In an effort to reassess current gender-based violence (GBV) legislation, the Department of Justice and Correctional Services has introduced three GBV-related Amendment Bills in Parliament. According to the National Shelter Movement of South Africa (NSMSA) and a variety of gender justice organisations, the Domestic Violence Amendment Bill, the Criminal Matters Amendment Bill, and the Sexual Offences and Related Matters Amendment Act all currently have a number of loopholes, many of which are being exploited by GBV perpetrators to avoid prosecution and imprisonment.
The NSMSA says that while it acknowledges the Department’s efforts to strengthen various provisions in the law, by expanding certain obligations to other sectors, it is important that the country’s laws reinforce and harmonise with one another. To better safeguard the rights of victims of GBV and domestic violence, existing legislation should consistently be referenced to avoid conflicting approaches, which could result in confusion about how the law should be applied.
Head of the Executive of NSM Zubeda Dangor says, “We suggest that not only should the language in these laws be simplified, but it should be consistent across all the relevant Acts, with adequate explanations and specific guidelines regarding any requirements. Official responsibilities should be clearly understood, especially since improving the law is such a rigorous and lengthy process.”
“There should especially be a synergy across those laws that relate to each other in some way. For example, laws relating to Children and Older Persons (and, also Firearms, Harassment, and Human Trafficking) should all be cross-referenced with the DV Amendment Act, to ensure that the relevant provisions dovetail with and reinforce each another. Furthermore, the DV Amendment Act and its provisions should take precedence over any other law that may conflict (other than the Constitution or any subsequent Amendments),” says Dangor.
Bernadine Bachar NSM’s Western Cape Representative and Director of the Saartjie Baartman Centre says, “It is similarly important that special care be taken to ensure that GBV-related responsibilities are only assigned to qualified persons. Secondary victimisation, which adds to the trauma for GBV victims, is already widespread. Therefore, since we want more women to come forward about the crimes committed against them, official obligations must be agreed upon, clearly understood and adhered to, and should prioritise the protection of the victim.”
Bachar says, “It is important to take into account the lived experience of domestic violence victims. It is for this reason that we strongly oppose that reporting of suspected domestic violence should be mandatory or that failure to report should lead to criminal charges. In DV cases, while victims need outside support, they also need to be able to act in their own interests. We should not be robbing survivors of their agency and mimicking the abuse. Reporting of a domestic violence matter without the agreement of the survivor could result in further harm to the survivor.”
Advocacy, Policy & Research Officer at MOSAIC Training, Service & Healing Centre Kerryn Rehse adds, “There needs to be caution against legislation that seeks to protect and uphold the rights of victims of domestic violence that, in fact, creates an imbalance in the law. An imbalance that sees victims of domestic violence being criminalised ahead of the perpetrators of such violence.”
A number of sections regarding the responsibilities of the South African Police Services (SAPS) must be strengthened, as the Amendment still relies too much on the subjective assessments of SAPS officials. According to NSMSA’s research, in partnership with the Heinrich Boell Foundation, SAPS’ track record in dealing with domestic violence matters is already severely tainted, as a result of the tendency to NOT act even if there is evidence.
Executive Member of NSM and Director of St Anne’s Home for Women and Children Joy Lange says, “Since not all police will view a situation in the same way, the word “reasonable”, in terms of suspicion of guilt or grounds to act, is very problematic. The role and requirements of SAPS officials must be more explicitly defined, with specific guidelines in the National Instructions for dealing with domestic violence matters.”
With regard to the Criminal Matters Amendment Bill, the NSMSA welcomes the government’s move to make it harder to get bail or parole. However, the NGO says that government should rather prioritise bringing more cases to prosecution and securing more convictions. This will be more of a deterrent of GBV crimes than harsher minimum sentences. A key problem in South Africa is that majority of GBV cases fall out of the system and do not even make it to prosecution, many as a result of a lack of evidence. This is therefore an important and urgent issue to address.
Mpumalanga Provincial Shelter Representative Fisani Mahlangu says, “In recent research from Gauteng, for example, less than ten percent (10%) of cases made, resulted in convictions. Therefore, in domestic violence cases, it is crucial that police officials not only keep accurate and detailed records of a domestic event but should also be required to take previous records involving offenders into account, since it may be evidence of a pattern of violence. The threat of violence should be seen as a serious risk for victims. Consider this, in 2009, the Medical Research Council (MRC) found that one (1) in every two (2) women who had been murdered, had been killed by their intimate partner.”