Image: Sydney Sims (Unsplash)
The wave of gender-based violence (GBV) protests in September of 2019 pleaded for the South African government to take active legislative steps in curbing the scourge of GBV and femicide. The South African justice system arguably protects sexual offence perpetrators instead of rape victims and vulnerable individuals. According to the Emergency Plan on Gender-Based Violence and Femicide, between October 2019 and April 2020, the South African Police Service (SAPS) dealt with 24 288 reported cases of GBV and only 94 arrests were made. This means the rate of arrest was less than 0.004% in seven months.
In early September this year, President Ramaphosa announced the introduction of amendments to three key GBV-related bills to parliament as part of the pledges to address GBV and femicide through a letter to the public.
The first amendment addresses the Criminal Law (Sexual Offences and Related Matters) Amendment Act. The amendment extends the scope of sexual offences punishable by law to include sexual intimidation and incest. It also expands the National Register for Sex Offenders to include all sex offenders, while previously it only listed those who committed sex offences against children and the mentally disabled. The biggest change is making the register available to the public. Ramaphosa’s move to make the register available to the public sits well with many anti-GBV activists. Others argue that making the registry publicly available may result in an increase in communities taking justice into their own hands by carrying out killings of alleged rapists. Initially, the registry was available to employers in both the private and public sectors (including schools and hospitals) to deem whether prospective employees were fit to work with children and the mentally disabled. Action Society, a Non-Governmental Organisation (NGO) that petitioned to make the register public, recalled an incident in July 2020 where a two-year old child was raped while placed under isolation for COVID-19 at a local hospital. The places and people that are trusted to provide care and protection, are the very same places and people that harbor perpetrators unknown to the public, leading to a serious decline in public trust in public institutions and the justice system.
The second amendment addresses the Criminal and Related Matters Act. The aim of the amendment is to restrict the granting of bail to perpetrators of GBV and femicide, increase the minimum sentence, and impose stricter obligations on law enforcement officials. The fundamental shortcoming of this amendment is that it only restricts bail applications, it does not ban it entirely. According to the 2012 Rape Adjudication and Prosecution Study in South Africa (RAPSSA) report, 50.6% of arrested perpetrators were eligible to apply for bail and 40% had successful applications. Ultimately, the granting of bail to sex offenders sends the message that the South African legal system does not consider sex offenders a danger to society while awaiting trial. According to a TimesLIVE article in May this year, a 17-year-old boy was granted bail for a rape offence in Vaalbank. While awaiting trial, he committed another rape offence in KwaMhlanga, Mpumalanga. The Criminal Law Amendment Act of 1997 states that first-time rape offenders should receive a ten-year sentence and second-time offenders should receive a fifteen-year sentence. For each offence, the rapist was given five years, which only amounts to a first-time sentence of ten years. Until bail is prohibited to sex offenders, victims of such offences will continue to be compromised of their safety and mental well-being, while their perpetrators enjoy freedom of movement and shorter sentences.
The third amendment addresses the Domestic Violence Act. This amendment broadens the scope of the definition of domestic violence to include a variety of relationships of any length, in addition to marriage. It expands to include the protection of older persons from abuse by family members and it provisioned for protection order applications to be facilitated online. The amendment also includes fining and imprisonment for those who have knowledge of domestic violence taking place and fail to report it. The most controversial feature of the amendment, is that SAPS is liable to misconduct charges and recommendation to the Civilian Secretariat for Police Service if they fail to comply with their obligations. A survey by grassroots community organisation Get Involved, found that only 8.3% of participants would first go to the police if they were a victim of GBV, and that 24.7% would not report if they were a victim of GBV. Claudia Ndaba, African National Congress (ANC) Member of Parliament, noted that police officers were sometimes unwilling to provide assistance and humiliated women who reported GBV during the nationwide lockdown. Considering the lack of adequate gender sensitivity training, and lack of attentiveness to GBV reports by the South African police, it is difficult to imagine that police officers will be reprimanded for failing to fulfill their duties. President Ramaphosa is yet to provide details concerning how accountability will be ensured and monitored. At this point, police misconduct charges sound like an empty promise.
Will these amendment bills help put an end to the social ills of GBV? Many find the amendments to be ‘too little too late’ and note that these laws should have been implemented years ago. The success of the amendments really depend on whether they will be strictly implemented, convey an attitude of non-tolerance to the public, and deter potential perpetrators. While it is imperative for the punitive system to be tightened and for public trust to be rebuilt, it is simply impossible for the police and the courts to monitor the behavior of every single citizen at all times. It is not solely the government’s responsibility to reduce GBV and femicide. Communities and grassroots initiatives have a large stake in the norm socialisation of members of society towards the issues of violence against women, rape, sexual assault, general respect towards women and the LGBTQIA+ community.
Nirvana Govender is a postgraduate student at the University of Pretoria completing her Honors degree in International Relations. She is a tutor in the Political Sciences Department. She is also the co-creator of the grassroots community organisation, Get Involved. Please follow her page (@getinvolved_gbv) on Instagram to help support her organisation.