Government tightens law to curb GBV

Monday, September 7, 2020

The South African government and its partners will make good on its promise to protect the country’s women and children against gender-based violence, President Cyril Ramaphosa has vowed.

To demonstrate this commitment, government recently set the wheels in motion to tighten perceived legislative loopholes.

Apart from the R1.6 billion Emergency Response Action Plan to combat GBV and femicide - announced by the President last week in Parliament - government last week tabled three key bills relating to GBV.

The swift action comes after public calls to action following a series of brutal murders and attacks on women and children over the past year.

Writing in his newsletter on Monday, the President said: “I committed to marshal substantial resources of the State to tackle gender-based violence and femicide. I gave an undertaking that we would review our laws around gender-based violence.

"One of the key demands made by many women’s organisations was that the laws of our country should be tightened on granting bail to suspects and enforcement of long sentences for offenders.

"I concluded that the struggle to end GBV needed a multipronged strategy that should be led by the President and enlisted government to act. Cabinet agreed to allocate resources and commit to a plan of action."

Over the six months of its implementation, public spending in various government departments was reprioritised to support interventions for care and support for survivors, for awareness and prevention campaigns, to improve laws and policies, to promote the economic empowerment of women, and to strengthen the criminal justice system.

Through the introduction of these bills, President Ramaphosa said, government was honouring the promise made to the protestors last year and to all the women of South Africa.

“The three amendment bills are designed to fill the gaps that allow some perpetrators of these crimes to evade justice, and to give full effect to the rights of our country’s women and children.

"The sad reality is that many survivors of gender-based violence have lost faith in the criminal justice system. Difficulties in obtaining protection orders, lax bail conditions for suspects, police not taking domestic violence complaints seriously and inappropriate sentences have contributed to an environment of cynicism and mistrust.”

It is hoped that once finalised, the bills will help to restore the confidence of women in the law.

The first bill seeks to amend the Criminal Law (Sexual Offences and Related Matters) Amendment Act. This creates a new offence of sexual intimidation, extends the ambit of the offence of incest, and extends the reporting duty of persons who suspect a sexual offence has been committed against a child.

Said the President: “It expands the scope of the National Register for Sex Offenders to include the particulars of all sex offenders.

"Until now, it has only applied to sex offenders convicted of sex crimes perpetrated against children or persons with mental disabilities. The time an offender’s particulars must remain on the register has been increased, and those listed on the register will have to disclose this when they submit applications to work with persons who are vulnerable.

"The Bill also makes provision for the names of persons on the National Register for Sex Offenders to be publicly available”.

The Criminal and Related Matters Amendment Bill tightens the granting of bail to perpetrators of gender-based violence and femicide, and expands the offences for which minimum sentences must be imposed.

President Ramaphosa said the amendments impose new obligations on law enforcement officials and on courts, addressing the perception that many perpetrators exploit legal loopholes to avoid imprisonment, and that sentencing is often not proportionate to the crimes.

“When a prosecutor does not oppose bail in cases of gender-based violence, they have to place their reasons on record. Unless a person accused of gender-based violence can provide exceptional circumstances why they should be released on bail, the court must order their detention until the criminal proceedings are concluded,” said the President.

In reaching a decision on a bail application, the courts are compelled to take a number of considerations into account. They include pre-trial reports on the desirability of releasing an accused on bail, threats of violence made against a survivor, and the view of the survivor regarding his or her safety.

On parole, a complainant or a relative of a deceased victim must be able to make representation to the parole board.

Given the unacceptably high levels of intimate partner violence in South Africa, government has tightened the provisions of the Domestic Violence Act.

The bill also extends the definition of domestic violence to include the protection of older persons against abuse by family members.

Complainants will be able to apply for a protection order online. To prevent a scenario where perpetrators can hide past histories of domestic violence, an integrated repository of protection orders will be established.

The proposed amendments also oblige the Departments of Social Development, Basic Education, Higher Education and Health to provide certain services to survivors where needed, and to refer them for sheltering and medical care.

The circumstances under which a prosecutor can refuse to institute a prosecution when offences have been committed under the amended act have been limited.

In perhaps the most groundbreaking proposed amendment to the act, if someone has knowledge, reasonable belief or suspicion that an act of domestic violence has been committed against a child, a person with disability or an older person, and fails to report it to a social worker or police officer, they can be fined and even imprisoned.

Similarly, 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. 

The President said while the law is the one sure protector of all of society, the most vulnerable must be prioritised.

“When diligently and fairly applied, it is the most powerful guarantor of justice,” he said. –