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South Africa is on the cusp of the most far-reaching legislative overhaul in the fight against gender-based violence and femicide.
This was the view of President Cyril Ramaphosa, who hopes that three new amendment bills will “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 three key bills relating to gender-based violence were introduced in Parliament over the past week.
“Through the introduction of these bills, we are honouring the promise we made to the protestors last year and to all the women of this country,” Ramaphosa said, referring to the marches on Parliament nearly a year ago to protest against gender-based violence.
At the time, the nation was reeling from the murders of Uyinene Mrwetyana, Leighandre Jegels, Jesse Hess and a number of other women who had lost their lives at the hands of men.
“The anguish and the anger was palpable that day. As I received their clearly articulated demands, it was clear to me that we needed to act urgently and with determination. It was important to me that I did not respond with hollow words and empty promises,” Ramaphosa said.
“I committed to marshal the 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.”
The sad reality is that many survivors of gender-based violence have lost faith in the criminal justice system, he said.
“Difficulties in obtaining protection orders, lax bail condition for suspects, police not taking domestic violence complaints seriously and inappropriate sentences have contributed to an environment of cynicism and mistrust.”
Ramaphosa believed that these bills would help to restore the confidence of our country’s women that the law is indeed there to protect them.
The bills
1. The first is the bill 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.
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.
2. The Criminal and Related Matters Amendment Bill tightens, among others, the granting of bail to perpetrators of gender-based violence and femicide, and expands the offences for which minimum sentences must be imposed.
“People are angry 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,” said Ramaphosa.
The amendments impose new obligations on law-enforcement officials and on our courts.
“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,” he explained.
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.
3. When it comes to 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 our country, the provisions of the Domestic Violence Act have been tightened. Domestic violence is now defined to cover those in engagements, dating, in customary relationships, and actual or perceived romantic, intimate or sexual relationships of any duration. 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 or to withdraw charges when it involves the infliction of bodily harm or where a weapon was used to threaten a complainant 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,” said Ramaphosa.
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 law is the one sure protector of all of society, but especially its most vulnerable. When diligently and fairly applied, it is the most powerful guarantor of justice,” he said.
“The women of South Africa have had enough of lukewarm actions that do not address one of the most fundamental rights of all – to live in freedom from fear,” said Ramaphosa.
“These proposed amendments are an appropriate response to a groundswell of dissatisfaction at the way survivors of gender-based violence have been treated by the criminal justice system in the past.
This government and its partners will make good by the women of South Africa. We will not let them down.”
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