GBV acts only words, no action

Joyce Ntombikayise Madonsela

Joyce Ntombikayise Madonsela

Published Aug 26, 2022



As South Africa celebrates Women’s Month; gender-based violence is still a persistent problem in the country.

We started the month on a sad note in KwaZulu-Natal; two Grade 12 pupils were recently hacked to death in their rented house in Ngwangwane Village. A man in his twenties allegedly broke into their house, attacked the girls with an axe and dismembered their bodies. It is alleged that this man tried to evade arrest by jumping into a river; he was later found and arrested.

In Gauteng, the police have arrested over 130 men, mostly illegal miners, some undocumented, after eight women were gang raped and robbed of their belongings. The women were shooting a music video at an abandoned mine dump near Krugersdorp.

South African women are angry and outraged by this; we look to the government to introduce new radical measures to address those violations and eradicate GBV from our society.

On January 28, the president signed into law new acts aimed at strengthening efforts to end GBV, with a victim-centred focus to combat this dehumanising pandemic. The word “strengthening” suggests that the acts were weak, to begin with. We wonder, however, when these new acts will be implemented;and whether they will bring about the radical change needed.

The Criminal and Related Matters Amendment Act amends four pieces of legislation: The Magistrates Act, 1944; The Criminal Procedure Act, 1977; The Criminal Law Amendment Act, 1997; and The Superior Courts Act, 2013.

The new laws expand the circumstances in which a complainant can give evidence through an intermediary whose role is to protect the witness against hostile cross-examinations and assist the witness in understanding the questions posed. The witness will, therefore, talk to the intermediary only during the court proceedings.

The acts also provide for evidence to be given through audiovisual links in proceedings other than criminal proceedings.

This legislation further enhances the regulation of the granting and cancellation of bail and minimum sentencing provisions in the context of GBV.

The Criminal Law (Sexual Offences and Related Matters) Amendment Act extends the ambit of the offence of incest.

It also introduces a new offence of sexual intimidation - when a person unlawfully and intentionally utters or conveys a threat to a complainant that inspires a reasonable belief of imminent harm in another person and that person shall be raped; compelled to rape someone else; sexually violated; compelled to sexually violate someone else; compelled to sexually violate himself or herself; compelled to witness a sexual offence,

the sexual act, or an act of masturbation; exposed to the genital organs, anus or female breasts of another person; or exposed to child pornography.

The act also regulates the inclusion of particulars of persons in the National Register for Sexual Offenders. The register now includes the particulars of all sex offenders and not just sex offenders against children and persons who are mentally disabled.

The purpose of the register is to prevent previously convicted sex offenders from committing similar offences or from purposefully entering locations where children are present.

The Domestic Violence Amendment Act extends the definition of domestic violence to include elder abuse, controlling behaviour, spiritual abuse and exposure of a child to domestic violence.

This makes it possible to recognise various types of domestic violence and opens up remedies to more individuals who may become victims of these types of domestic violence, which is a significant addition to understanding what constitutes domestic violence.

It further stipulates how certain functionaries, persons and government departments must deal with acts of domestic violence and related matters.

The introduction of electronic applications for protection orders is one of the major amendments to the act. Now, applications may be submitted electronically to the relevant court for review without the applicant leaving the house, which is occasionally not an option.

Applications may be prepared and filed outside of regular court hours and may be submitted any time of day. Without the applicant appearing in court, the magistrate may issue an interim protection order if they believe there are reasonable grounds to do so.

This innovation is meant to bring greater access to victims to obtain protection orders, in a safer and more accessible manner.

The new legislation also contains provisions for safety monitoring notices, which is a court order directing the relevant SAPS station commander to monitor the safety of any person still required to live or share a joint residence with the respondent or their abuser.

The notice compels the SAPS to, at regular intervals, check in with the applicant through electronic channels and visit the joint residence to assess the applicant’s safety.

The legislation empowers the police, but does not address the fact that most people have lost faith in the police, because of how they have previously dealt with such cases.

While it is very simple to speak on policies to combat GBV, implementation lacks. It has been seven months since these acts were signed into law.

In a series of webinars held online from July, the Department of Justice stated that it is yet to train court clerks to receive the online applications for protection orders from complainants.

The government is moving as slow as a tortoise; not recognising the urgency of GBV.

How is it that an influential woman like DJ Sithelo Shozi thinks she needs a petition signed by thousands of people to have a protection order granted against her alleged abusive ex-lover when according to the new legislation, she could have just lodged an application online?

This could be seen as an indication that the general public is still unaware of the new amendments. It should start here, by making the public aware.

A total of 902 women were murdered from October to December 2021, according to the crime statistics, with domestic violence being the cause of 232 of the deaths. In the same period 11 315 cases were reported, which translates to 123 cases on average every day.

The statistics indicated that one in five women had experienced physical violence by an intimate partner. These are horrifying figures.

The statistics also revealed that the prevalence of physical violence was greater among less-educated women than those with secondary or higher education.

With the introduction of these online applications for protection orders; complainants must fill in an online form, called Form 2.

Form 2 is in English, so it is only helpful to those who are literate and those with stable internet connections. This particular addition to the act falls short in accommodating those who are illiterate, those who might experience possible language barriers, those in rural areas with no access to the internet or those not technologically savvy.

One major concern, seemingly not considered, is the frequent issue of load shedding in the country.

These shortcomings undermine the efforts to end GBV, they make these amendments look like the legislature is just refreshing old ideas, like the apps that were introduced to combat GBV, such as the Bright Sky app by Vodacom, which was met by the same problems, victims not having access to data or smartphones to use the app.

Real corrective and transformative measures should begin with addressing the socio-economic inequalities that exist. In South Africa, women, particularly African women, are most adversely affected by unemployment, leaving them vulnerable to abuse and having limited financial security. Financial dependency contributes to domestic violence and frequently drives women back to their abusive partners.

One way to reduce the statistics is by ensuring that the prosecution process is handled effectively.

On August 4, days before National Women’s Day, a North West police officer was rearrested for allegedly assaulting his girlfriend while out on bail for rape and attempted murder.

The officer was arrested and released in January and, according to a police statement, the he allegedly knocked down a woman with his car, kidnapped her and raped her at Welgevaal village near Mogwase.

The policeman is due to appear in court for this case next month.

This is one instance where the NPA as a functionary could have played its role, implemented the new legislation and refused bail for the police officer. When it comes to gender-based violence, there is a significant shortage of successful convictions.

There is also a significant issue in ensuring that the sentencing represents the appropriate punishment for the offence committed.

In many cases, repeat offenders are granted bail and we then see that victims are killed or repeatedly assaulted.

These new amendments should be able to strengthen GBV responses to some extent, in that they widen the scope and net of who is now eligible to apply; it’s no longer just a particular group of people, but includes and accommodates those with disabilities and the elderly.

The lack of implementation, however, is a major obstacle that undercuts any GBV prevention efforts.

For these amendments to be properly implemented, relevant functionaries, persons and government departments must act with urgency to provide more accessible protection measures, information and awareness, to place and train responsive police officers to receive, investigate and monitor GBV reports, to effectively regulate the prosecution process to ensure more successful convictions and proper sentencing; to offer better support for victims to avoid re-victimisation and to address socio-economic inequalities by making economic empowerment measures available to women.

Madonsela is a final year LLB student at the University of KwaZulu-Natal.

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