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The woman at the centre of the David Masondo imbroglio is suing the university over a sexual abuse case, highlighting institutional failure.
"I repeatedly and clearly told him that I did not want to have unprotected sex. He agreed and we continued kissing. Suddenly, he penetrated me. I was shocked. I didn't know what to do. At no stage had I consented to being penetrated."
These allegations are contained in a review application, brought by a 30-year-old law student against the University of South Africa (Unisa) and a professor who allegedly abused her in 2014.
amaBhungane can reveal that this student is the same woman who claimed wrongful arrest after deputy finance minister David Masondo initiated a case of extortion against her.
The student is Masondo's ex-lover who was pregnant with his child and had an abortion.
Last year, the Hawks mounted an undercover sting, leading to her arrest – an operation the woman brands as an abuse of state resources to settle Masondo's personal dispute with her. Masondo has denied wrongdoing, saying her "repeated harassment" justified him laying charges.
After months of delay, the National Prosecuting Authority declined to prosecute her (see Masondo's ex-lover demands R1m for 'wrongful arrest'), raising more questions about the probity of the institutional forces that orchestrated her arrest.
Now evidence has emerged suggesting the Hawks' action represented a repeat victimisation of this woman by a system tilted to favour the powerful – the first occasion being when her complaint against the professor was mishandled by Unisa.
In a case that began long before her fallout with Masondo, she has gone to court to overturn the university disciplinary process that ended up clearing the professor of charges of sexual harassment.
She is also asking the Gauteng High Court in Pretoria to order Unisa to draft and implement a policy to regulate the proper reporting and processing of sexual harassment and sexual abuse at the university.
Central to her case are arguments that the university took a cavalier approach to her complaint and that the disciplinary committee made an egregious error when it found that she had given consent that extended to unprotected sex – something she vehemently denies.
The review application, launched in 2018, seeks to replace the "not guilty" finding with a "guilty" finding against the professor, alternatively, that the court remit the matter to Unisa for a new decision from a reconstituted disciplinary committee.
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The student is being represented by the Legal Resources Centre.
In what is stacking up to be an embarrassing exposure of the university's attitude to dealing with sexual contact between staff and students, Unisa is strongly defending its conduct and is also attempting to block the admission of a women's advocacy group as a friend of the court.
The Women's Legal Centre has applied to join the case as an amicus curiae to provide evidence to the court about the systemic nature of sexual abuse in South Africa as well as the need for a victim-centred approach to dealing with complaints.
Admission of an amicus curiae is generally uncontroversial, but Unisa has strenuously opposed the application, accusing the Women's Legal Centre of "malicious intent" to try to "re-arrange policies" at Unisa "on the absurd grounds that they ought to be victim-centred".
In 2017, the student also launched a separate R950 000 damages claim against Unisa and the professor, in which she is being represented by a private law firm, Fluxmans.
Unisa is opposing both matters, stating that there are no grounds, legally or factually, for the relief sought.
Where it all started
In the review application, the student details how she met with the professor on November 17, 2014 in his office to discuss a novel she had been writing.
She talked to the university's publishers and they suggested she approach an academic to assist her with the editing.
She picked the professor off the Unisa website, called him to arrange a meeting and emailed him the first two chapters.
They had never met before.
She records: "He told me that he had read my chapters and was very impressed. We went on to discuss my novel, the inspiration behind it and my life in general. Our first meeting was lengthy. The conversation had the tone of a mentor speaking with a mentee…
"During our meeting, it began to rain. I told the professor that it was time for me to leave. He offered to give me a lift home and I accepted. During the walk to the car and the trip home, it became clear that the professor had a romantic interest in me. I was flattered and was dazzled by the fact that he was a professor, an educated and well-respected man."
At her flat, she stated, the two started kissing and she realised that the professor wanted to go further.
She suggested the two go out and get condoms from a neighbouring café in her complex.
The woman claims the professor assured her that they would not have penetrative sex. She states: "I trusted him when he told me that we would not have sex… At no point did I consent to sex without a condom.
"The professor went on kissing and touching me. All of a sudden, he penetrated me. I froze. My body could not move and I was dismayed. He continued to penetrate me, but it did not last very long. I tried to push him off, but he was too heavy and told me not to worry. He ejaculated inside of me and then lay where he was – inside of me and on top of me.
"I used my hand to remove his penis from my vagina. When I did so, I felt that he had genital warts on his penis. I was shocked and became numb. He went to the bathroom. I kept telling myself that he was a decent and educated man, and it would all be okay. He stayed for a while and made small talk…
"I was upset and confused by his behaviour – he had just penetrated me against my will but was acting as though nothing had happened. I had trusted him and he had betrayed that trust."
After the incident, she says, she spent the evening in her flat, feeling overwhelmed and worried.
Contested
The student's version is by no means uncontested.
Unisa's vice-principal for institutional development and transformation filed an answering affidavit on behalf of both the university and the professor (according to the filing sheet) – suggesting Unisa made common cause with its employee against its student.
The respondents' version includes the claim that the student "engaged in a consensual intimate moment" with the professor and a denial that she was "ever pressurised in any way … to do anything she did not wish to".
The university cites the professor's testimony at the disciplinary inquiry, claiming the student "was the initiator of the romantic gesture on the day in question" and his denial that there was "a penetrative sexual act between them".
As we will see, the university's response is somewhat misleading, given that the disciplinary committee took the view that it did not need to decide whether penetration had taken place or not.
The student observes in her reply: "I note that the university has taken a firm stance about what happened during the assault, without having first-hand knowledge and in the face of clear evidence to the contrary by myself. This is indicative of the university's attitude throughout its dealings with me."
Secondary victimisation
Let us leave aside for now the dispute over exactly what happened between the student and the professor.
Beyond that, the seemingly uncontested facts about how the university responded when the student spoke up – and how it continues to respond – tell a dismal story of, at best, the marginalisation of the complainant.
She says that after the incident, she was not sure how to handle the situation.
In early December, she felt sick and sent the professor a message, saying that she hoped he had not infected her. She asked him to take an HIV test and provide her with the results.
"He responded by stating that he knew what I was up to. I did not understand his response and requested (again and again) that he get tested."
"On or around December 8, 2014, I informed him that we should meet at Unisa to discuss the HIV test. He refused to get tested. I told him that I would report him to the vice-chancellor of Unisa if he did not agree. He persisted in his refusal.
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After his refusal, the student approached the office of the vice-chancellor to lay a complaint, but was referred to the dean of students.
The dean arranged for the student to meet with her in her car as she (the dean) said the matter was sensitive. The student was asked to write up a statement, which she emailed to the dean on 20 December 2014.
The student complains that at no stage did the dean advise her about how to proceed, whether it be to lay a charge with the police; or explain the process for lodging a formal complaint of sexual harassment at Unisa; or assist her to get medical attention; or refer her to a counsellor.
"The only thing that [the dean] said to me was that I should sue Unisa because they do not have a proper sexual harassment policy."
Delays
The dean informed her that, given that it was a week before Christmas, she could not get hold of the professor, and promised to contact her when he responded.
Contact resumed in January 2015, when the dean informed the student that the professor had agreed to get tested. However, this did not happen.
On February 27, the student wrote to the dean, asking her to accompany the student to get tested for HIV as it did not look like the professor was going to comply. The student also requested that "we should take further steps".
On March 15, 2015, she received an email from the dean, confirming that she would arrange a meeting to pursue the matter through the disciplinary processes of the university "to ensure that justice is done".
The student records: "She never … arranged the abovementioned meeting. I responded to the email … telling her that I was not coping... I reiterated that he had sexually assaulted me and had not used protection.
"She assured me that the matter would be handled through the Unisa disciplinary process. However, she took no steps to initiate the disciplinary process… As I later found out, one of the only actions she took during this time was to share my statement with [the professor] without my consent."
The student states that by May 25, 2015, she had become frustrated and decided to sit outside the dean's office until she agreed to meet her.
By chance, the dean was concluding a meeting with a Unisa social worker and asked her (the social worker) to sit in. It was through this encounter that the student received her first real help. The social worker advised that the matter be escalated to Unisa's legal department and arranged for a victim impact statement to be taken.
Again the dean delayed filing the formal complaint. It was eventually filed by the social worker on July 7, 2015.
The social worker also advised the student to go for an HIV test.
Warts
The student records: "I went to the doctor for an HIV test and a pap smear. The doctor confirmed that I had been infected with a sexually transmitted disease by someone who had genital warts. I know that I was infected by [the professor]. I handed the report to [the Unisa legal representative] and it was never returned to me."
"In August 2015, I received [the professor's] statement (dated February 12, 2015)... It was shocking. His tone was deeply condescending and he did not seem to understand the severity of his conduct.
"I further reported the sexual assault to Akasia police station. I was informed by the investigating officer [that] they could not proceed with my case due to a lack of evidence. I am advised that this commonly happens in cases involving sexual assault."
On September 2, 2015, more than nine months after the student reported the incident to the dean, Unisa charged the professor with sexual harassment and a breach of the university code of conduct.
A disciplinary hearing was set down for September 30, 2015.
Representation
The student applied to have legal representation at the hearing. The request was denied and she was told she was "a witness only".
As a consequence, neither she nor anyone representing her was present during the testimony of the professor or any of the other witnesses.
She notes in her reply to Unisa's affidavit: "The callousness of the university is illustrated by its comment that 'as a witness, she had served her purpose by giving evidence when she was called in to do so. Her being absent from the proceedings thereafter has not affected the proceedings negatively.'
"This utterly disregards the negative impact on me, as the victim... I deny that [the Unisa prosecutor] adequately represented my interests. He represented the interests and case of the university. The transcript is further filled with abusive cross-examination and lack of any protection from the committee or [the prosecutor]."
Not guilty
On November 17, 2016, the student received an email from the university, stating that the professor was found not guilty of the charges against him.
The email neither explained the reasons for the ruling nor enclosed a written decision by the disciplinary committee. When the student asked for the detailed ruling, she was informed that she was not entitled to receive it as she was only a witness.
She only received a copy after the Legal Resources Centre got involved and her lawyer wrote to Unisa in January 2017.
How did the disciplinary committee reach its finding?
According to the student, it was via two crucial sleights of hand.
"I had testified that I had introduced myself to the professor as a student and the professor testified that I had introduced myself as a writer and a journalist. This issue was important in determining whether there was a perceived power imbalance between the professor and [me]."
According to the verdict, the version of the professor was given the benefit of the doubt "as the employer [Unisa] left it unchallenged" – which would seem to support the student’s complaint about the way in which Unisa failed to represent her properly.
That allowed the committee to conclude that, while the professor might have breached the code if he had known the woman was a student, the question of abuse of power would not arise in a situation where there were two consenting adults involved.
Regarding the student's version of the encounter, the committee appeared to come to the conclusion that, because there was consent to some form of sexual interaction, the question of harassment did not arise.
The committee explained it "was cognisant of the fact that the accused employee disputed that penetrative sex occurred, [but] the determination of whether there was penetrative sex or not was irrelevant to the charge of sexual harassment".
The student notes: "Although I consented to kissing and other forms of conduct, I did not consent to unprotected sex. The committee has adopted the approach that once consent has been given for one type of conduct, it applies to all subsequent conduct and cannot be withdrawn. This approach is irrational and unreasonable, and is based on a mistaken understanding of the applicable laws."
While Unisa delivers a spirited defence of its disciplinary finding, it offers almost no explanation for its shoddy handling of the complaint.
The student argues that the case raises "important issues about the treatment of victims and the handling of claims of sexual harassment and abuse by persons in positions of power at a public university".
The Women's Legal Centre concurs.
It notes: "The processes followed by Unisa at the preliminary, investigative stage of proceedings and later, during the disciplinary hearing, expressly marginalised the complainant."
The case has not yet been set down for hearing.
