DEEPA VALLABH: Will the new GBV bills bring SA a step closer to ending the scourge?

In June the National Assembly passed three new bills aimed at addressing the scourge of gender-based violence (GBV) in SA. The Criminal and Related Matters Amendment Bill, Domestic Violence Amendment Bill, and Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill are, according to government, the most far-reaching legislative overhaul in the fight against GBV and femicide.   

But just how much of a difference will the legislation make in a country where an average of seven women a day are murdered and 51% of women say they’ve experienced some form of gender-based violence? The three bills create several new provisions and offences which aim to create increased protection for women.

Perhaps the most notable 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. 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. 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. 

We should have similar concerns when it comes to 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. It is the first time in SA 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, the creation of 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. 

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.It is also significant, as is the expansion of protection to older people and children. 

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. 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. 

Ultimately, the new bills do contain some important steps forward when it comes to addressing SA’s unconscionable levels of gender-based violence. 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. 

Enforcing them properly will require a monumental shift in policing. SA’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 consequences for breaking them. 

• Vallabh is head of Africa M&A and co-head of corporate & commercial, at CMS.