The NPA’s Sexual Offences and Community Affairs (Soca) unit welcomes the three pieces of legislation that seeks to amend crucial provisions in the fight against gender-based violence (GBV).
On January 28, President Cyril Ramaphosa signed into law legislation aimed at strengthening efforts to end GBV, with a victim-focused approach on combating the scourge. These are the Domestic Violence Amendment Act, the Criminal Law (sexual offences and related matters) Amendment Act and the Criminal and Related Matters Amendment Act. This GBV legislation impacts on the mandate of the National Prosecuting Authority (NPA).
It requires the NPA’s Sexual Offences and Community Affairs Unit to develop directives of the mooted amendments by supplementing the National Prosecution Directives in respect of the legislation.
The Domestic Violence Amendment Act amends the principal Domestic Violence Act, 1998, by extending the definition of domestic violence to now include elder abuse, coercive behaviour and exposure of a child to domestic violence. It further stipulates how certain functionaries, persons and government departments must deal with acts of domestic violence and matters related thereto.
Of importance, a prosecutor may not refuse to institute a prosecution or withdraw a charge in respect of any offence against a person in a domestic relationship where the perpetrator inflicts an assault of grievous bodily harm or dangerous wound against the complainant; or where a complainant is threatened with a weapon without the express authorisation by a senior member of the prosecuting authority, who is designated to give such authorisation, in writing by the director of public prosecutions. This takes away any potential for arbitrary decisions by a prosecutor and adds more checks and balances to the process of dealing with such cases for the benefit and protection of the victims.
The Criminal Law Amendment Act extends the ambit of the offence of incest; introduces a new offence of sexual intimidation and regulates the inclusion of particulars of persons in the national register for sex offenders. In this regard, sexual intimidation is defined as a person who unlawfully and intentionally utters or conveys a threat to a complainant that inspires a reasonable belief of imminent harm in another person and that person shall be:
- Raped;
- Compelled to rape someone else;
- Sexually violated;
- Compelled to sexually violate someone else;
- Compelled to sexually violate himself or herself;
- Compelled to witness a sexual offence, sexual act, or an act of self-masturbation;
- Exposed to the genital organs, anus or female breasts of another person; or
- Exposed to child pornography.
The national register for sex offenders must now include the names of persons convicted of sexual offences where the victims are regarded as vulnerable persons with mental and physical disabilities, elderly people, etc. The purpose of the register is to prevent repeat offending or opportunistic exposure to environments with children by convicted sex offenders.
Criminal and Related Matters Amendment Act, this act amends four pieces of existing legislation. The Magistrates Courts Act, 1944, now provides for the appointment of intermediaries and the giving of evidence through intermediaries in proceedings other than criminal proceedings, the oath and competency of intermediaries and the giving of evidence through the audiovisual link in proceedings other than criminal proceedings.
The Criminal Procedure Act, 1977, now further enhances the regulation of the granting and cancellation of bail, the giving of evidence of using 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 related domestic-related offence to participate in parole proceedings.
The Criminal Law Amendment Act, 1997, now further regulates sentences in respect of offences that have been committed against vulnerable persons. Finally, the Superior Courts Act, 2013, provides for the appointment of intermediaries and the giving of evidence through intermediaries in proceedings other than criminal proceedings; the oath and competency of intermediaries and the giving of evidence through the audiovisual link in proceedings other than criminal proceedings and to provide for matters connected therewith.
The NPA Sexual Offences and Community Affairs unit welcomes the long-awaited new legislation aimed at strengthening efforts to end gender-based violence.
• Advocate Currie-Gamwo is special director of public prosecutions for Sexual Offences Community Affairs
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