Since the scourge of the Covid-19 pandemic which resulted in the country being placed under lockdown, not only have we seen an increase in the amount of people being infected by the virus but also the amount of gender based crimes against Women and Children . A lot of women and children have no other option but to share space with their abusers due to the lockdown restrictions imposed to curb the rise of the infections.
It is disheartening that even amidst the pandemic vulnerable women and children are still being subjected to violence and abuse. Our country today has deteriorated to a point where our mothers, daughters and sisters do not feel safe and protected in their own country, a country in which they participated in its fight for liberation against oppression.
This Article will explain precisely what Gender based violence is, and what mechanisms have been provided for in law to address such cases.
What is Gender based Violence?
Gender based Violence is a term used to indicate harm inflicted upon individuals and groups that is connected to normative understandings of their gender. This connection can be in the form of cultural understanding of gender roles that influence and shape violent events along gender roles. Although gender-based violence can and does occur to persons of all genders, the term is used synonymously with regard to violence against Women.
Gender based violence includes physical, sexual and psychological abuse, threats, coercion and arbitrary deprivation of liberty and economic deprivation.
Legal Mechanisms provided for in Law
Our Legislators also known as law makers have enacted a number of Legislative Acts aimed at addressing the challenges faced by Women and Children on a daily basis. Our courts have also been developed to offer gender-sensitive and socio-political approach to cases and interpretation of legal and other relevant instruments.
The Constitution of the Republic of South Africa of 1996 is the Supreme Law of the Land and any law or conduct inconsistent with it is unconstitutional and invalid. It provides values and rights which apply to everyone within the borders of the Republic of South Africa.
The Bill of Rights (chapter 2 of the Constitution) provide for
- The Right to Life, section 11
- The Right to Equality, section 9
- The Right to human Dignity, section 10
- The Right to freedom and security of persons, section 12.
Gender based Violence directly violate the values and principles that our Constitution is founded on.
The Criminal Procedure Second Amendment Act 75 of 1995
This statute amends the Criminal Procedure Act of 1977, and further regulates the detention of accused persons and bail proceedings in court. Section 68(1) provides that Any Court to which a charge is pending in respect of which an accused has been released on bail may upon information under oath that he poses a threat to the safety of the public or to a particular person, or that it is in the public interest to do so, can issue a warrant of arrest for that person and make an order that bail be cancelled and for that accused to be committed to prison until the conclusion of the relevant criminal proceedings.
Domestic Violence Act 116 of 1998
The purpose of this Act is to afford Women and other victims of domestic violence the maximum protection from domestic abuse that the law can provide, and to introduce measures which seek to ensure that the relevant organs of State give full effect to the provisions of the Act and to the elimination of Domestic Violence.
This is done through creating obligations on law enforcement authorities such as the police to protect victims as far as possible and makes a further provision for victims to apply for protection and restraining orders against their abusers.
The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
This Act was created to comprehensively and extensively review and amend all aspects of the laws and the implementation of the laws relating to sexual offences, and further to deal with all the legal aspects of or relating to sexual offences in a single Statute.
It came as a response to the scourge in Sexual offences in the Republic and that being of grave concern. It also acknowledges that sexual offences have a disadvantageous impact on vulnerable persons, to the society as a whole and the economy.
That Women and Children being particularly vulnerable are more likely to become victims of sexual offences and sexual exploitation. The Act further provides that the prevalence of the commission of sexual offences is a primarily social phenomenon, which is reflective of the deep-seated, systematic dysfunctionality in our society and that although legal mechanism available to address this issue are reactive in nature, but they are nonetheless necessary.
The National Crime Prevention Strategy
In the year 1995 The National Crime Prevention Strategy was initiated. One of its obligations was to establish a comprehensive policy framework which will enable the Government to address crime in a coordinated and focused manner drawing on the resources of all Government agencies along with civil society.
The National Crime Prevention Strategy requires the development of wider responsibility for crime prevention and shift emphasis from reactive “Crime Control” which deploys most of the resources towards responding after crimes have been committed, towards proactive “crime prevention” which will prevent crime from occurring at all.
The Maintenance Act 99 of 1998
This Act provides for payments of Child or Spousal maintenance, it allows for garnishee orders, attachments of emoluments and orders to be taken against a person who is in default of paying their maintenance obligations.
There are many laws which have been enacted to address the issues of crime in more particular gender-based violence, as well as challenges faced by Women and Children. Sadly, the lack of implementation, and lack of awareness as to the availability of legal instruments available to victims, it results in these means of protection not being utilised effectively.
Our country’s foundation lies in the spirit of Ubuntu. One of the founding provisions of our constitution is the value of Human dignity, the achievement of equality and the advancement of human rights and freedoms. These values cannot be realised until our country is a safe environment for all those who live in it.
Parliament has done its part through creating laws to protect the vulnerable, however we as the community bear the responsibility to work hand in hand with law enforcement officials to make sure that these laws are upheld, and those who contravene these laws are reported to the police so that they can be held accountable by our capable judicial system. The power lies with us to make South Africa a safer place.
- The National Crime Prevention Strategy
- The Criminal Second Amendment Act, 1997 [No. 75 of 1997]
- The Maintenance Act,1998 [No. 99 of 1998]
- Domestic Violence Act, 1998 [No.116 of 1998]
- The Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 [No. 32 of 2007] and
- The Constitution of the Republic of South Africa of 1996.