South Africa has a very high prevalence of gender-based violence (“GBV”). The World Health Organisation reports that our rate of femicide is five times more than the global average. In light of these shocking statistics, the laws in GBV and sexual offences are being tightened and there were a few amendment bills announced to close loopholes and curb the exploitation of the legal system by perpetrators of GBV.
Some of these amendments have since been approved and passed as legislation. The Criminal Law (Sexual Offences and Related Matters) Amendment Bill and the Criminal and Related Matters Amendment Bill recently came into effect and this article highlights some of the changes that the amendments have begun to bring into effect.
Expanding the scope of the National Register of Sex Offenders and related matters
GBV can occur in the form of sexual offences and as from 31 July 2022, the scope of the National Register of Sex Offenders (“NRSO”) has been expanded. Previously, the NRSO only included sex offenders who were found guilty of sexual offences against children and mentally disabled persons. The current position is that any person who has been convicted of a sexual offence, must have his/her details included in the NRSO regardless of who the victim is.
The amendments also brought to light particular emphasis on vulnerable groups. There is a wider definition of vulnerable groups, which include the following:
- females under the age of 25 who receive a higher education or who stays in a building used as a residence of females who receive a higher education;
- persons being cared for or who receive shelter at a facility that provides services to victims of crime; and
- persons older than 60 years and who, for example, live in a retirement village or who receives 24-hour care in a facility.
This change is to prevent repeat offending of sexual offences against these vulnerable groups. Persons whose names appear on the NRSO are not allowed to work with anyone belonging in a vulnerable group and should disclose that they are on the NRSO when submitting applications for work with vulnerable groups. The timeframes that a sex offender’s name must remain on the NRSO before s/he can apply for it to be removed has also been increased. For example, a person who has been convicted of a sexual offence and was sentenced to a period of imprisonment of six to 18 months can now only apply for the removal of his/her details from the NRSO after 20 years have lapsed since his/her release from prison (this used to be 10 years).
Another important change is in respect of the duty on everyone to report sexual offences in certain instances. In the past, there was a duty on everyone to report any knowledge or suspicion of sexual offences against children and mentally disabled persons. The new changes expand this duty to also include the vulnerable groups.
Stricter bail provisions for offences related to domestic violence
The reality is that GBV most often occurs in a domestic relationship. Some of the major amendments to offer protection against GBV relates to bail provisions. The granting of bail and the cancellation of bail have been further regulated and tightened to protect victims of domestic violence. Persons who are arrested for offences against a person with whom they are in a domestic relationship, or contravening a protection order where the complainant is in a domestic relationship with the arrested person, will no longer be eligible to be released on bail before his/her first appearance in court (the so-called police bail or prosecutor bail). There have been numerous media reports of instances where an abusive partner is released on bail and almost immediately further harms or kills their victim, this provision is likely to prevent such occurrences.
Further changes that relate to domestic violence now provide that during an accused’s bail application, the court may consider the views of the complainant regarding their safety. In considering an application for bail, the court must also consider the existence of any domestic violence by the accused towards a complainant, and also whether there are any protection orders against him/her.
In cases where there is no protection order against the accused for an offence committed against a person with whom s/he is in a domestic relationship (for example, assault), the court must hold an enquiry and issue a protection order if the court has found that the interests of justice permit his/her release on bail.
If the accused fails to disclose any existing protection orders against him/her during a bail application, it can lead to the refusal to grant such an application. Additionally, if the accused violates the provisions of a protection order against him while being released on bail, the bail will be cancelled and the accused will be in detention pending the finalisation of the criminal case.
GBV is an extremely complex societal issue which requires that the law constantly evolve to address any gaps and loopholes in the legal system. Our laws have come a long way to address GBV. The amendments mentioned in this article were promulgated with the purpose of strengthening South Africa’s response to GBV, and women now have tighter safeguards provided in terms of legislation.
Did you know…
There is a legal duty to report sexual offences against vulnerable groups, such as children and the elderly.
Date: November 2022