Our South African President, Cyril Ramaphosa expressed his views on the Gener based violence in our country. He declared Gender Based Violence as a pandemic in South Africa. For this reason, there has been three General Based Violence Bills passed by our Parliament. 

This new legislation is aimed at strengthening efforts to end the Domestic Violence or Gender Based Violence within South Africa. 

The Gender Based Violence Bills which have now been enacted are as follows: 

1. The Domestic Violence Amendment Act 14 of 2021
2. The criminal Law (Sexual Offences and Related Matters) Amendment Act 13 of 2021
3. The Criminal and Related Matters Amendment Act 12 of 2021. 

THE DOMESTIC VIOLENCE AMENDMENT ACT: 

This amendment of the Domestic violence Act 116 of 1998 addresses challenges, gaps and anomalies which have manifested since the Act came into operation in 1999.

The amended bill includes new definitions such as “controlling behaviour” and ‘coercive behaviour”. It also expands the existing definitions such “domestic violence”, to include spiritual abuse, elder abuse, coercive behaviour controlling behaviour, exposing minor children to domestic violence. The previous Act had 24 definitions, it now holds 53 new definitions to limit gaps in the Act. 

The Domestic Violence Amendment Act also allows for online applications for protection orders against acts of domestic violence and imposes obligations on functionaries in the Department of Health and Social Development to furnish certain services to victims of gender-based violence. 

THE CRIMINAL LAW (SEXUAL OFFENCES & RELATED MATTERS) AMENDMENT ACT: 

Chapter 6 of the aforementioned Act has been amended to the following: 

1. Expands the scope of the National Register of Sex Offenders (NRSO) to also now include all sexual offenders and not only sex offenders relating to children and persons who are mentally disabled.

2. The Act further expands the list of persons who are to be protected to include other vulnerable persons, including young women, persons with physical, mental, or intellectual disabilities and people who are over the age of 60 years old. 

3. The act has also increased the periods for which a sex offender’s details must remain on the NRSO before it can be removed from the Register. 

The objective of this amendment is to improve the prevention of sex crimes. It also proposes to expand the ambit of the crime of incest and introduces a new offense of sexual intimidation. The Act also regulates the reporting duty of a person who is aware that Sexual Offenses are being committed against persons who are vulnerable. 

THE CRIMINAL AND RELATED MATTERS AMENDEMENT ACT: 

This amendment now provides for the appointment of intermediaries and the giving of evidence or testifying through intermediaries in proceedings other than criminal proceedings; the oath and competency of intermediaries; and the giving of evidence through an audio-visual link in proceedings with the assistance of intermediaries; other than criminal proceedings. 

The Act further regulates the granting and cancellation of bail; the giving of evidence by means of closed-circuit television or similar electronic media; the giving of evidence by a witness with physical, psychological, or mental disability, the appointment, oath and competency of intermediaries, and the right of a complainant in a domestic-related offence to participate during parole proceedings. 

The amendment of the Criminal Law Amendment Act now regulates sentences in respect of offences that have been committed against vulnerable persons, or where there was domestic violence or Gender based violence. 

The new bill explains the circumstances in which a complainant can give evidence through an intermediary and provides for evidence to be given through audio-visual links in proceedings other than criminal proceedings. 

This legislation also tightens bail and minimum sentencing provisions in the context of Gender-Based Violence.

BAIL PROVISIONS: 

The amendments have also affected bail proceedings. Domestic Violence Offenses can no longer be dealt with by police nor by a prosecutor. Offences resorting under Domestic Violence and/or protection from harassment are now deemed as a Schedule 5 offence. 

A schedule 5 offence, the Accused person will need to satisfy the court that the interest of justice permits their release. Therefore, a formal bail application will need to be conducted. 

There are also inclusions in Section 60 of the criminal Procedure Act, where such section regulates bail applications. Bail Applications have been tightened and it will not be as easy to get bail as it was previously. 

In light of the above, the amendments are seen as steppingstone towards the alleviation of gender-based violence. It affords victims of domestic violence greater protection, as well as speedy and easy access to justice. At Otrebski Attorneys, we have a formidable litigation team who can readily assist with the application process for protection orders and/or bail applications.