COMMENT
Gender-based violence (GBV) is rife in South Africa and yet the attitude persists that violence between intimate partners or spouses is a private matter that should be handled within the family sphere. This perception is linked to the dismissiveness with which society and law enforcement agencies treat cases of GBV. Police officers are often reluctant to intervene in “family matters”, and the judiciary itself is riddled with stereotypes and biases regarding victims of GBV, thereby exposing them to re-traumatisation.
This is, of course, assuming the victim decides to press charges, as such crimes are notoriously underreported at best, or not reported at all. As a result, survivors of GBV often have to jump over several hurdles in their pursuit for justice, while perpetrators walk away scot-free or with a slap on the wrist.
Despite having some of the most progressive GBV laws on the continent, just last year President Cyril Ramaphosa compared the domestic violence scourge in South Africa to that of a country at war.
To place this in perspective, statistics in conflict zones such as South Sudan estimate that 33% of women and girls have been victims of GBV. Despite underreporting, Statistics SA says femicide is five times higher than the global average in South Africa.
Since the outbreak of the Covid-19 pandemic, incidents of GBV have increased dramatically, in South Africa as well as globally. During the first week of lockdown alone, the South African Police Services received 2 300 calls pertaining to GBV. Although an upsurge in domestic violence cases was predictable, as victims would be confined with their abusers, no significant measures were taken by the state to protect women during pandemic.
In fact, it has taken the government almost a year to review legislation pertaining to GBV as promised in its response to nationwide protests against femicide in 2019.
National sex offender register
During the 2019 protests against GBV, one of the key demands made by women’s organisations was that the national register for sex offenders should be made public. This call seemingly did not fall on deaf ears, as three amendment Bills were recently submitted to Parliament for consideration.
The Criminal and Related Matters Amendment Bill makes provision for the names of persons on the national register for sex offenders to be made publicly available. While the inclusion of the names of all those convicted of sexual offences to the register is a progressive development, the consequences may not entirely be positive.
The public will likely gain a false sense of security as we know only a small portion of sex offenders are likely to be convicted and added to the register. Secondly, the register lists the offender’s personal details such as names, home address and the type of sexual offence for which the offender was convicted. The public disclosure of this information raises legitimate privacy concerns and that citizens may take the law into their own hands even after justice has run its course.
Ultimately, the objective of the proposed amendment Bills is not only to protect women but to serve as a deterrent, to prevent recurrences of GBV. Many incidents of violence against women are perpetrated by repeat offenders, or accused while out on bail. Therefore, the Bill aims to tighten, among others, granting bail to perpetrators of GBV, and expands the offences for which minimum sentences must be imposed.
At this stage it is unclear whether imposing longer sentences will deter the commission of GBV, however, this development will definitely restore the public’s confidence in the justice system, particularly in a situation where most victims have been left disgruntled by the inconsistencies between the severity of violence and the sentences imposed.
Stricter laws pertaining to bail applications are likely to prevent perpetrators of GBV from exploiting legal loopholes to avoid imprisonment, as well as enforcing new obligations on police and the judiciary. For instance, the proposed amendments require prosecutors to place their reasons for not opposing bail on record in cases of GBV. Additionally, courts are placed under the obligation to order that an accused person be detained until criminal proceedings are concluded, in the absence of exceptional circumstances on why they should be released on bail.
Apart from the procedural amendments proposed in the Criminal and Related Matters Amendment Bill, some provisions of the Domestic Violence Act are being made more stringent. For instance, the Domestic Violence Amendment Bill extends the definition of domestic violence to include those in engagements, customary relationships and romantic, intimate or sexual relationships regardless of their duration. The extension of this definition is significant because it makes a substantive difference in the lives of those who experience the worst effects of domestic violence, such as women from rural areas, who are often in customary relationships. These women were previously excluded under the Act, and therefore found it difficult to obtain remedies such as protection orders.
Extending citizens’ duty towards protected groups
Perhaps the most positive amendment to the Act is the provision that someone can be fined and even imprisoned if he or she has knowledge, reasonable belief or suspicion that an act of domestic violence has been committed against a child, a person with a disability or an older person and fails to report it to a social worker or police officer. While this provision will assist in implementing the Act, particularly in cases where the victims may not be able to seek assistance, it is lamentable that women aren’t included in the three protected groups (children, disabled persons, and the elderly). Given the scale of the GBV scourge in the country and the statistical evidence pointing towards increased domestic violence against women, social intervention is a necessary tool for combatting violence in the home. Extending the duty of citizens to report domestic violence perpetrated against women will ensure that the experiences of women are placed in the public domain, thereby breaking the stereotypes that perpetuate their silencing.
One of the reasons why most human rights activists argue so forcefully in favour of the conception of GBV as a public matter is because victims who seek assistance from the police are often ignored or blamed for their suffering. In some ways, the Bill aims to rectify this as it provides that failure by a member of the SAPS to comply with their obligations under the Act will be regarded as misconduct and must be reported to the civilian secretariat for police service.
Evidently, the amendment Bills have incorporated some of the suggestions made by activists and civil society. The Bills have just been introduced into Parliament and the legislative process has only just begun. Should the Bills receive the Parliament’s approval and the assent of the President, they will be passed into law. Until then, the effectiveness of these provisions remains to be seen. But what is sure is that without the necessary implementation, South Africa will continue to see an upsurge in GBV.
Ropafadzo Maphosa is a PhD candidate in international law at the University of Johannesburg and a researcher for the South African Institute for Advanced Constitutional, Public, Human Rights and International Law at the university
