Legal Articles

Gender-based violence (GBV) cases have been on a concerning rise over the years, a phenomenon that has proven challenging to ‘nip in the bud.’ Despite having laws in place to discourage it and bring it under control, it is thought that the circumstances around it often happen, make it difficult for the law to have an upper hand. Unrelenting, the legislature has made amendments to our law to curb GBV cases regardless.

What are the Challenges of Gender-Based Violence in South Africa?

The main challenge in curbing gender-based violence (GBV) cases is because they take place within a setting of related persons, often staying under the same roof. It is also a fact worth noting that added to this challenge, the persons are interconnected to an extent that even the victim may feel hesitant to report the abuse due to this interconnectedness. For example, a breadwinner in the home may abuse a dependant and it will make it difficult for the dependant to report the abuse for fear that they will lose the financial or some other subsistence support they are receiving from the perpetrator. What is concerning further is that sometimes the victim will be willing to report the abuse but the other family members will be against it, citing that it will disrupt the familial relations. All these factors then present a big challenge in curbing gender-based violence matters.

Our law is clear on gender-based violence, it is criminalised and harsh penalties may be imposed on perpetrators found to be inflicting abuse on GBV victims.

New GBV Laws in South Africa

In January 2022 the President of South Africa signed into law the Criminal and Related Matters Amendment Act 12 of 2021, the Domestic Violence Amendment Act 14 of 2021, and the Criminal Law (Sexual Offences and Related Matters) Amendment Act 13 of 2021.

The Criminal and Related Matters Amendment Act (commenced 5 August 2022) provides for the appointment of intermediaries to assist in testifying in proceedings other than criminal proceedings and the use of technology in testifying in proceedings other than criminal proceedings, in the Magistrate’s Courts and Superior Courts. It also amends the Criminal Procedure Act 51 of 1977 whereby it provides that where gender-based violence is involved, there is no more police nor prosecutor’s bail. Further, it provides for parameters in sentencing whereby the victims of the offences perpetrated are defined as vulnerable persons.

Domestic Violence Act

The Domestic Violence Amendment Act amended the Domestic Violence Act of 1998 to include new definitions. It introduced concepts referred to as controlling behaviour and coercive behaviour as forms of abuse. It also went on further to expand existing definitions within the main Act as well as taking an approach to use gender-neutral terminology, realising that gender-based violence can be perpetrated by either gender. The amendment Act also provides for an online system in the application of protection orders.

The Criminal Law (Sexual Offences and Related Matters) Amendment Act introduced an offense of sexual intimidation, increased the categories of persons that must be protected from harm/abuse, increased the timeframe during which a sex offender’s details are to be retained on the register of sexual offenders as well as an extension of the scope of sexual offenders regardless of the category of the victim.

The legislature has continued to play its part in society’s concerted efforts to curb the scourge of gender-based violence cases. What remains to be seen is how far these legislative interventions will go in ensuring that GBV is brought to the minimum if not to a complete halt.

We urge victims of GBV and those who are aware that someone is a victim of abuse, to report these as it is a responsibility imposed on all members of society to do our part in ending gender-based violence.

Van Deventer & Van Deventer Incorporated – Family Law Attorneys South Africa

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