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Legislative Change on Gender Based Violence and Femicide

 

On the 28th of January this year the President assented to laws that strengthen the fight against gender based violence (GBV) . He heralded this as a major step forward in fighting against the GBV epidemic and in placing the rights and needs of victims at the centre of interventions  

 

The President assented to: 

  1. the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill, 
  2.  the Criminal and Related Matters Amendment Bill, and 
  3. the Domestic Violence Amendment Bill. 

Between the 2019/2020 period South African Police Services (SAPS) crime statistics reported rape and sexual assault cases were 42 289 and 7 749 respectively . Covid-19 led to an increase in GBV internationally and domestically as many women were confined in their homes with their abusers. Migrant women and girls face compounding levels of vulnerability and harm in the form of xenophobia, racism and gender-based violence. Migrant women and girls, particularly those that are undocumented or have expired documentation are hesitant and unlikely to report GBV given their migration status. Migrant women in South Africa and across the African continent encounter a number of challenges in accessing their right to safety and security and protection against GBVF . It is hoped that these amendments to the law will protect and promote the rights of migrant women and girls and make recourse more accessible.  

The first amendment to the law improves the prevention of further sex crimes, especially to protect children, by expanding the scope of the National Register for Sex Offenders (NRSO), increasing the period in which an offender’s particulars must remain in the NRSO, and expanding the list of persons considered vulnerable. These are commendable protection measures with the potential to yield positive results if effectively implemented along with other measures such as improving the conviction rate, and successfully rehabilitating and reintegrating offenders into the community 

The second amendment aims to reduce secondary victimisation of vulnerable persons in court proceedings through allowing for intermediaries and evidence to be given through audio-visual links in proceedings other than criminal proceedings. It is a sad reality that survivors re-experience traumatic events when they report their ordeal to the police, testify, get cross-examined, and face their perpetrators in court. Research has shown that secondary victimisation has negative health consequences, and it discourages survivors from reporting. The new changes to the law make seeking justice less onerous for survivors. In addition, the law tightens bail and minimum sentencing provisions in the context of GBV. This could bring relief to survivors with fear of and at risk of re-victimisation if the perpetrator is released on bail and would prevent a repeat of circumstances like those in the infamous Carmichele v Minister of Safety and Security and Minister of Justice case . Extending sentences should be coupled with improvements in identification, arrest and prosecution of perpetrators. To quote from retired judge Justice Edwin Cameroon, “what inhibits crime is certainty: certainty of follow up, certainty of detection, certainty of arrest, arraignment, prosecution, and certainty of punishment. In all this, how long the sentence is plays very little role” . In closing on this point, it is in the best interests of society that the criminal justice system is accessible, reliable and informed by research as opposed to merely calling for the heavy hand of the law.    

Lastly, the third amendment to the law introduces two major changes in the legal framework of GBV. These are the introduction of electronic applications for protection orders and the removal of the “imminence” requirement under Section 8(4) of the Domestic Violence Act 116 (1998).  For the latter, in practice it means that a survivor can report a violation of their protection order without being expected to prove that they will be killed if the police do not make an arrest immediately. Previously the police had to use their discretion to judge whether the threat of harm was likely to happen, and that the only way to prevent it was by making an arrest, even in instances where there was a protection order in place and warrant of arrest. With the pandemic context and the aftermath of high levels of lock down, these implementations are more than welcome since they will facilitate enhanced survivor protection. Secondly there is an expansion of definitions of “controlling behaviour” and “coercive behaviour” and “domestic violence” to include spiritual abuse, elder abuse, coercive behaviour, controlling behaviour, and/or exposing/subjecting children to certain listed behaviours. While the expansion is positive, it is important to consider the implications of some of these on the under-resourced police service (SAPS) responsible for policing a wide range of work. Overall, this amendment is certainly a significant positive step towards handling GBVF and adds to the protection of GBV survivors and those at risk. 

As Scalabrini Centre of Cape Town we applaud the President and legislature and all individuals involved in the process leading to the signing into law of these legislative amendments.   We witness first-hand the consequences of GBV in our work with refugees and migrants some of whom have sought asylum in South Africa to flee persecution targeted at them on the basis of their gender. Some migrants are survivors of GBV in their country of origin and/or in South Africa. It is hoped that this article will assist in raising awareness of the new amendments to the legislation and help in their implementation. We strongly believe everyone has a part to play in eradicating the scourge of GBV and Femicide in South Africa, on the continent and across the world.  

 

  1. https://www.gov.za/speeches/president-cyril-ramaphosa-assents-laws-strengthen-fight-against-gender-based-violence-28 
  2. https://www.saps.gov.za/services/april_to_march_2019_20_presentation.pdf  
  3. https://sihma.org.za/Blog-on-the-move/the-exclusion-of-migrant-women-in-africa-access-to-safety-and-security  
  4. http://www.saflii.org/za/cases/ZASCA/2003/117.html  
  5. https://www.groundup.org.za/article/why-a-carceral-state-wont-solve-the-crisis-of-gender-based-violence/  

 

Covid-19 Lock-down: Important information for refugees and migrants in South Africa

This webpage centralizes information that is important for refugee and migrant communities to know about during the Covid-19 lock-down. Please contact us on Facebook or at info@scalabrini.org.za with your questions.

Banking

The Banking Association of South Africa confirmed that their banks do not automatically restrict such bank accounts as a result of expired asylum or refugee documentation.

Asylum seeker permits or refugee status which expired during lockdown (from 15 March 2020 onwards) are considered to have been extended up to, and including, 30 June 2021 (see “Documentation” below). If you are having difficulty accessing your bank account because your asylum seeker permit or refugee status expired during lockdown, you should print out these Department of Home Affairs’ Directions and take this to the bank, along with your document.

If you have further questions about this, you can contact our Advocacy Programme. To do so, please send a WhatsApp to 0782603536. This is operational between 9am and 4pm, Monday to Friday.

Children

Scalabrini runs a project focusing on non-South African / foreign children. We provide assistance in terms of child protection and documentation, and our team includes a social worker and auxiliary social worker. If you are concerned about the welfare of a child during lock-down please send an SMS or a ‘please-call’ to our Advocacy hotline on 0782603536.

Contacting Scalabrini

If you have a question for a specific programme, click here to find out how you can contact us at this time.

Documentation / Home Affairs

Asylum/refugee visas:

If your asylum seeker permit or refugee status has expired, or is due to expire, during lockdown (from 15 March 2020 onwards), it is considered to have been extended up to, and including, 30 April 2022. 

You can read these Directions and Amended Directions in a combined document here. This confirms the extension up to 30 June. Then, on 29 June, the Department of Home Affairs made an announcement extending this until 30 September 2021. You can see the announcement here. On 29 September , the Department of Home Affairs made an announcement extending this until 31 December 2021. You can read these Amended Directions here 

The Department of Home Affairs has also indicated that they will begin an online renewal process for asylum seeker and refugee documentation.

We have developed an infographic to guide you through this online process. Click here to see the infographic.

Refugee Reception Offices:

Refugee Reception Offices have not offered any face-to-face services since they closed at the beginning of lockdown.  As explained above, the Department of Home Affairs has also indicated that they will begin an online renewal process for asylum seeker and refugee documentation. See our infographic about this here.

Immigration visas (work, business, study, etc):

Home Affairs has said that visas which expired from 15 February 2020 will not be declared illegal or prohibited persons, nor will they be arrested or detained for holding an expired visa. They are considered to have had their visa extended up until 30 June 2021 – see amended regulations here. If they wish to apply for an extension, they may reapply for their respective visas or relevant visa exemptions while in the Republic immediately after the lockdown has been lifted. Furthermore, if your visa expired during the lockdown period and you wish to leave South Africa, you should not receive a ‘ban’ upon exiting South Africa.

Certain visas have been extended until 30 September 2021. You can read more about this here.

VFS Global: 

All applications pertaining to immigration visas in South Africa are to be made via VFS Global. VFS is accepting applications on temporary residence visas and waivers. Other services are to be phased in. Appointments must be made; please check the VFS Global South Africa site for more details.

Civic services at the Department of Home Affairs:

DHA confirmed in March 2021 that services such as birth registration, re- issuance of births certificates, death registration, applications for temporary identity certificate, applications for identity cards or documents, collection of identity cards or documents, applications and collection of passports, applications for amendments of personal particulars, applications for rectification of personal particulars, solemnisation and registration of marriages, all back office operational services to support front offices on the above services, visa services in terms of the Immigration Act and online renewal of refugee status and asylum seeker permits /visas.

IDs and travel documents for dependents:

The Department of Home Affairs has made certain services available for dependents (joined to the file) of recognised refugees. This means that if you have refugee status, and you have dependents joined to your refugee file or dependents who were previously joined, that dependent can now apply on email for an ID or travel document if they can show supporting documentation that they are writing matric, enrolling in further studies, or taking up employment. You must have all the supporting documents listed in the DHA document shown here, and can email a request to enabledocument.asm@dha.gov.za

Driving

Regarding all learner’s licences, driving licence cards, temporary driving licences and professional driving permits that expired between March 26 and December 31 2020: these are deemed to be valid, and their validity periods have been extended until August 31 2021. 

In terms of driving licenses, people on asylum seeker or refugee documentation should also be provided with services at licensing services centres. If you are denied this service, you can contact Scalabrini’s Advocacy Team. To do this, you can send a WhatsApp to 078 260 3536. Or you can call, SMS or send a please-call-me to 083 433 5062. This will be logged and one of the Advocacy team members will get back to you.

Emergency Contacts

If you feel unsafe during lock-down, or want to report a crime, or need a similar urgent services, click here to see a list of numbers to call who can support you – which has been translated into different languages.

Evictions

For housing or eviction-related advice or assistance you can contact the Legal Support Hotline on 066 076 8845, or the Socio-Economic Rights Institute of South Africa (WhatsApp, call or ‘please-call-me’ to 073 226 4648 / 071 301 9676 / 083 720 6600 or email sanele@seri-sa.org) or Ndifuna Ukwazi (081 832 9363; disha@nu.org.za).

Legal Advice

For general legal advice, call the Legal Support Hotline on 066 076 8845. You can also click here for CoRMSA’s list of useful contacts. 

For advice relating to the lives of migrants, asylum-seekers, refugees (whether documented or undocumented), please contact Scalabrini’s Advocacy Team. To do this, you can send a WhatsApp to 078 260 3536. Or you can call, SMS or send a please-call-me to 083 433 5062. This will be logged and one of the Advocacy team members will get back to you.

Marriages

The Department of Home Affairs has confirmed  that services at civic offices include the solemnisation and registration of marriages. Following a recent court case, asylum seekers in South Africa who wish to have their marriage solemnised by the Department of Home Affairs (or to register their customary marriage at DHA) should be able to do so. This includes marriages between people where asylum documents have expired since the state of national disaster was declared (15 March 2020).

If you are having difficulties with this, you can contact Scalabrini’s Advocacy Team. Please send an SMS or “please-call” to 0782603536 and, if possible, include your full name. Your message will be logged and one of our Advocacy Team members will get in touch with you.

Preventing the spread of Covid-19

Click here to download and share our posters about covid-19. These posters are translated into 12 different languages, including Lingala, Somali, Swahili, Kikongo, French, Zulu and Xhosa.

Reporting abuse by police and military during lock-down

Under lock-down, the police and military have a role to prevent the spread of covid-19. To this end, they can only use force in very specific circumstances. Lawyers for Human Rights have created an infographic to explain this, and how to report on it – click here to view it. The Military Ombudsman can be called on 076 609 2255.

Rent – paying rent during lockdown

Under lock-down, paying rent might not be easy. If you are having trouble paying your rent, first engage with your landlord. Ndifuna Ukwazi has created an infographic on What happens if you cannot pay rent during lockdown. They have also created a podcast which you can listen to for more details.

SASSA (grants)

SASSA Grants are accessible by South African citizens, those with refugee status, or those with permanent residency in South Africa. In order to apply, a 13-digit ID number is required. For those on refugee status, this 13-digit ID number is generated only when a Refugee ID is applied to (which is different to refugee status, and can only be applied to if refugee status is granted). However, SASSA has made provision, under lockdown, for those refugees who, although they have refugee status, do not have a 13-digit ID as they have not applied for a refugee ID. This is a temporary measure only. SASSA will generate a unique 13-digit ID for these cases. The applicant must phone the SASSA helpline, and get instructions on the various steps they have to take; one of which is deposing to an affidavit. If your refugee status has expired, we advise you to try to claim your SASSA grant. You can also contact: 0800 601011 for SASSA questions. If you are then denied access, please call Refugee Rights Unit on 021 650 5581 for legal assistance.

Please note, regarding the Social Relief of Distress Grant: Following a court case undertaken by Scalabrini and Norton Rose Fullbright, some of South Africa’s asylum-seekers and special-permit holders are now able to apply for the Covid-19 Social Relief of Distress grant (‘SRD grant’).  Applicants for the grant, just like any other persons, will still subject to SASSA’s eligibility criteria – they cannot be receiving an income, any other form of grant, or any economic relief from UIF. People who hold asylum-seeker and special permit status in South Africa, whose documents were valid at the start of the National State of Disaster will be able to apply for the SRD grant. Applicants will need to provide their documents, as issued by the South African government. This SRD grant is a ‘special’ grant rolled out for a limited period only, until March 2022, and only eligible candidates will receive R350 each month during that limited period.

To find out if you are eligible for the SRD Grant read our infographic here 

Read our SRD Grant infographic, for people on asylum documentation or special permits,  here.

Testing and Strategy for Covid-19

For more information on the South African government’s response to Covid-19, keep updated at www.sacoronavirus.co.za. If you have a Covid-19 health-related query, you can call the National Hotline on 0800 029 999 or the toll-free hotline on 080 928 4102. The Western Cape has its own Western Cape Government’s Covid-19 Response page, too.

Unemployment Insurance Fund (UIF)

Because of the covid-19 lockdown, the Department of Labour set up the  ‘COVID-19 Temporary Employee / Employer Scheme’. This helps employers pay a part of their employee’s salary if they closed completely or partially during the lockdown. Normally, your employer should start this process, however if your employer is not using this Scheme you may also be able to apply on your own behalf. For any queries related to UIF TERS Benefits Application, call the UIF Call Centre (0800 030 007).

We have also made an infographic and explainer on the COVID-19 Temporary Employee / Employer Scheme, aimed at those on refugee, asylum or migrant status in South Africa. Please note that *closing dates* have now been applied to UIF TERS. Follow the link above for more information.

Alternatively, if you are a UIF contributor and are unemployed because of termination, dismissal, or insolvency, or if you have reduced income owing to reduced working hours, you may be eligible to apply for Normal UIF Benefits – apply online with the UIF Online Filing System. For more info, follow this UIF’s Easy Guide for Electronic Claims, call UIF for assistance (0800 030 007), or read our Explainer on UIF.

Welfare assistance

We encourage those needing welfare assistance to research all available options, including your local Community Action Network, churches and masjids.

If you have questions about assistance and support, you can contact the Scalabrini Welfare team.

However, please note, our Welfare Team has a very limited fund to help refugees and migrants at this time. Please understand that the Welfare Team are simply not able to assist everyone. We are receiving a very high number of calls and requests. Your application to Welfare Assistance will be assessed, but we cannot assist everyone.

To apply, please call or send a ‘please-call’ SMS to 071 711 1486 (Monday-Friday 9am-4pm). You can also email jane@scalabrini.org.za.

For governmental updates, check www.sacoronavirus.co.za. The national Covid-19 hotline is contactable on: 0800 029 999.

Repatriation and reconnection: facilitating a journey home with the Welfare Team

Pauline* (name changed to protect her identity) found herself in hospital in Cape Town – alone and struggling with her mental health. Once discharged from hospital, it was likely that Pauline would end up homeless. Working in collaboration with Stikland Psychiatric Hospital and their social worker, the Welfare Team helped facilitate Pauline’s repatriation, back home to the love and support of her family.  

Pauline lived in Lubumbashi, before she decided to follow her sister to South Africa. Not much is known about her life in Cape Town, except that it was not long before she started showing signs of schizophrenia – this had not happened before moving to South Africa.  

When Pauline started displaying these signs, she was first admitted to Karl Bremer hospital and then to Stikland – a psychiatric hospital in Cape Town. Unknowingly, Stikland was where she would spend the next year of her life.  

After four months of being hospitalised, Pauline was stable and ready to be discharged. The social worker reached out to Pauline’s sister, only to be told that they had moved to Durban and “wanted nothing to do with it.” 

Pauline was undocumented, could not speak English and had now lost her support system. Because she was undocumented, she was unable to access a disability grant – needed for her to be placed in an adequate shelter. “There were multi-layered challenges around the client that made her particularly vulnerable” said the Welfare Team. If Pauline was discharged from Stikland, she would have been homeless – on the streets of a city that was not her home.  

This was when the social worker contacted Scalabrini’s Welfare Team. The team would go on to work on this case for close to a year.  

The Welfare Team arranged, with the help of the social worker, for Pauline to stay in the hospital until adequate plans were made. The team felt that the best option for Pauline would be to go home. Repatriation was put on the table – paid for by the hospital – and the Welfare Team kicked things into full gear, determined to get Pauline home, to the safety and support of her family.  

“This was when we started tracing the family,” explains Etienne, Welfare Consultant. The language barrier had made it difficult for the social worker on Pauline’s case. Etienne, being from DRC himself, speaks French and Lingala, and was able to step in.  

Through speaking to Pauline’s family back home, it was discovered that her sister had not moved to Durban at all – she was still in Cape Town, living in the same house. “She was rejected by her sister.” 

Sadly, this is something that the Welfare Team has come across many times before – where the family members in South Africa reject the person in need of care.We have a lot of clients who are in the hospital. There are so many clients in the same situations with no proper exit strategies. Sometimes they will just dump them outside the offices here without saying anything, “ says Jane, Welfare Manager.  

Although Pauline’s sister did not want to help, her family in DRC were gravely concerned and wanted her home as soon as possible. To ensure Pauline’s safe arrival home, the Welfare Team took on the task of securing her travel documents, facilitating the process with the embassies and preparing her family for her arrival. This work took months. 

It was decided that another sister would come meet Pauline in South Africa and take her home, but unfortunately the costs were too high for the family and Pauline had to travel alone – fortunately she was still feeling stable. Etienne worked in a hospital in the DRC – his experience proved vital in this case, as he was able to contact hospitals in Pauline’s home city. He could confidently make sure that she would be able to get the correct medication she needs.  

On 23 November 2021, the team put Pauline on a plane where she bravely made her way back home. She was warmly welcomed by her family and is still of stable mental health – photos have been sent. The Welfare Team will continue to keep in touch with Pauline and her family to assist as best they can from South Africa. “Pauline’s case is a long-term case for us”. And a triumphant one too.  

 

***  

What Pauline went through in South Africa, is something that the Welfare Team has come across often. “It is very common that people develop mental health problems when they come to South Africa.”  

Many times, lack of preparedness, difficulties in adjusting to the new environment, the complexity of the local system, language difficulties, cultural disparities and adverse experiences would cause distress to migrants. Moreover, subsequently it has a negative impact on mental well-being of such population.” (Migration and Mental Health)  

This has been one of the reasons that Welfare, specifically Etienne, started the Men’s Development Group at Scalabrini. To help combat mental health problems by providing a safe space for men to express what they are going through, share in others experiences and to know that they are not alone. 

If you would like to find out more about the Men’s Development Group, you can send an email to etienne@scalabrini.org.za 

 

*** 

 

 

 

The Grace of the 12-month Grace period for Late Registration of Birth

The Scalabrini Centre and Partners Appreciate the Shift with Late Registration of Birth to 12 months and call for its continuation or expansion beyond 12 months 

As a result of the pandemic there was a shift in the policy from requiring birth registration within 30 days to birth registration within 12 months, before increasing requirements in the late registration of birth process. This is an important step in ensuring the Constitutional rights realisation for every child in South Africa. 

The Scalabrini Centre has engaged recently with in excess of one thousand clients including numerous South Africans and migrants all of which were/are struggling with the late registration of birth process and the additional administrative burden placed upon parents seeking to register their child’s birth once the 30-day period for registration came to an end.  

In some such cases despite concerted and repeated efforts registration was not feasible within 30 days and thereafter late birth registration was not possible in a period of 3 to 5 years after the child was born. Children struggled and struggle to access school in the absence of a birth certificate. The shift to 12 months for birth registration is a great thing for both South Africans and non- South Africans. Home Affairs should continue with the 12 months period or even expand it further and the Scalabrini Centre would like to appreciate the wisdom in extension the period as this increases the dignity and rights realisation in the pursuit of the best interests of the Child.  

We have found in practice that most parents whose children fell under the late birth registration process, which arises after 30 days, are the parents that did not have documentation at the time of the birth of the child. Both South Africans and Non- South Africans were and are experiencing the same issue. The extension to 12 months allows parents sufficient time to apply for the right document such as: South African ID documents, visas, asylum seeker visas and refugee status documents. One of the advantages of the 12 months birth registration period is it has and will continue to decrease the number of children in the late birth registration process, which takes years for children to get their birth certificates.  

30 Days birth registration causes a lot of late birth registration due to the lack of documentation. Birth registration after 30 days deprives children of the right to identity, the right to nationality, and puts them at risk of statelessness. According to section 28 of the Constitution of South Africa ‘every child has the right to a name and a nationality from birth’. In South Africa, these rights can only be brought to life through the possession of a birth certificate. Additionally, birth registration after 30 days and the failure to issue birth certificates makes it difficult for children to access to education, health care and social services. We encourage parents and care givers to register the birth of their children as early as possible but appreciate the challenges faced in the absence thereof. 

The Bill of Rights sets out a series of fundamental rights including the right to equality, to dignity, to administrative justice and the rights of the child and these can only be truly accessed with valid documentation (such as a birth certificate) that proves the person’s nationality, and therefore their legal and administrative existence in South Africa. Section 28 of the Constitution of South Africa requires that the ‘best interests of the child’ is the priority in all decisions and matters concerning the child.  

A 12-month birth registration period or longer is in the best interest of the child because within a year the child will have a birth certificate compared to waiting for years to have a birth certificate languishing in the late birth registration process. We appreciate the rights protection afforded to South African and to Migrant Children alike and hope that this will continue and be improved upon in years to come.  

Zimbabwe Exemption Permit Holders

The Scalabrini Centre is gathering Zimbabwe Exemption Permit information to assist in our advocacy work seeking documentation solutions.

If you are a ZEP holder, please answer some questions using the button below. Personal information shared is protected in terms of the Protection of Personal Information (POPI) Act 4 of 2013 and identifiable information Will NOT be shared with out your express and informed consent.