Prosecutorial Attrition: Its Implications for South Africa’s Domestic and International Obligations to Uphold Women’s Human Rights

Abstract

John Dugard states that a general rule of international law dictates that the conduct of a person with authority is an act of a state; however, the conduct of a private person is not considered to be an act of a state. An example is the state prosecutor. This research is concerned with the attrition of rape cases, with the purpose of determining whether rape prosecution failure is an international wrong of the state. To answer this, this study aims to broadly assess whether rape case attrition in South Africa is due to prosecutorial discretion being exercised in a deficient manner inconsistent with international human rights law, which leads to a violation of women's human rights and impunity for rape. This research will analyse evidence (i.e., the MRC report) that shows that prosecutors do not factually comply with international and constitutional standards. It is against the backdrop that this research argues that South Africa must ensure effective investigation and prosecution of rape cases to achieve compliance with international standards and the Constitution.