The National Council of Provinces (NCOP) passed three key gender-based violence (GBV) bills during its virtual sitting on Wednesday (1 September).
The Criminal and Related Matters Amendment Bill, the Domestic Violence Amendment Bill and the Criminal Law (Sexual Offences and Related Matters) Amendment Bill aim to change the landscape in terms of how government departments, law enforcement, and the courts deal with cases of violent crime in South Africa – especially violence against women and the vulnerable.
However, the real test is in carrying out the enforcement, and enforcing them properly requires a monumental shift in policing, says Deepa Vallabh, partner at law firm CMS.
1. Harsher on perpetrators
Perhaps the most notable change in the Criminal and Related Matters Amendment Bill is the tightening of the granting of bail to perpetrators of GBV and femicide, and the expansion of offences for which minimum sentences must be imposed, Vallabh said
“The bill aims to address the fact that many perpetrators of such serious crimes are exploiting legal loopholes to avoid imprisonment, and are frustrated that sentencing is often not proportionate to the crimes.”
While the provisions might satisfy those already in the justice system, it is important to note that there’s little evidence that minimum sentences do anything to prevent crime, Vallabh said.
“Consistent enforcement is far more important. Given that the vast number of GBV incidents are unreported, it’s clear that many victims do not believe in the justice system’s ability to put away the perpetrators.”
2. Intimidation as an offence
Vallabh said that there are several concerns around the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill, which creates a new offence of sexual intimidation, extends the ambit of the offence of incest, and extends the reporting duty of people who suspect a sexual offence has been committed against a child.
The introduction of intimidation as an offence is particularly interesting, she said.
“It is the first time in South African law that the mere threat of a sexual offence may in itself be an offence. What’s going to be interesting is the burden of proof needed to determine whether you could actually succeed with a sexual intimidation claim.
“That means there are going to be some very interesting developments around how to prove that sexual intimidation took place and how seriously intimidation claims will be taken.”
Unlike some of the other measures in the three bills, creating the intimidation offence is an encouraging step because it is potentially a preventative measure — someone successfully prosecuted for sexual intimidation might be prevented from committing a more grievous crime later on, Vallabh said.
3. Extended protection and an obligation to report
Another important change is the expansion of the Domestic Violence Amendment Bill to cover people in engagements, dating, in customary relationships and actual or perceived romantic, intimate or sexual relationships of any duration, Vallabh said.
The bill is also significant for the expansion of protection to older people and children, she said.
“Just as important as these new protections are the reporting duties created by the bills. People in vulnerable categories can find it especially difficult to report incidents of violence against them, meaning the onus falls to those around them.
“What the bill has done is to seek to regulate people’s reporting duties, which has increased the ambit of who the reporting person can be. It’s now open to be any person who is aware of a sexual offence being committed against people who are vulnerable.”
In effect, that means there’s now a positive obligation on people to report offences, she said.
“If there’s a child or somebody who is disabled involved, and if you’ve got the knowledge or reasonable belief that a sexual offence has been committed, you actually have an obligation to report it. Failure to do so is itself an offence.
“All of this acts as an important reminder that the problems of gender-based violence and sexual offences aren’t just for the police and justice system to deal with. They are wider societal issues that we all need to play our part in addressing.”
Laws can only do so much
Ultimately, the new bills contain some important steps forward when addressing South Africa’s unconscionable levels of gender-based violence, said Vallabh.
“There can also be no doubt that they are well-intentioned. In and of themselves, however, laws can only achieve so much. My concern relates to the enforcement and the enforceability of these provisions.
The real test is in carrying out the enforcement provisions contained within them.”
Vallabh said that enforcing them properly will require a monumental shift in policing.
“South Africa’s GBV conviction rate is, to put it bluntly, appalling. Between March and September 2020, just 130 of the 4,058 people arrested for alleged GBV were convicted, representing a conviction rate of just 3%.
“Laws can and do help, but only if perpetrators really believe they’ll face the consequences for breaking them.”
The bills will receive further consideration by the National Assembly and president Cyril Rampahosa before being signed into law.