Understanding South Africa’s New Gender-Based Violence Laws
By Khanyi Mlaba
South Africa’s President Cyril Ramaphosa recently introduced three new bills to parliament that are designed to bring justice to the victims of gender-based violence (GBV).
While these bills have been approved by the cabinet, they are still up for commentary and changes from the South African public.
With these bills, the government hopes to tackle three key issues that relate to GBV: the process of applying for a protection order; state police not taking harassment claims seriously; and the lack of accountability and adequate punitive measures for offenders.
In one of his newsletters, the president emphasised that these bills have come as a result of the public protests that erupted in 2019, following the deaths of University of Cape Town student Uyinene Mrwetyana, University of the Western Cape student Jesse Hess, and boxing champion Leighandre Jegels.
He continued to highlight the importance of immediate response. “The women of South Africa have had enough of lukewarm actions that do not address one of the most fundamental rights — to live in freedom of fear,” he said.
How to have your say and change the law
All South Africans have the opportunity to review and add changes to the new bills before they become law. This part of law-making is important because it helps each new law cater to as many people as possible, and makes sure that nobody is left out of the new legislature.
The bills are currently available on the parliament website for anyone to go through, you can read them right here.
And if you notice something in a bill that you think should be changed? Go ahead. Parliament’s website details how you can go about making a submission to make changes to a bill. You can find everything you need to know about drafting and sending a submission here.
Rethabile Mosese, from Johannesburg-based nonprofit Lawyers Against Abuse, told Global Citizen that these submissions don’t take special skills or experience to write up, and highlighted that anyone can do it.
“The submissions don’t have to be technical, they can be as basic as you want, as long as you can show how it affects your rights,” said Mosese. “The more people who give comments, the more the Act can be refined to suit the masses.”
Get to know the new GBV bills
Before you head over to parliament’s website to review the amendments and make your own changes, here’s a summary of what you can expect from each bill.
The Bill to Amend Criminal Law (sexual offences and related matters)
The amendment of this Act recognises sexual intimidation as an official offence, which it had not done before.
This means that if you are threatened by someone’s behaviour towards you, verbally or otherwise, you can report it and seek legal action.
The bill also increases the reporting duty of those who suspect that a child is the victim of a sexual offence. It’s not clear yet who this duty is extended to, but it should be clarified as the bill is finalised.
Finally, the bill would extend the national register for sex offenders to not only include perpetrators who acted against children and people with disabilities, but all known sex offenders. It would also make sex offenders’ names available to the public for further accountability.
The Criminal and Related Matters Amendment Bill
This bill comes in response to public outcry against accused offenders being easily granted bail, and perpetrators only having to serve minimum sentences for very serious crimes.
With this bill, those accused of GBV could only be granted bail under exceptional circumstances. If these circumstances were accepted, the court would then have to consider a number of things before granting them bail, including whether or not the survivor would feel safe with the decision.
“The victim [would be] heard in court before bail is decided, this is something that currently doesn’t happen,” explained Mosese. “There is also a strict duty on the prosecutor to provide whether or not the accused already has a protection order against them, which did not need to happen before this bill.”
When it comes to parole, survivors or relatives of a deceased victim would have the opportunity to speak in front of the parole board before any decision can be made.
The Domestic Violence Amendment Bill
This bill would extend the definition of domestic violence to include victims of assault in those engaged to be married, those who are dating, those in customary relationships, and those in actual or perceived romantic, intimate, or sexual relationships of any duration.
This means that if you are hurt by someone who you’ve been casually dating, you would be able to make a case against them under the Domestic Violence Act. This extended definition would also include older citizens who have been abused by family members.
You would also no longer have to physically go through the court system to apply for a protection order. “Those who have the resources can get a protection order online,” said Mosese. “The order will then be sent to the accused by email.”
The protection order would also be added to a central digital depository that houses other orders and cases made against the same person. “The data on gender-based violence is usually inaccurate and case files often go missing, so the central digital depository should be able to help with that,” explained Mosese.
Although the online protection order process would be a game changer, it’s important to note that it may not serve everyone fairly, as it relies heavily on whether or not you have the resources to apply for an order online. These resources include computers, smartphones, and an internet connection.
The process could also put a victim’s safety at risk, depending on the case. As Mosese explained: “My only concern is serving the protection order by email to someone in the same house, without the protection of the police. You never know how they will react, and it can be a big safety issue.”
Accountability is a large motivator in the changes to the Domestic Violence Act — which is why this bill proposes that if you suspect or know that a child, an older person, or a person with a disability is the victim of domestic violence, you should report it immediately. If you failed to do so, you could be fined or receive a prison sentence.
The South African Police Service (SAPS) would also be held accountable if they do not follow the right procedures after someone has reported a case of domestic violence to them. Their negligence would be counted as misconduct and they must then be reported to the Civilian Secretariat for Police Service, Alvin Rapea (known as AP Rapea), who advises the police minister on civilian matters.
Make your voice heard and take advantage of the public participation process in making these bills law. Mosese highlighted that knowing the law and reading up on amendments can make a real difference in how GBV is tackled in South Africa.
She added: “It’s only once you’re aware of your rights that you can enforce your rights.”