A bone of contention among the populace is how it is that somebody who is arrested for committing some form of gender based violence, is released on bail before their first appearance in court, thereby putting the victim in danger as the perpetrator may, out of anger retaliate against the victim or attack another victim altogether. But what are our lawmakers doing to address the deficiencies in the criminal justice system, so as to ensure that the penalties for gender based violence are heavy so as serve as a deterrent for would be offenders.

Well, the good news is, our lawmakers are hard at work and are in the process of finalizing 3 gender based violence bills whose aim is to reduce and eventually eliminate all forms of gender based violence. And in case you were wondering what a bill is, a bill is a proposed piece of legislation that becomes law once it is signed into law by the President.

So this article will delve into these 3 gender based violence bills, so as to understand the changes that are coming to our legal system, that will help to eliminate gender based violence.

Domestic Violence Amendment Bill

The Domestic Violence Amendment Bill has made it mandatory for people who hold certain positions of power, to provide assistance if they suspect that an incident of domestic violence is taking place and to report the matter to the relevant authorities. In terms of section 2A, an employee such as a medical practitioner, social worker, teacher or official employed in government at a public health establishment who in the course of duty becomes aware of an incident of domestic violence must do any of the following :-

“(a) counsel or provide emergency medical treatment before referring the person for further services;

(b) then in the case of an adult, provide the complainant with a prescribed list, containing the names, addresses and contact particulars of accessible shelters and public health establishments;

(c) in the case of a child render necessary assistance to ensure the safety of the child, including reporting the matter to SAPS and social services and ensuring that medical treatment is obtained; “

Another controversial addition into our law, in terms of the Domestic Violence Matters Amendment Bill, is that there will be a legal duty on each and every single person, to report the commission of acts of domestic violence if this comes to the person’s attention. Failure to do this, will lead to a criminal sanction.

The bill proposes that:

“(2B (1)(a) ) Any person who has knowledge or suspects that an act of domestic violence has been committed against a child, person with a disability or an elderly person or an adult in a domestic relationship, must report this immediately to a social worker or police official.

(b) And if they fail to do this, that person will be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding five years or to both a fine and such imprisonment. “

At first glance, once gets the impression that this is a drastic law, but if one looks at the statistics of gender based violence, and violence against children, it is understandable why our law markers have taken this stance.

Arrest of any person at the scene of a domestic violence incident

In terms of section 3 of the Bill, a peace officer may, without warrant of arrest, arrest any person at the scene of an incident of domestic violence whom he or she reasonably suspects of having committed an offence. Currently this arrest can only be effected on the perpetrator. However, widening the scope of who may be arrested the scene of domestic violence, will afford more protection to those vulnerable groups in our society, And furthermore, the person against whom the offence has been committed must be referred for a medical examination.

Powers and responsibilities of the Police

In terms of section 3A, if the police receive a report that an offence containing an element of violence has allegedly been committed during an incident of domestic violence and the member of the SAPS reasonably suspects that a person who may furnish information regarding that alleged offence is in any private dwelling, then that member may, without a warrant, enter those premises for the purposes of interrogating that person and obtaining a statement from him or her, and may use such force that is deemed to be reasonably necessary to overcome any resistance against entry to the dwelling, including the breaking of any door or window of that dwelling.

Application for a Protection Order online

And keeping up to date with technology, it would be possible to apply for a protection order on line, and this of great importance, especially in situation where the victim is in urgent need of protection from the perpetrator. This application can even be brought outside ordinary court hours or on a day which is not an ordinary court day. Then in a situation where the address of the perpetrator is unknown, the Bill also introduces the possibility of serving the interim protection order on line as well.

Criminal Matters Amendment Bill

This bill seeks to put in place heavier sentences for those accused of various forms of gender based violence such as limiting bail for those perpetrators and to make parole conditions even harder.

Tightening Bail Conditions

The Bill provides that an accused who is in custody in respect of any offence, referred to in Part II or Part III of Schedule 2 of the CPA such as rape, assault and murder, which are all forms of gender based violence, may not be released on bail prior his or her first appearance in a lower court.

This is a welcome change, because it is about time that victims of gender based violence are given the extra protection that they deserve.

Another positive change that the Bill has proposed is that the court, before reaching a decision on a bail application by an accused, must take into consideration the views of any person against whom the offence in question was allegedly committed, regarding his or her safety and furthermore, the court must consider any pre-trial services report regarding the desirability of releasing the accused on bail, if such a report is available.

Criminal Law Sexual Offences Amendment Bill

The purpose of the bill in simple terms is to extend the list of persons that can be added in the National Register for Sex Offenders that way people are aware of the criminal history of people that they allow in their communities or places of employment. Furthermore, to regulate the removal of persons that are listed in the National Register for Sex Offenders.

The National Register for Sex Offenders keeps a record of people who have been convicted of sexual offences against children and people who are mentally ill, so as to prohibit such offenders from being employed in a manner that places them in a position to work with or have access to children or persons who are mentally disabled. So in terms the law as it stands today, only those who committed sexual offences against children and mentally ill people will be recorded in the register.

The Criminal Law Sexual Offences Amendment Bill, has extended the category of people who may be violated by amending it from children and mentally ill, to persons’ who are vulnerable.”

What is meant by “persons who are vulnerable?”

In terms of the Bill, the term any ‘person who is vulnerable’has a broad interpretation and includes— a child, any young person under the age of 25 receiving tuition at a higher education college, higher education institution or private higher education institution as defined in section 1 of the Higher Education Act, 1997. It also includes a person with a physical, intellectual or mental disability; or an older person who is 60 years of age or older and who— (i) receives community-based care and support services; (ii) lives in a building, structure or facility used primarily as a residence for older persons; (iii) is cared for in a facility providing 24-hour care to older persons; or (iv) receives care or services from a caregiver, other than at a residence for older persons.

Removal of the offender’s name from the register.

The current act that being the Criminal law Sexual Offences and Related Matters provides for various periods after which an application can be made by the offender to apply for his or her name to be removed from the register. This depends on how long the term of imprisonment was.

So in a case where the perpetrator was imprisoned for 6 months to 18 months for example, in terms of the Criminal law Sexual Offences and Related Matters Amendment bill, the particulars of a person who has been sentenced for a conviction of a sexual offence to a term of imprisonment or correctional supervision without the option of a fine for a period of at least six months but not exceeding eighteen months, may on application be removed from the Register after a period of 20 years has lapsed after that person has been released from prison.

In terms of the current legislation, the application can be made after 10 years, so this represents an increase of another 10 years.

Furthermore, in a situation where the offender was imprisoned without the option of a fine for a period of six months or less, they may be removed from the National Register of Sex Offenders after a period of 14 years. In terms of the current legislation, it this 7 years, this is also another double increase.

Then with regards to a person who has been sentenced for a conviction of a sexual offence to any other form of lesser punishment, may on application remove such person from the Register after a period of ten years has lapsed since the particulars of that person were included in the Register. Under the current legislation, this is 5 years.

This note is provided for informational purposes only and not for the purpose of providing legal advice. For more information on this topic, please contact the author of this article, Elvis Tazarurwa (LLB), a Candidate Attorney at Lomas-Walker Attorneys.