South Africa has legal frameworks that have been put in place to combat Gender-based violence (GBV), yet despite these developments, GBV remains a grave issue in the country. While the law may not be the only panacea for what is now termed “a second pandemic” in South Africa; it is the best place to start. It is said that the credibility of a government’s response to GBV can be measured by the strength of its laws and policies, as well as the manner in which they are implemented. This article aims to measure the credibility of the South African government’s response to GBV, through an analysis of the legislation put in place to combat GBV; the gaps in implementation of the legislation and new developments in the law on GBV.

What is Gender Based Violence?

Gender based violence is defined as harmful acts that are directed at an individual based on their gender. It includes any acts that are likely to result in physical, sexual or psychological harm or suffering, including threats of such acts, coercion or arbitrary deprivations of liberty, whether in public or private. The term can refer to women, girls, boys and men, however the primary victims of GBV in South Africa are women and girls. GBV is rooted in gender inequality, the abuse of power and harmful norms.

Summation of South African legislation on GBV

The legislative framework on GBV in South Africa is in line with South Africa’s international obligations from the international conventions which SA is a signatory to (i.e. UDHR, CEDAW). South Africa has two specific Acts that aim to protect vulnerable members of society against violence, namely the Domestic Violence Act no 116 of 1998 (DVA) and the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (SOA). The DVA aims to provide the highest form of protection against domestic violence, mainly to women and children as they are considered the most vulnerable members of society. The Act defines domestic violence extensively by recognising a wide range of harmful acts as domestic violence; these include, among others, physical abuse, sexual abuse, emotional abuse, intimidation and stalking. The DVA further acknowledges that domestic abuse can occur in domestic relationships as well as familial relationships. Section 4 of the DVA makes provision for protection orders, which may be issued by the courts; the purpose of the protection order is to prevent the perpetrator from entering the victim’s residential home, their shared home, or the victim’s workplace. Furthermore, the DVA highlights the duties of the police and outlines the penalties that the police may face for failing to execute these duties.

The SOA aims to give effective protection to all victims of sexual offences. The Act regulates the rules of evidence in prosecution and adjudication of sexual offences. The SOA criminalises sexual violation, the different forms of penetration on another person without consent and the display or exposure of child pornography. The Act further provides an age of consent for consensual sex (17 years). One of the most significant provisions of the SOA is its provision of extra-territorial jurisdictions to the courts, with regards to sexual offences. In terms of the SOA, a compulsory HIV test must be done on the alleged sex offender; the Act furthermore provides the victim with the right to receive Post Exposure Prophylaxis(PEP) treatment for HIV. The SOA makes provision for a national register for sex offenders, in which persons who have been convicted of sexual offences must be registered.

Accordingly, both pieces of legislation offer the highest form of protection against GBV and provide effective strategies on how organs of State should address GBV; however, there are gaps in the implementation of the legislation that create a space for GBV to thrive.

Gaps in the implementation of South African Legislation on GBV

Notwithstanding the progressive nature of both pieces of legislation, the scourge of GBV in South Africa persists as a result of poor implementation of legislation. One of the challenges experienced by victims of GBV in South Africa, is access to the criminal justice system. Despite the DVA and SOA providing clear and comprehensive procedures on how the South African Police Service (SAPS) should address GBV, there is still a lack of urgency by the SAPS, when it comes to addressing GBV. Victims of GBV are often sent back home to resolve the issue with the perpetrators, instead of being assisted as per the provisions in the DVA or SOA. A study conducted by Tshwaranang on the implementation of the DVA, found that a substantial amount of police officers’ knowledge on provisions of the DVA and their duties according the DVA, was limited. Vetton (2017) suggests that domestic violence is considered a social crime in the SAPS and the lack of clarity on what social crimes entail contributes to members of the SAPS viewing domestic violence as a less serious matter. The negative response by the SAPS to victims of GBV discourages victims from reporting their cases and further decreases the victims and the public’s confidence in the criminal justice system.

Another factor contributing to the failure of implementation of legislation aimed at curbing GBV, is the shortage of specialised personnel within the justice system to address sexual offences. Areas in which there are no specialised sexual offences courts experience difficulties in handling sexual offence cases, because overworked prosecutors who are also working in other areas of criminal law are likely to invest less time sexual offence cases. Victims of GBV experience difficulty accessing the courts, as well as navigating the court system. Victim’s applications for protection orders are often delayed due to insufficient resources and shortage of staff in courts. The Courts have further displayed leniency on perpetrators of GBV when granting bail and in sentencing, with perpetrators having to serve minimum sentences on serious offences such as GBV related offences; these are factors that further affect victims and potential victims’ confidence in the criminal justice system. It is worth noting that the household satisfaction on how courts generally deal with perpetrators of GBV related crimes declined from 63.9% in 2013/14 to 41.4 % in 2017/18. The aforementioned challenges must therefore be addressed with urgency in order to hold perpetrators accountable for their actions.

According to a report by the Department of Planning, Monitoring and Evaluation and the Department of Social Development, there is a lack of accountability on the costs of implementation of legislation on GBV which has resulted in inadequate funding to combat GBV in South Africa. This is a clear indication that the government has not fully prioritised the issue of GBV and this has led to, not only a continual surge in GBV cases, but a lack of accountability of GBV perpetrators as well.

New Developments in the law on GBV

In September 2020, three new bills were introduced to parliament. The three new Bills, namely the Domestic Violence Amendment Bill, the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill; and the Criminal and Related Matters Amendment Bill, were introduced as a response to the surge in GBV cases. The Domestic Violence Amendment Bill aims to amend the DVA to, among other things, provide for the procedure in which organs of State and other functionaries must deal with domestic violence related matters; and regulate the obtainment of protection orders. The second bill; the Criminal Law Amendment Act Amendment Bill aims to extend the ambit of incest as an offence; introduce sexual intimidation as a new offence; extend the scope of the National Register for Sex offenders to include particulars of all sex offenders; and regulates the reporting duty of persons suspect that a sexual offence has been committed against a child. Finally, the purpose of the Criminal and Related Matters Amendment Bill is to amend four Acts, namely the Magistrates’ Court Act to provide for the appointment of intermediaries for the purposes of presenting evidence in proceedings other than criminal proceedings; the Criminal Procedure Act to regulate the granting and cancellation of bail; the Criminal Law Amendment Act to regulate and tighten sentencing to be imposed on perpetrators of GBV offences; and amend the Superior Courts Act to provide for the appointment of intermediaries and presentation of evidence through intermediaries.

This article sought to measure the credibility of the South African government’s response to GBV through an analysis of legislation aimed to eradicate GBV and the implementation of such legislation. It is concerning that despite the progressiveness of legislation put in place to curb GBV, the scourge of GBV remains a grave issue; this indicates that Government’s response to GBV has been poor. The implementation of legislation and policies on GBV appears to have not been prioritised by government; hence the surge in GBV cases and lack of accountability by perpetrators – if there are no consequences, naturally there will be accountability or rehabilitation. The introduction of new Bills to curb GBV is commendable, but is of no use if the implementation of the legislation is unsatisfactory. It is therefore important for the government and the judiciary to ensure that the legislation is correctly implemented.

Author: Mmasetshaba Boipelo Taele BA Law (University of Pretoria) | LLB UP