim;
b. The Hearing Officer assigned to the matter;
c. A person representing the Dean of Student Affairs, if the victim or alleged
perpetrator is a student;
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d. A person representing Human Resources, if the victim or alleged perpetrator
is a staff member;
e. A person (not necessarily a staff member of the University) with expert
knowledge in the field, if such a person is deemed necessary by the Director.
6.7 The main function and purpose of this Panel will be to:
a. Assist the Director with information, suggestions and expertise, to enable the
best possible advice and support for the complainant;
b. Participate in a process that will provide an enabling, supportive and learning
environment for the staff and structure of the RO.
c. Assist in the preparation of a formal memorandum of written complaint for
the victim.
7.
CRIMINAL COMPLAINTS
7.1 The University encourages rape victims to make an official report to SAPS.
7.2 Where the victim chooses to make an official report to SAPS, the RO will assist
her/him in this respect, by:
a. where possible, arranging for an investigating officer from the relevant police
station to come to the RO to take the victim’s statement; or
b. arranging University transport for the victim and a maximum of two support
persons to go to the relevant police station.
7.3 The RO must coordinate with the police, the prosecutor, the law clinic and all
relevant role players to ensure that the case is, as far as is practicable, dealt with
expeditiously.
7.4 With the consent of the victim, the RO shall keep duplicates of all important
documents, including the victim’s statement and the J88 (medico-legal report).
7.5 The RO shall provide or refer the complainant to a suitable organisation for court
preparation and support.
7.6 The RO must monitor the progress of criminal proceedings and keep the complainant
informed thereof.
8.
UNIVERSITY DISCIPLINARY PROCEDURE
General
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8.1 The purpose of this University Disciplinary Procedure is to ensure that appropriate
disciplinary action is taken against violators of this policy, whether they are
students, staff or third parties subject to University rules, in a manner that is fair,
consistent, timely, impartial and confidential.
8.2 This procedure must be followed in all instances where a formal rape complaint is
lodged.
8.3 University disciplinary proceedings are viewed as completely separate from any
pending criminal charges. The aim of this policy is to ensure a safe and healthy
working, living and learning environment. The role of the criminal justice system is
to investigate and punish criminal conduct.
8.4 The University will generally seek to complete its disciplinary process as
expeditiously as possible and independently of criminal proceedings in the criminal
justice system.
8.5 Where disciplinary procedures are initiated under this policy the Vice-Chancellor or
responsible Deputy Vice-Chancellor shall consider and implement means to ensure
that the complainant is not disadvantaged or subjected to reprisals of any kind by
any person by reason of making the complaint.
Initiation of Disciplinary Action
8.6 A rape victim may choose to initiate a University disciplinary procedure. However,
in fulfilment of its obligation to protect members of the broader University
community, the University retains the right to initiate formal proceedings against an
alleged perpetrator regardless of the victim’s decision.
8.7 Where the victim chooses to, the RO will assist her/him to initiate disciplinary
action against the alleged perpetrator in accordance with the University’s
disciplinary procedures and this policy.
8.8 Where a victim lodges a formal complaint there will be a hearing.
8.9 If the victim chooses to proceed with formal disciplinary action s/he must prepare
and sign a written statement, in accordance with the relevant protocol, providing
full particulars of the incident.
8.10 If the victim chooses not to lodge a formal complaint, the RO shall prepare a
written statement setting forth the known particulars of the case as well as the fact
that the victim has declined to participate in formal disciplinary action. The written
statement shall also include the RO’s recommendation, based on the foregoing
information, as to whether there is sufficient evidence, without the participation of
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the victim, to proceed with disciplinary action. A copy of the RO’s statement shall
be provided to the victim.
8.11 A copy of the complainant’s written statement or of the RO’s written statement, as
the case may be, shall be delivered to the Vice Chancellor or the responsible Deputy
Vice Chancellor. Where the victim has chosen not to participate, the Vice
Chancellor or responsible Deputy Vice Chancellor shall decide, based on the RO’s
recommendation, whether to initiate disciplinary action.
8.12 Following initiation of disciplinary proceedings, an Advisory Panel will be
convened by the RO to discuss all relevant information, and assist in the
formulation of a memorandum of complaint based on the written statement of the
complainant (or the RO’s statement, as the case may be). The memorandum of
complaint shall be forwarded to the Vice Chancellor, for information, and to the
Director of the RO.
The Role of the RO
8.13 The formal process of investigation and hearing of the case will be initiated through
the RO, with appropriate consultation.
8.14 The RO must appoint a senior level Hearing Officer who will investigate the matter
and lead evidence on behalf of the University during the formal hearing. The
complainant’s statement (or that of the RO, as the case may be) shall be forwarded
by the RO to the Hearing Officer.
8.15 The RO must keep the complainant informed of the progress of the disciplinary
process at all times.
8.16 The RO must inform the alleged perpetrator that a formal complaint has been filed.
The notification must:
a. be in writing;
b. contain details of the allegations against him/her; and
c. contain information regarding access to the RO.
8.17 The RO will be responsible for making the following arrangements:
a. Arranging a venue, date and time for a disciplinary hearing or appeal
proceedings;
b. Providing notifications, up-dates and report-back correspondence to relevant
parties, or relevant departments, faculties and or units;
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c. Making available a Recording Officer for disciplinary proceedings, as well as
ensuring the safe-keeping of the record. Transcripts of the record will be made
available on request only, and at the discretion of the Director of the RO. The
Recording Officer will be appointed and remunerated on an ad hoc basis, from
the budget of the Vice Chancellor’s Office;
d. Making available an interpreter, if requested by a party to the proceedings.
The interpreter will be appointed and remunerated on an ad hoc basis, from
the budget of the Vice Chancellor’s Office.
Appointment of Presiding Officers
8.18 Disciplinary proceedings instituted under this policy shall be presided over by three
Presiding Officers, one of whom shall be designated the Chairperson.
8.19 The Presiding Officers shall be appointed by the Vice Chancellor. The Presiding
Officers may be UCT staff members. The process of such appointments are to be
handled in liaison with the RO and any fees associated with such appointments are
to be drawn from budget directly linked to the Vice Chancellor’s Office.
8.20 Appointment of Presiding Officers must take into account the need for experience
in the management of disciplinary processes, experience in the area of sexual
offences legislation, experience in the processes required to protect the
complainant, alleged perpetrator, and all possible witnesses for the duration of the
disciplinary process, and a reasonable understanding of the issues relevant to the
nature of rape.
8.21 A list of potential Presiding Officers available for a three-year cycle shall be drawn
up by the RO director, in consultation with appropriate colleagues both on and off
the UCT Campus, for submission to the Vice Chancellor and for formal approval by
Council.
8.22 Any one of the Presiding Officers may be requested by the Hearing Officer, the
alleged perpetrator or the complainant (or their representatives) to recuse
him/herself from presiding in a disciplinary or appeal hearing. Good cause must be
shown by the applicant why perceptions of impartiality will be materially
influenced under the circumstances. In the event of a Presiding Officer having
recused him/herself, the Vice Chancellor shall appoint an appropriate replacement
as soon as reasonably possible.
The Victim’s Legal Representative
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8.23 The victim, as formal complainant, shall be entitled to a legal representative who
may be present throughout the proceeding and at any meeting or conference which
the complainant is entitled to attend.
8.24 The University will endeavor to assist the complainant to retain a legal
representative on a pro-bono basis and, if this is not possible, will consider the
recommendation of this policy that the costs of the complainant’s representative be
borne by the University.
8.25 The University will endeavor to ensure that the legal representative retained for the
complainant has experience in the management of disciplinary processes, expertise
in the area of sexual offences litigation, experience in the processes required to
protect the complainant for the duration of the disciplinary process, and a good
understanding of the issues relevant to the nature of rape.
8.26 The complainant’s legal representative shall provide support to the complainant as
needed throughout the proceeding. For example, the complainant’s representative is
encouraged (without limitation) to:
i.
explain the nature and the order of the proceedings to the complainant;
ii.
inform the complainant of her/his rights as a witness under this policy;
assist the complainant in preparing her/his testimony;
iii.
confer with the Hearing Officer;
iv.
and liase between the Hearing Officer and the complainant.
8.27 The complainant’s legal representative shall have no right to examine witnesses or
otherwise to participate in a formal capacity in the disciplinary hearing.
The Alleged Perpetrator’s Representative
8.28 The alleged perpretator may, at his/her own expense, appoint a representative to
represent him/her at the disciplinary, or subsequent appeal, hearing. Such
representative may be any one of the following:
a. A union official;
b. A fellow employee;
c. A legal representative (a person admitted to practice as an advocate or lawyer
in South Africa).
Notice of the Disciplinary Hearing
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8.29 At least seven (7) working days’ written notice of the disciplinary hearing must be
given to the alleged perpetrator, to the complainant and to the Hearing Officer. The
notice period can be waived upon mutual agreement of all three of the foregoing
parties or their representatives.
8.29 The notice must provide reasonable and sufficient information with regard to the
following:
a. A copy of the Memorandum of Complaint setting forth the rules of conduct
that have allegedly been violated by the alleged perpretator, as well as the
alleged facts that support those allegations;
b. The date, time, and venue of the hearing;
c. The right to be represented at the hearing;
d. The right to the services of an interpreter, if required (to be provided and paid
for by a budget directly linked to the Vice Chancellor’s Office).
The Disciplinary Hearing
8.30 Regardless of time frames indicated in any other applicable disciplinary codes,
every endeavour must be made to ensure that the disciplinary procedure contained
in this policy commences and is concluded as a matter of urgency.
8.31 The University shall endeavour to conclude the disciplinary proceeding within a
period of 30 working days from its commencement.
8.32 Disciplinary hearings and subsequent appeal hearings are confidential and shall be
held in camera.
8.33 No information relating to the proceedings or any part thereof held under this policy
shall be published in any manner whatever. In particular, no person shall publish in
any manner whatever any information which might reveal the identity of the
complainant, provided that the Presiding Chairperson may authorize the publication
of such information if he/she is of the opinion that such publication would be just
and equitable.
8.34 Only the following persons should be present throughout a disciplinary hearing:
a. The Presiding Officers;
b. The complainant’s legal representative, if one has been appointed;
c. The alleged perpetrator, provided that the failure of the alleged perpetrator to
be present at a disciplinary hearing and/or appeal proceedings, either
personally or through a representative, without valid and sufficient reason,
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shall not invalidate the proceedings. The hearing may then take place in the
absence of the alleged perpetrator and the record will reflect this.
d. The alleged perpetrator’s representative, if one has been appointed;
e. The interpreter, if one has been appointed. By the commencement of the
hearing, the Presiding Chairperson shall establish the necessity of an
interpreter. The interpreter will be acceptable and available to all parties at the
disciplinary hearing.
f. The recording officer, who shall be a competent person to record the
proceedings in audio- electronic format, as well as to keep written minutes to
accurately reflect appearances, sequence of proceedings and arrangements
particular to the hearing.
8.35 Witnesses, other than the complainant, shall be present at the disciplinary hearing
only when testifying.
8.36 The complainant shall be the first witness to testify at the hearing and shall have the
right to be present throughout the rest of the hearing.
8.37 In addition to the complainant’s representative, the complainant may appoint a
support person of his/her choice who may be present at any time that the
complainant is present and may remain by the complainant’s side at all times,
including during the complainant’s testimony.
8.38 Support persons from the RO who have provided support to the complainant may
not be called as witnesses at the hearing.
Conduct of the Disciplinary Hearing
8.50 At the commencement of the hearing, the Presiding Chairperson shall read the
Memorandum of Complaint and request the alleged perpetrator to answer the
allegation. The response shall be entered into the record of the proceedings.
8.51 The Presiding Chairperson shall conduct the hearing in a manner that is procedurally
and substantively fair, and in accordance with the principles of natural justice.
8.52 The Hearing Officer shall lead evidence and present the case against the alleged
perpetrator. The Hearing Officer has the right to:
a. Make an opening statement to outline or clarify the case against the alleged
perpetrator;
b. Call witnesses and introduce admissible evidence;
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c. The right to object and challenge;
d. Re-examine witnesses after cross-examination by the alleged perpetrator or
his/her representative;
e. Cross-examine witnesses called by the alleged perpetrator or his/her
representative;
f. Make a closing statement before a finding is made;
g. Call witnesses and introduce admissible evidence after a finding of a
contravention of the policy to assist the Presiding Officers to consider the
most appropriate sanctions;
h. Appeal against the finding where good cause can be shown that aspects of the
procedure, finding and/or sentence were unfair.
8.53 The alleged perpetrator (or his/her representative, on his/her behalf) has the right to:
a. Make an opening statement to respond to the opening statement of the
Hearing Officer or clarify the case against him/her.
b. Give evidence him/herself and call witnesses in support of his/her defence, as
well as introduce other forms of admissible evidence;
c. Re-examine witnesses after cross-examination by the Hearing Officer;
d. Cross-examine witnesses called by the Hearing Officer;
e. Make a closing statement before a finding is made;
f. Appeal against the finding where good cause can be shown that aspects of the
procedure, finding and/or sentence were unfair.
8.54 Notwithstanding the above, an unrepresented alleged perpetrator shall not be
entitled to directly cross-examine the complainant and shall put any questions to the
complainant by stating them to the Presiding Chairperson, who shall repeat the
question accurately to the complainant.
8.55 The complainant shall be the first witness to testify at the hearing. The witness
shall be given the opportunity to tell her/his story in an uninterrupted fashion. Such
storytelling may be facilitated by the Hearing Officer, who may proceed to further
examine the complainant once the he/she has concluded her/his remarks.
8.56 The complainant has the right to avoid face to face interaction with the alleged
perpetrator. The Presiding Chairperson shall ensure that the complainant is shielded
or otherwise protected from facing the alleged perpetrator.
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8.57 No evidence as to any previous sexual experience or conduct of the complainant,
other than evidence relating to sexual experience or conduct in respect of which the
allegation has been made, shall be adduced, and no question regarding such sexual
experience or conduct shall be put to the complainant, the alleged perpetrator or any
other witness, unless the Presiding Chairperson has, on application by any party to
the proceedings, granted leave to adduce such evidence or to put such question.
8.58 Before an application for leave contemplated in the foregoing section is heard, the
Presiding Chairperson may direct that any person, including the complainant,
whose presence is not necessary, may not be present at the proceedings.
8.59 The Presiding Chairperson shall, subject to the following section, grant the
application referred to in section 8.57, if satisfied that such evidence or questioning:
a. Relates to a specific instance of sexual activity relevant to a fact in issue;
b. Is likely to rebut evidence previously adduced by the Hearing Officer;
c. Is likely to explain the presence of semen or the source of pregnancy or
disease or any injury to the complainant, where it is relevant to a fact in issue;
d. Is not substantially outweighed by its potential prejudice to the complainant’s
personal dignity and right to privacy; or
e. Is fundamental to the defence of the alleged perpetrator.
8.60 The Presiding Chairperson shall not grant an application referred to in section 8.57
if, in her/his opinion, such evidence or questioning:
a. Relates to the sexual reputation of the complainant and is intended to
challenge or support the credibility of the complainant;
b. Is sought to be adduced to support an inference that by reason of the sexual
nature of the complainant’s experience or conduct, the complainant:
i. is more likely to have consented to the violation of this policy that
is the subject of the hearing; or
ii. is less worthy of belief.
8.61 The Presiding Officers may ask clarifying questions to the complainant, the alleged
perpetrator (or his/her representative) or any witness, at any stage of the
proceedings.
8.62 The Presiding Chairperson may re-call any witness(es) that has given evidence, or
request the presence of any witness, or expert witness, that has not been called by
the Hearing Officer or alleged perpetrator (or his/her representative), if such
evidence is deemed necessary by the Presiding Officers.
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8.63 Expert testimony with respect to the psycho-social impact of rape may be brought
for the purpose of proving whether a sexual offence which is the subject of the
hearing is likely to have been committed:
c. Towards or in connection with the complainant;
d. under the circumstances described in 1.9 b) (ii).
8.64 In determining the weight to be attached to evidence adduced in terms of the
foregoing section, the Presiding Officers shall have due regard to the qualifications
and practical experience of the person who has given such evidence in matters
relating to sexual offences, and all other evidence given at the proceedings.
8.65 Where the Hearing Officer or the alleged perpetrator (or his/her representative)
wishes to call as a witness a person whose testimony or other evidence relates to
information obtained from the complainant in confidence, such as a counsellor or
religious advisor, leave must first be granted by the Presiding Chairperson, on
application by any party to the proceedings. Leave shall be granted if the Presiding
Chairperson determines that such testimony is relevant. Section 110 above shall
apply to application for leave to call a witness under this provision.
8.66 After the Hearing Officer and the alleged perpetrator have concluded the
presentation of evidence and final arguments, the Presiding Officers must come to a
finding on the balance of probabilities and give reasons, within a reasonable time.
8.67 The balance of probabilities standard to be applied in hearings under this policy is
met if the preponderance of evidence supports the allegation. In applying this
standard, the tribunal shall consider the evidence put forth by both the Hearing
Officer and the alleged perpetrator, or his/her representative.
8.68 The Presiding Officers shall not draw any inference from the length of any delay
between the alleged commission of such offence and the reporting thereof.
8.69 The Presiding Officers shall be obliged to consider relevant legal precedent if
necessary and appropriate under the circumstances.
8.70 The Presiding Officer may postpone the case for considering the evidence before
giving a finding and reasons.
8.71 The judgment and reasons must be in writing and available to the Hearing Officer,
the complainant, and her/his representative, and the alleged perpetrator, and his/her
representative, as soon as possible after the hearing.
9.
ACCESS TO UNIVERSITY RECORDS
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9.1 Where the alleged perpetrator or her/his representative requires access to records held
by the University, other than the investigation file, an application must be made in
writing to the Presiding Chairperson setting out the reasons for this request. The
Hearing Officer and the complainant, or her/his representative, must be given the
opportunity and a reasonable time period to respond to this request. Furthermore:
9.2 The tribunal must provide written reasons for any decision taken under this section;
9.3 in deciding upon this request the complainant’s dignity shall be the paramount
consideration.
10. APPEALS; COUNCIL’S POWERS OF REVIEW
10.1 The appeals procedure and the Council’s powers of review, set forth in sections
10.10 of the UCT Sexual Harassment Policy shall apply to proceedings conducted
under this policy.
11. WHERE AN ALLEGED PERPETRATOR IS FOUND TO BE IN VIOLATION
OF THIS POLICY
Where an alleged perpetrator is found to be in violation of this policy, the disciplinary
body must implement sanctions. Sanctions may include:
11.1 dismissal (of employees), termination of contract or partnership (for third
parties), exclusion (for students)
12.
CONFIDENTIALITY
12.1 Allegations of rape are potentially defamatory because of the impact they may have
on an alleged perpetrator’s reputation and may have a serious impact on the position of
the alleged perpetrator’s position within the University. For that reason:
12.2 The University must ensure that rape complaints are investigated and handled in a
manner that ensures that the identities of the persons involved are kept confidential.
12.3 The University and the parties concerned must endeavour to ensure confidentiality
during the disciplinary hearing.
12.4 The University is required to disclose to the complainant, the alleged perpetrator
and/or their representatives, only such information as may be reasonably necessary to
enable the parties to prepare for any proceedings in terms of this code.
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13.
RECORD KEEPING
13.1 Because the effective communication of this policy could impact on the
University’s liability, the RO shall keep a detailed record of the communication of
this policy. In this regard the RO shall, during January of each year, prepare a
detailed report on the communication of this policy during the previous year for
review by the Vice-Chancellor.
13.2 The RO Director shall keep a detailed report of the number and nature of referrals
made in terms of this policy. The RO director will institute and maintain with the RO
an efficient and well-managed system for the production, safe-keeping, and
evaluation of all records made in connection with complaints brought to the RO.
14.
MISCELLANEOUS
14.1The procedures set forth in this policy are to be understood as part of the Disciplinary
Codes and Procedures for Staff, pay-classes 1-12, the Rules on Student Conduct, and
the Disciplinary Procedures for Academic Staff. With respect to an incident of
alleged rape, should there be any incongruence between the rules or procedures set
forth in this policy and those set forth in the aforementioned documents, the
procedures set forth in this policy shall prevail.
14.2 Nothing in this policy prevents either the victim or the alleged perpetrator from
instituting civil or criminal action under the common law or any other relevant statute.
14.3 It will be a disciplinary offence to victimize or retaliate against a complainant who
lodges a complaint of rape in good faith. Where such victimization or retaliation are
made, the University shall take all steps possible to investigate the complaint, and to
ensure as far as is possible the safety and well-being of the complainant.
14.4 Where appropriate, a number of complaints may be dealt with as one complaint.
14.5 A negligent failure of supervisory or managerial employees to observe and
implement the terms of this policy is regarded as serious misconduct and may result
in disciplinary action being taken, resulting in dismissal.
14.6 s policy must be reviewed every two years. The review process will be managed by
the office of the Vice-Chancellor.
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