Sue your abuser for damages: lawyer offers to represent women for free
As the country reels in the wake of yet another horrific act of violence on women, a lawyer is gearing up to give abused women an alternative legal strategy.
Tracey Lomax-Nixon, an attorney, is proposing civil litigation for survivors to make abusers pay with their wallets.
"For so many women, the court process doesn't give them the sense of closure that they so desperately seek," she said. "They end up being witnesses in a case where rights are centred on the accused."
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Prompted by the case of UCT student Uyinene Mrwetyana, who was allegedly murdered by a post office worker, Lomax-Nixon called on other lawyers to join her in representing women for free, to help them claim damages from their abusers.
"I hereby offer my services, pro bono, to women and children who have been raped or assaulted. Forget the criminal courts ... let's hit them where it hurts. I challenge all lawyers to do the same. Flood the courts with damages claims."
In a civil matter, a complainant must prove the case according to a balance of probabilities, rather than the stricter onus on the state to prove beyond reasonable doubt that the crime occurred. Civil claims also open the possibility of restorative justice.
Anger and outrage followed the discovery of the body of missing 19-year-old UCT student Uyinene Mrwetyana on September 02, 2019. She had been missing since August 24. A 42-year-old man who worked at the Clareinch Post office allegedly confessed to the rape and murder. Gender-based violence has been a national issue in South Africa for years, with 3 915 women and children being murdered in 2018.
Lomax-Hixton elaborated on the differences between the two legal processes.
"If you're a plaintiff, I act for you. The state doesn't do that. In a criminal trial, you're just a witness. In a damages action, you control the state of play. Make them pay. And if they can't, take their possessions. Take their cars ... And the burden of proof is 'balance of probabilities' not beyond reasonable doubt''."
"What lawyers are with me?"
Speaking to TimesLIVE, Lomax-Nixon dubbed the idea "Phoenix Rising".
"It is an alternative to criminal proceedings. It is to provide them with powerful advocates to protect them so that they aren't bullied under cross-examination.
"You start off trying to punish, then you move on trying to get a sense of admission."
She added: "We have been discussing it for a couple of years now. The most recent rapes and abductions have spurred us on."
"How do we create parallel processes and centre them on survivor rights? [The goal is] to empower her and let her know that they have won [the battle against their rapist]."
"Victims get re-traumatised by the court process."
Lomax-Nixon said she doesn't want to detract from the role of the National Prosecuting Authority (NPA) nor its efforts to ensure the correct sentence is handed to offenders. Rather, she would like to help ensure that women are able to take control over their cases and be protected by their own representation.
"We are very aware that the severity of the sentence is not what we should be fighting. There are always mitigating factors. We want to empower them by not taking away the rights of the accused.
"Where there is a blurring of the lines between what is and isn't consensual, litigation offers the approach of dialogue to the point that the accused could make an admission that what they did was rape. They are then required to make some sort of restoration."
She said that the NPA was against it, because it blurs their efforts.
However, in advocating for a civil claim, she felt a woman would have the protection of her attorney and it would be easier to prove that the crime was committed, enabling her to "walk away with a judgment which has said that he raped her. "That is very powerful," Lomax-Nixon said.
Money is not at the heart of the idea.
The damages amount could be small, for instance. But there are ways to pursue payment.
"She can use it at the credit bureaus to extract funds if they became available later down the line."
Lomax-Nixon further advised that not every case would suit this system.
"We can't take every case civilly. For starters, your claim lapses after three years," she said.