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) [1]. 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 [2]. 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 [3]. 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 [4]. 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” [5]. 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/