Women of South Africa – Know Your Rights

“And one day she discovered that she was fierce, and strong, and full of fire, and that not even she could hold herself back because her passion burned brighter than her fears.” – Mark Anthony, The Beautiful Truth

Every year, during National Women’s Month social media platforms increase awareness about gender-based violence (GBV) against women, which domestic violence is the most common of all gender-based violence, not only in South Africa, but across the globe. This has created a synopsis of cases reported in the media which sadly does not even signify the actual figures of daily cases where women have been prejudiced or have succumbed to the cruelty of oppression. According to Stats SA the murder of women is five times higher than the global average (2020 statistics). This means that in South Africa, women are five times more likely to be killed due to gender-based violence committed by men.

Notwithstanding the obvious element that violence against women has vastly increased under the volatile conditions brought about by the outbreak of the Covid-19 virus. The pandemic provoked an increase in gender-based violence against women, and more specifically abused women, who faced restrictions of movement due to lockdown levels being applied, which ultimately left them confined in the home of their abuser. As per reports, during the first week of the initial lockdown in March 2020, the South African Police Service reported receiving 2,300 calls for help related to gender-based violence. By mid-June 2020, a reported number of 21 women and children had been killed by a close familial in the country. A very cruel example was the inhumane and deplorable murder of 28-year-old mother-to-be Tshegofatso Pule, who went missing on the 4th of June 2020 and was found four days later, stabbed and hung from a tree in Johannesburg.

These acts committed against women globally have had a tremendously low conviction rate compared to other criminal offences. Even as far back as 14 September 1981, at the Conference of the Women’s Section of the ANC, Oliver Tambo made an influential statement regarding the empowerment of women wherein he said, “It remains true that the burden that women carry is seldom recognised. Their silent fortitude as they toil under the weight of manmade hardships often passes unnoticed and unsung.” Violence and abuse against women is an awfully bitter pill to swallow and has transgressed since as far back as history can recall.

There are numerous legislative provisions which have been implemented to protect the fairer sex, the most significant in our country being The Domestic Violence Act, The Criminal Law Amendment (Sexual Offences and Related Matters) Act and the Protection from Harassment Act, which all offer noteworthy protection for women and children alike.

Protection afforded to women by legislation

The Constitution of South Africa, Chapter 2, Section 9 affords rights and protection against Gender-Based Violence. In Chapter 9 of the Constitution, six institutions are established to strengthen and support the constitutional democracy in South Africa, two in particular deal with the issues of Gender-Based Violence – those being The South African Human Rights Commission and The Commission for Gender Equality.

The South African Human Rights Commission monitors and observes human rights and investigates grievances where human rights are violated. The Commission promotes gender equality, conducts education programs to foster public understanding of gender equality and The Commission for Gender Equality investigates disputes regarding gender equality where a complaint can be filed.

The Domestic Violence Act and protection orders

This piece of legislation is one of the most progressive pieces of legislation. This act recognises a wide range of violent acts against women, acknowledging that it can occur in a variation of familial and domestic relationships, giving Magistrate courts the power to assist victims by serving a court order on the abusers and extends to the workplace, and disarms the abusers and offers police protection, it also provides for victims to be maintained financially by the abuser while not staying in the same house.

The Act defines Domestic Violence as “…any act or threat of physical abuse; sexual abuse; emotional, verbal and psychological abuse; economic abuse; intimidation; harassment; stalking; damage to property; entry into the residence of a person sharing or having shared a domestic relationship with the perpetrator without that person’s consent, where the parties do not share the same residence; or any other controlling or abusive behaviour.”

The Domestic Violence Act also makes provision for the granting of protection orders which are written orders issued by a Magistrate to stop any person from committing any act of domestic violence against another person with whom he/she has a domestic relationship with.

The procedure to follow for the obtaining of an after-hours order, or on days outside of court days, is to contact the nearest police station who will have the contact details of the presiding magistrate/prosecutor. An application for the protection order can also be made on behalf of the victim by a third party including a social worker, health service provider or a relative. However, should the application be made by a third party, the victim’s written consent thereto must also be provided, which may prove to be a challenging journey should the abused be too afraid to act upon these steps.

The Criminal Law (Sexual Offences and Related matters) Amendment Act 2007

The aim of this act is to handle all legal aspects of or related sexual offenses and crimes under one statute. The Criminal Law deals with all matters surrounding rape and sexual assault. Under this act, anyone that has been victim to any one of the following crimes, has the right to be protected and report any of these sexual offences, including but not limited to sexual violence without consent, instances where somebody compels another to rape or sexually assault, instances where adults expose certain body parts or sexual activity to a child, instances where people sexually exploit and groom children or people with mental disabilities and attempt or incitement to rape or commit a sexual offence.

The National Union of Metal Workers of South Africa (NUMSA) and the South African Federation of Trade are two of the most notable organisations fighting and advocating on behalf of all women. They have committed themselves to challenging gender-based violence, gender discrimination and all forms of sexism. NUMSA passed resolutions from its inception committing the union to link violence against women as a workplace issue and resolved that NUMSA must become the driving force of change.

The granting of an interim order was taken on appeal in the matter of KS V AM (A3032/2016) [2017] ZAGPJHC 297; 2018 (1) SACR 240 (GJ) (24 October 2017). The court a quo was guided by the preamble to the Domestic Violence Act 116 of 1998 (the Act) in considering the meaning of domestic violence.  The court a quo went on to also consider the meaning of physical abuse noted as being “physical abuse means any act or threatened act of physical violence towards a complainant. And ’emotional, verbal and psychological abuse’ means a pattern of degrading or humiliating conduct towards a complainant, including:-

(a)        repeated insults, ridicule or name calling;

(b)        repeated threats to cause emotional pain; or

(c)        the repeated exhibition of obsessive possessiveness or jealousy, which is such as to constitute a serious invasion of the complainant’s privacy, liberty, integrity or security.

All of the above should be considered on a balance of probabilities as per the court a quo and the court noted that unlawfulness is not a requirement in terms of the Act. The Act specifically excluded the phrase ‘unlawful (ness)’ and referred only to conduct that ‘harms, or may cause imminent harm to, the safety, health or wellbeing of the complainant’. The court went on to make reference to Coetzee v Griessel (27576/2010) [2011] ZAWCHC 318 (24 August 2011) in determining whether or not to grant a final interdict. The following requirements must all be present: a clear right, which the applicant has to prove on a balance of probabilities e.g., the right to protection against physical abuse, an act of interference, which is an act constituting an invasion of another’s right; and proof that there is no other satisfactory remedy available to the applicant.

The court found in this case that there was a real right that stood to be protected and that right is the right to be protected against physical abuse, there was a history of domestic violence, and that the only security available was a confirmation order as this would continue to keep stable relations between the parties. Based on this the appeal was dismissed and the order made by the court a quo was confirmed.

Closing thoughts

Women are noticeably protected by the range of rights guaranteed in the new Constitution which entails the right to life, dignity and privacy, amongst others, but this does not mean our women are actually protected. It has now become even more evident that society should be urged to come together and say enough is enough! It is our responsibility as mothers and women to mentor and teach our succeeding generations to value and respect young girls and women to prevent these violent crimes from occurring. The voices and actions of men and women alike are fundamental in the fight against violence and abuse against women. Ultimately men, as fathers, brothers, husbands, or uncles must aid in putting an end to the abuse, assault, rape, and violence our women are faced with. All women, irrespective of culture, race, or religion, are deserving of the right to live without fear of oppression, abuse, or trauma.

If you, or if you know of someone who has experienced or who is experiencing gender-based violence or any form of abuse, you can call any of the following emergency contact numbers:

• GBV Command Centre: 0800 428 428 or dial *120*7867.
• South African Police Service Crime Stop: 08600 10111 or SMS the Crime Line on 32211
• Stop Gender Violence: 0800 150 150
• Suicide Helpline: 0800 567 567
• Alternatively you can visit http://gbv.org.za/

 

Contact Santie Van Eeden at Hammond Pole Attorneys if you have any enquiries about the above topic. 011 874 1800 / SantieVE@hpd.co.za