Opinionista Omphemetse S Sibanda 10 September 2019

The law on gender-based violence must be given teeth

Dear President Cyril Ramaphosa, and Minister of Justice Ronald Lamola: Our domestic violence legislation is clearly a toothless bulldog, so are the implementing institutional frameworks. Our women and children are assaulted, raped and killed like nobody cares. Let’s change the laws.

Women in this country… have a legitimate claim to walk peacefully on the streets, to enjoy their shopping and their entertainment, to go and come from work, and to enjoy the peace and tranquillity of their homes without the fear, the apprehension and the insecurity which constantly diminishes the quality and enjoyment of their lives. Yet women in this country are still far from having that peace of mind.”

Mr President Cyril Ramaphosa, and our dear Minister of Justice and Correctional Services, Mr Ronald Lamola, I am sure both of you as legally trained persons are aware that I just quoted the Supreme Court of Appeal in the case of S v Chapman [(1997 (3) SA 341 (A) at 345A-B].

The quoted paragraph summarised what women and children of our beloved Republic of South Africa have been and are asking to be provided: The unconditional peace and security of their being. Mr President, I don’t need to remind you of the November 2018 Declaration of the Presidential Summit Against Gender-Based Violence and Femicide, particularly Resolution 17 that calls on the government to “Revisit and fast-track all outstanding laws and bills that relate to GBV and femicide, including the decriminalisation of sex work.”

I am extending the plea by many woman and children in South Africa for the two of you to decisively deal with gender-based violence (GBV) and to implore all arms of government to afford women and children their constitutionally protected safety and security. The welfare of our women and children is at all times at risk; in fact, one can even equate GBV in South Africa to genocide against women and children.

According to the 2018 Crime Against Women in South Africa Report by Statistics SA, between the years 2000 and 2015, femicide (the murder of women on the basis of their gender) was five times higher in South Africa than the global average. But rather I do not use this statistical information because unscrupulous persons may use the same report to try and trivialise the problem of femicide by indicating that the very same report states that “homicide rates for men consistently stood at more than three times the rate for women during the period 2000–2015”.

What is shameful and identified in this report is that “3.3% of men and 2.3% of women in South Africa” who were surveyed “think it is acceptable for a man to hit a woman”.

How long do women and children in South Africa have to suffer at the hands of us men? What should be done? And why is it not done? I wish I could, but I cannot, address myself to the issue of the death penalty; nor can I think of chemical or surgical castration of rapists and paedophiles. Both the death penalty and castration put into the spotlight a constitutional catch-22 situation as they ignite debates about the right to life, involuntary medical treatment, informed consent, the right to privacy, and cruel and unusual punishment.

However, in line with the president’s promise to overhaul our law, in particular, the Criminal Procedure Act of 1977 (CPA), I propose the following, Mr President and Minister Lamola, to give you a head start:

Reconsider the minimum sentencing regime:

Mr President, the Criminal Law Amendment Act 105 of 1997 as noted by the Supreme Court of Appeal in the case of S v Vilakazi [2008] 4 All SA 396 (SCA) is a blunt instrument. The court was addressing itself on the minimum sentencing regime from a perspective different to mine; and mine is the perspective shared by women and children out there that the sentences for GBV must not be stagnated by so-called constitutional permissiveness, constitutional compatibility, and the determinative test punted by our courts such as S v Malgas 2001 (1) SACR 469 (SCA) with regard to our prescribed sentences regimes. Life sentences must be revisited because there is less sentencing for life in current life sentence practices.

Legislate domestic and ‘caring’ context of GBV as an aggravating factor:

Some judicial officers in South Africa have previously (expressly and/or impliedly) considered GBV less serious because it happened in the domestic context or the perpetrator was known to the victim; or the perpetrator showed “care”; and other factors:

The rape involved in the current matter does not in my opinion fall into the category of the worst instances of the crime. The appellant showed the complainant a knife with the threat that he would use it if she did not submit, but no actual violence was involved beyond the act of forced sexual intercourse itself. On the second occasion when the complainant was bleeding from her vagina, which might well have been menstrual, the appellant ceased his assault as soon as he became aware of it. Moreover, this was a case in which, according to the appellant’s previous conviction, there had been a history of prior consensual intercourse with the complainant, who was 13 years and nine months old at the time,” said Binns-Ward J (dissenting) recently in Zamla v S (A207/2016) [2018] ZAWCHC 130 (25 September 2018).

The attitude of our judicial officers and law enforcement officers towards GBV needs to change if we are serious about addressing the challenge of GBV holistically. Rape is the worst form of crime. Period. It is used as a weapon of war against women. The “domestic” and so-called “caring by the perpetrator” contexts of GBV must be an aggravating factor and never be considered in mitigation of sentence.

Our attitude and that of our courts should be that in GBV “offending behaviour makes the offending more serious because it represents a violation of the trust and security that normally exists between people in an intimate or family relationship” and “there may be a continuing threat to the victim’s safety, and in the worst cases a threat to their life or the lives of others around them”.

Women are exposed to double jeopardy; their estranged husbands and partners not only target them, they also target their children as was experienced in the case of the 29-year-old man who committed suicide after allegedly killing three children aged two, three and 11 at his house in Soshanguve township, Pretoria. Also, the four siblings allegedly brutally murdered by their father, in Wyebank, Durban last Tuesday. There are many such cases and they keep rising.

Criminalise femicide as a stand-alone offence from general murder:

Speaking to legislative measures on GBV, the United Nations Committee on the Elimination of Discrimination against Women, General Recommendation No. 19 (1992) on violence against women, recommended that signatory parties must: “Ensure that laws against family violence and abuse, rape, sexual assault and other gender-based violence give adequate protection to all women, and respect their integrity and dignity.” The laws should also: “Take all legal and other measures that are necessary to provide effective protection of women against gender-based violence, including effective legal measures, including penal sanctions, civil remedies and compensatory provisions to protect women against all kinds of violence.”

Mr President, can I remind you and your Cabinet that the UN Committee on the Elimination of Discrimination against Women in the case of AT v. Hungary, Communication No. 2/2003, adopted on 26 January 2005, held that the lack of specific legislation to combat domestic violence and sexual harassment is a violation of human rights and fundamental freedoms.

Our domestic violence legislation is clearly a toothless bulldog, so are the implementing institutional frameworks. Our women and children are assaulted, raped and killed like nobody cares. As a country, we don’t want the distinction of being scolded by the UN, which generally will not hesitate to act. For example, in the case of Sahide Goekce (deceased) v. Austria, Communication No. 5/2005, adopted 6 August 2007, and Fatma Yildirim (deceased) v. Austria Communication No. 6/2005, adopted 6 August 2007, Austria was advised to prevent and respond to violence “against women and adequately [provide] for sanctions for the failure to do so”.

The legislative intervention South Africa can take, Mr President and Mr Minister, is to criminalise femicide. There are numerous countries criminalising femicide that we can look to. A typical example is Costa Rica, which has enacted anti-GBV legislation called the Criminalization of Violence against Women Law (2007). Interestingly, the Guatemalan Law against Femicide and other Forms of Violence against Women (2008) takes a strong stance and provides that not even custom, tradition, culture or religion can justify GBV.

Conduct proper revision of the Criminal Procedure Act of 1977:

Mr President and Mr Minister, when revising laws or enacting completely new laws, sensitise our lawmakers that GBV is a violation of the rights in the Bill of Rights. Furthermore, Mr President and Mr Minister, any review and revision of existing laws and policies to combat GBV must deal expressly with a second victimisation of women and children when reporting the crimes.

Mr President and Mr Minister, take your cue from the Austrian Code of Criminal Procedure, which in 2006 included specific procedures and rights for women complainants and/or survivors of GBV in the criminal justice process with a view of avoiding their secondary victimisation. This is what I call conducting a proper legislative review to address GBV.

While at it, please provide for the training of police and criminal justice officials in GBV and ensure that the training is custom-made to imbue them with the necessary gender sensitivity when addressing GBV. In particular, roll out in-depth and thorough training for specialist prosecutors for GBV offences in alignment with the National Guidelines for Prosecutors in Sexual Offence Cases (1998).

I am going to assume that we are on track as a country with regard to the promulgation of regulations, protocols, guidelines and standards in terms of sections 66 and 67 of the South African Criminal Law (Sexual Offences and Related Matters) Amendment Act (2007). Those with a history of GBV must not be allowed near victims of GBV.

Another provision that will have to be amended as a measure to give teeth to your promise to amend the Criminal Procedure Act, Mr President, is to integrate delictual remedies for GBV into the criminal law (compensation) provision of section 301 of the CPA. Currently, section 301 covers the awarding of compensation only where the offence causes damage to or loss of property. The revised section 301 must obligate criminal courts to automatically consider compensation of victims of GBV by the convicted perpetrators and his/her estate. Let us not put victims of GBV through the trauma of having to claim compensation through civil courts.

Another way to avoid secondary victimisation, Mr President and Mr Minister, is to streamline and centralise investigative and court processes, such as having a looping electronic docket that avoids repetitive victim statement-taking to gradually eliminate repeat complainant/survivor testimony.

Punishment of law enforcement officials for dereliction of duty in GBV:

We heard last week how victims of GBV are ill-treated by some law enforcement officers when reporting and laying complaints. This is a pure dereliction of duty by our officials and must be punished. Punishment of dereliction of duty must be addressed through femicide legislation and other legislation. In Costa Rica, for example, the Criminalization of Violence against Women Law (2007) calls on public officials dealing with GBV, particularly violence against women, to “act swiftly and effectively, while respecting procedures and the human rights of women affected”, failing which they will be charged with the crime of dereliction of duty.

Make use of the available expertise in your law faculties:

With the funds that the government pumps into universities, it must be a no-brainer that the universities must give back to society, in this case through recourse to the expertise of law experts. These are the individuals who should help expedite the review of the laws to deal properly and decisively with femicide and other forms of GBV. Experts such as Prof SS Terblanche in his work The Guide to Sentencing in South Africa 3rd ed (2016), have questioned the glaring inconsistency in sentences for rape in terms of the Criminal Law Amendment Act 105 of 1997.

The point I am making is, if your crusade to amend laws to deal with GBV is in need of expertise to do the job properly, simply call on us law academics and the troops will get you the most progressive legislation proposal/bill to date, without the normal delays of the government’s legislative process.

Let’s have a frank and open national dialogue on GBV:

In her open letter to the president on GBV, Carol Bower asked for “our Parliament to consider a non-partisan day dedicated to the welfare of women and children in South Africa”. Perhaps let us graduate this to a National Dialogue on GBV Policymaking. The national dialogue must not be another talk show. Tangible and implementable results must be achieved. This time let us not consider a catalogue of declarations and wishful thinking commitments as the positive results. Declarations and wishful thinking commitments are not worth the paper on which they are written; they are just paper tigers that will not ameliorate the dire position in which women and children in South Africa find themselves. Furthermore, invite institutions such as the United Nations Entity for Gender Equality and the Empowerment of Women (UN Women) to be part of this national dialogue – and to help us draft a comprehensive policy framework and a national action plan or strategy to inform the femicide legislation and other legislation related to GBV.

Mr President, my letter is in the Spirit of Thuma Mina. If you need troops against GBV, I am available. DM

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