Which Law Protects Citizens From Gender-Based Violence In South Africa

The Gender-Based Violence Bills

This new legislation is aimed at strengthening efforts to end GBVF, with a victim-centred focus on combating what the President refers to as an epidemic.

The Gender Based Violence Bills which have now been enacted are:-

1. the Criminal Law (Sexual Offences and Related Matters) Amendment Act 13 of 2021;
2. the Criminal and Related Matters Amendment Act 12 of 2021; and
3. the Domestic Violence Amendment Act 14 of 2021.

It is evident that these recent enactments have been done in the wake of the 2018 Presidential Summit against Gender-Based Violence and Femicide and forms part of the National Strategic Plan which was put in place to assist in combatting GBVF.

There was a declaration made at the Summit which stipulated that the government would inter alia:-

1. Fast-track the review of existing laws and policies on GBVF to be victim-centred and that ensure all other relevant laws respond to GBVF;
2. Implement recommendations that had been identified from reviews and address legislative gaps, and
3. Revisit and fast-track all outstanding laws and Bills that relate to GBVF.

The Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill

This amendment amends Chapter 6 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act to:-

1. expand the scope of the National Register for Sex Offenders (NRSO) to include the particulars of all sex offenders and not only sex offenders against children and persons who are mentally disabled;
2. expand the list of persons who are to be protected to include other vulnerable persons, namely, certain young women, persons with physical, mental or intellectual disabilities and persons over 60 years of age who, for example, receive community-based care and support services; and
3. increase the periods for which a sex offender’s particulars must remain on the NRSO before they can be removed from the Register.

The primary objective of this amendment is to improve the country’s prevention of sex crimes, with particular focus on paedophilia. It also proposes to expand the ambit of the crime of incest and introduces a new offence of sexual intimidation.

The Criminal And Related Matters Amendment Bill

This amendment has amended:-

1. The Magistrates’ Courts Act, 1944, to provide for the appointment of intermediaries and the giving of evidence through intermediaries in proceedings other than criminal proceedings; the oath and competency of intermediaries; and the giving of evidence through an audio-visual link in proceedings with the assistance of intermediaries; other than criminal proceedings;
2. The Criminal Procedure Act, 1977, to further regulate the granting and cancellation of bail; the giving of evidence by means of closed-circuit television or similar electronic media; the giving of evidence by a witness with physical, psychological or mental disability; the appointment, oath and competency of intermediaries; and the right of a complainant in a domestic-related offence to participate in parole proceedings;
3. The Criminal Law Amendment Act, 1997, to further regulate sentences in respect of offences that have been committed against vulnerable persons; and
4. The Superior Courts Act, 2013, to provide for the appointment of intermediaries and the giving of evidence through intermediaries in proceedings other than criminal proceedings; the oath and competency of intermediaries; and the giving of evidence through audio-visual link in proceedings other than criminal proceedings, and to provide for matters connected therewith.

It is noted that this amendment has provided for additional procedures which intend to reduce secondary victimisation of vulnerable persons in court proceedings. And has a clear aim to address GBVF and offences committed against vulnerable persons.

The new law expands the circumstances in which a complainant can give evidence through an intermediary and provides for evidence to be given through audio-visual links in proceedings other than criminal proceedings.

This legislation also tightens bail and minimum sentencing provisions in the context of Gender-Based Violence.

The Domestic Violence Amendment Bill

This amendment has amended the Domestic Violence Act 116 of 1998 to address practical challenges, gaps and anomalies which have manifested since the Act came into operation in December 1999.

The amended legislation includes new definitions, such as “controlling behaviour” and “coercive behaviour”, and expands existing definitions, such as “domestic violence”, to include spiritual abuse, elder abuse, coercive behaviour, controlling behaviour, and/or exposing/subjecting children to certain of listed behaviours.

The Domestic Violence Amendment Bill also introduces online applications for protection order against acts of domestic violence and imposes obligations on functionaries in the Departments of Health and Social Development to provide certain services to victims of domestic violence.

The laws 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.

President Ramaphosa stated that:-

“This legislation demonstrates democracy at work. Civil society’s demands from the gates of Parliament were heard and listened to, and gave rise to our nation reaching a point where the demands of citizens are now cast in our law.”

It is the Presidents belief that the newly enacted legislation will further protect victims of abuse and make it more difficult for perpetrators to escape justice.