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BUSINESS NEWS - It is no secret that the women of South Africa are plagued by violence. Gender-based violence (GBV) is a deep-seated and widespread problem that has a disproportionate impact on every aspect of women's lives. GBV is systemic and entrenched in South African institutions, cultures and traditions.
The SAPS's statistics on violence, shows that 902 women were killed from October to December 2021. During these three months, 11,315 women reported rapes, meaning that about 123 cases were reported per day.
These statistics are self-evident that the SAPS and South African courts are failing to protect our women.
According to a 2021 report by Statistics South Africa (click here), households' satisfaction with the dealings with criminals by the SAPS and courts declined from 59.4% and 63.9% to 54.2% and 41.1% respectively from 2013 to 2018.
The outcry of South African women was finally heard, when President Ramaphosa approved three GBV Bills as part of South Africa's legislation on 28 January 2022.
It is important that women are aware of how these laws can protect them:
- Criminal Law (Sexual Offenses and Related Matters) Amendment Act Amendment Bill [B16-2020] (click here)
- Recognizes sexual intimidation as a criminal offense;
- Increases a person's duty to report when a child is suspected of being a victim of sexual offenses;
- VERY IMPORTANT: Provides that the details of persons convicted of sexual offenses are made available to the public.
2. Criminal and Related Matters Amendment Bill [B17-2020] (click here)
- Persons accused of GBV will only receive bail in exceptional circumstances and after a court’s careful consideration of the victim's feeling of security;
- Victims and relatives of deceased victims will have the opportunity to address the parole board before a decision can be made on parole.
3. The Domestic Violence Amendment Bill [B20-2020] (click here)
- The definition of domestic violence has been expanded to include the following victims of assault: persons engaged to be married, persons "dating" each other, persons in customary relationships, and persons within actual or perceived romantic, intimate or sexual relationships of any duration;
- Victims will soon be able to apply for protection orders online.
Advancing the protection of women did not end there and further relief was brought by the ruling of the Constitutional Court on 5 April 2022 in AK v Minister of Police (click here).
Firstly, the Court had to determine whether the failure of the SAPS to conduct a reasonably effective search to find the applicant after she had been abducted, assaulted and raped was wrongful. Secondly, the court had to assess the wrongfulness of the SAPS's investigation to hold the perpetrators accountable.
On 9 December 2010 at 14:30, the applicant was attacked, robbed and held captive between bushes and sand dunes on King’s beach, Gqeberha. She was repeatedly raped until she escaped during the early hours of the next morning.
The SAPS launched four searches on the day she went missing. First, a SAPS officer searched for her by driving along the coastline with a 4x4 vehicle. Second, a foot search was conducted on the beach. Third, a dog search by the K9 Search and Rescue Unit. Fourth, a helicopter searched for the applicant for 20 minutes. The searches excluded the specific area where the applicant was held, and her attackers have until today not been captured.
Following proceedings in the High Court and the Supreme Court of Appeal, the Constitutional Court found that the negligent search and investigation of the SAPS, which had caused the applicant harm, was unlawful.
The SAPS violated their statutory and constitutional duty to keep citizens safe and therefore, the Minister of Police could be held liable in delict for the applicant's damage.
The SAPS's four searches were negligent because reasonable police officers in the same position would have included the area where the applicant was held captive. During the investigation, the SAPS committed two negligent omissions: they failed to interrogate “bush sleepers” in the area and failed to study CCTV footage promptly.
It was also found that the SAPS's negligent omissions were the factual and lawful cause of the applicant's damage. If she had been found earlier, she would have been spared from hours of rape.
This judgement proves that South African courts understand the seriousness of the protection against GBV. It encourages victims of GBV to report and hold the SAPS accountable for their failures.
The majority of the Judges found that this ruling would not hinder the SAPS in carrying out their duties, but that victims of GBV would be protected if they chose to litigate.
It is so important for women to know that changes are happening in South African courts. Victims now have better odds when choosing to hold the SAPS accountable for their poor service delivery.
Women and any other victims need to know the measures that are available to protect themselves and to take action against the SAPS and may assist to a large extent to address South Africa's shocking GBV statistics.
For the Constitutional Court's summary of their groundbreaking judgment, click here.
Article by Suegnet van Rensburg, LLB (Candidate Attorney)
For more information kindly contact Suegnet at suegnet@rgprok.com. www.rgprok.com
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