South Africa has one of the highest gender-based violence and femicide (GBVF) rates in the world. While the country has many laws that should, in theory, protect women from abuse and offer them protection and justice when they are victimised, the reality on the ground is much different.

REBECCA SIBANDA – Human Rights Lawyer explains

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Introduction of the new laws

The Criminal and Related Matters Amendment Act

The Criminal Law (Sexual Offences and Related Matters) Amendment Act

The Domestic Violence Amendment Act

South Africa has one of the highest gender-based violence and femicide (GBVF) rates in the world. While the country has many laws that should, in theory, protect women from abuse and offer them protection and justice when they are victimised, the reality on the ground is much different.

To strengthen the country’s efforts in fighting GBVF, on the 28^th of January 2022, South African President, Cyril Ramaphosa signed three GBVF bills into law. These laws are the Criminal and Related Matters Amendment Bill, the Criminal Law (Sexual Offences and Related Matters) Amendment Bill and the Domestic Violence Amendment Bill. As their names suggest, these Bills are updated versions of the originals.

The passing of these laws is a positive sign for South African women and children – the groups most vulnerable to abuse and femicide. These amendments are more victim centred and were created to provide better and more effective protection for victims of GBVF.  They were first introduced in Parliament in 2020 in response to public demand that the government and police start taking GBVF cases more seriously. This is especially after the horrible rape and murder of University of Cape Town student, Uyinene Mrwetyana in August 2019, by a South African Post Office employee.

So, what exactly do these new laws change?

The Criminal and Related Matters Amendment Act

• This law comes in response to public outcry against accused offenders being granted bail too easily, and perpetrators only serving minimum sentences for serious crimes. Basically, the law makes it more difficult for abusers to escape punishment.
• Now, people accused of GBVF will only be granted bail under exceptional circumstances. If these requirements are met, the court must consider a number of factors before granting bail, including whether or not the victim would feel safe with the decision. Also, the victim will be heard by the court before bail is decided – something that did not happen before.
• This law aims to address GBVF and offences committed against vulnerable people and provides for additional procedures to reduce secondary victimisation of vulnerable individuals in court proceedings.
• For example, someone can give evidence on behalf of a victim or through audio-visual links in some cases.

The Criminal Law (Sexual Offences and Related Matters) Amendment Act – improve the country’s prevention of sex crimes

• Among other key changes, this Act introduces a new offence of sexual intimidation. This means that if you are threatened by someone’s behaviour, verbally or otherwise, you can report it and pursue legal action.
• It also expands the list of people who must be protected to include more vulnerable people, like people with physical, mental or intellectual disabilities and those over 60 years of age who, for example, receive community-based care and support services.
• The Act addresses paedophiles by increasing the reporting duty of those who suspect that a child is the victim of a sexual offence.
• Finally, it extends the scope of the National Register for Sex Offenders to include the details (name, address) of all sex offenders and not just those who hurt children and persons with mental disabilities.
• Before a sex offender’s details can be removed from the Register, they must remain on it for 20 years.

The Domestic Violence Amendment Act

• This law expands the definition of domestic violence to include victims of assault while engaged or dating. People in customary relationships, and those in actual or perceived romantic, intimate, or sexual relationships regardless of their length are also protected by this law. This means that if you are hurt by someone who you’ve been casually dating, or have been married to for years, you would be able to make a case against them under the Domestic Violence Act.
• This extended definition would also include older citizens who have been abused by family members.
• It also includes new definitions, such as ‘controlling behaviour’ and ‘coercive behaviour’, and expands existing definitions, such as “domestic violence”, to include spiritual abuse, elder abuse, and/or exposing/subjecting children to certain of listed behaviours.
• A critical change for victims is that women can now apply for protection orders 24-hours a day. Also, victims don’t have to be physically present in court when a magistrate grants an interim protection order. The Act also introduces online applications for protection orders against acts of domestic violence. The order will then be sent to the accused via email.
• The protection order would also be added to a central digital depository that houses other orders and cases made against the same person. Although the online protection order process would be a game changer, it’s important to note that it may not serve everyone fairly, as it relies heavily on whether or not you have the resources to apply for an order online – e.g., access to the internet.
• In addition, it imposes obligations on functionaries in the Departments of Health and Social Development to provide certain services to victims of domestic violence.

The passing of these new laws should make it more difficult for perpetrators to evade justice, and for victims to have access to true justice. It remains to be seen whether those charged with enforcing these laws will execute their responsibilities as they should.