Access to Justice
“Wa thintha abafazi, wa thinth’ imbokodo” (you strike a woman, you strike a rock) was chanted as thousands of brave women of all races marched to the Union Building on 09 August 1956. The march was organized by these women to protest legislation that was promulgated to control black people’s movements in the urban areas. This historical day sparked the resistance and fight against violations of black people’s human rights, particularly women’s rights, and, as a result, it contributed to the freedom of black people.
The enactment of the Bill of Rights later affirmed women’s rights and officially recognized women as equal citizens of South Africa. The right to equality is enshrined in our Constitution under Section 9 which states:
“(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
Section 7 of the Bill of Rights echoes the abovementioned provision as it states the following:
- This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.
(2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights.
The Constitution also created a Commission for Gender Equality to ensure that women are not discriminated against. The South African Human Rights Commission was also created to investigate human rights violations including cases where people have been discriminated against. Further, there are several pieces of specific legislation that have been enacted to enforce women’s rights. For instance, “The Choice on Termination of Pregnancy Act” was aimed at providing women with the right to safe and legal termination of pregnancies. The Recognition of Customary Marriages Act was also enacted to provide for the equal status and capacity of spouses in customary marriages.
To combat the high rates of gender-based violence in South Africa, the Domestic Violence Act came into force in 1999 and was purported to afford the victims of domestic violence protection from the domestic abuse and provided a legal remedy in the form of a protection order as a mechanism to enforce women’s rights to live free from violence. To combat the sexual violence suffered mostly by women and children, the Sexual Offences and Related Matters Act, as amended, was aimed at creating and amending existing sexual offences, improving the way the criminal justice system functions, and ensuring that government departments work together to protect complainants from unfair treatment or trauma.
South Africa has seen escalating rates of gender-based violence and femicide for decades. While the exact prevalence rates of gender-based violence cannot be confirmed as most the cases are not reported, one study found that 51% of South African women have experienced violence at the hands of someone they are in a relationship with. The South African government declared femicide a national crisis in 2019 and referred to gender-based violence more broadly as a second pandemic in 2020.
The Domestic Violence courts were specially established to administer protection order applications in terms of the Domestic Violence Act. The assigned magistrate’s duty is to establish whether there is a need for the Complainant (i.e. the victim) to be issued with the protection order against the Respondent. However, the Complainant faces the following challenges when trying to obtain a protection order:
- Complainants must travel long distances to courts specialised to apply for protection orders. For example, women in Orange Farm must travel to Vereeniging Magistrate’s court using two taxis, which costs them R54 roundtrip. Women in Diepsloot must travel to the Randburg Magistrate’s Court, costing R44 in travel fare.
- Women who lack information relating to domestic violence are often unable to articulate the specific types of abuse they have suffered. As a result, they are either denied an interim protection order or are sent back to amend their applications.
- Some members of SAPS will advise domestic violence victims to apply for a protection order in cases of common assault and assault GBH, instead of opening a criminal cases. In other instances, they will incorrectly advise individuals to apply for a protection order in cases of theft or robberies.
- Magistrates grant interim protection orders to Complainants who are deemed to be in danger. It is then the Complainant’s responsibility to take the protection order to the police station in their area so that it can be served on the Respondent before the court appearance. However, there are instances where the police officials are unable to accompany the Complainant to serve the Respondent due to lack of motor vehicles at the police station. In some instances, the Complainant is advised to first visit the Respondent’s residential address and check if they are available so that they can be served, putting the Complainant in danger.
There are also Complainants who are unable to serve the Respondent due to the police inability to locate them. Consequently, the protection order hearing will be postponed until he is able to be served.
- The Domestic Violence Court roll is often long and matters end up being postponed. This long process and lack of resources puts women at even greater risk of being further abused and/or killed.
- Victims of sexual offences are advised to report cases to the nearest police station and they also face the following challenges:
- Secondary victimization
While victims are supposed to be able to give their statement in a private area, they may be required to give their statement in the reception area in the presence of other people unknown to them. During this process, they are requested to give in-depth details of the incident.
- Lack of skilled police officials
Victims of sexual violence often complain about SAPS officials failing to treat them with compassion and empathy, possibly due to a lack of training.
- Rape kits
Once the statement has been taken, they are required to complete a rape kit at a clinic or hospital. In some police stations, victims will be told to visit these medical facilities on their own to get medical assessments and assistance.
Furthermore, there is a lack of rape kits in certain clinics. Consequently, there are instances where a woman has to wait overnight for a rape kit, during this time they would go to the bathroom and unintentionally destroying the DNA evidence. As a result, charges could not be lodged against their perpetrators.
The Sexual Offences Courts were also established to adjudicate cases relating to sexual offences such as rape and sexual assault. The challenges faced in these courts include:
- Lack of state resources
For example, the courts have postponed cases involving minors due to the lack of cameras necessary for them to testify in a separate room.
- Lack of skilled and qualified court personnel
For example, in 2021, a Sexual Offences Court Magistrate that was suspended due to the lenient sentences she awarded to convicted sexual offenders.
- The prolonged court procedures
Trial hearings are often postponed due to the lack of available court rooms, absence of court personnel, absence of the accused, etc.
One would say the South African government has taken ample steps to protect women’s rights, however it has proven to be difficult to enforce them as per the relevant legislation. Due to the abovementioned challenges, the victims of gender-based violence have resorted to withdrawing their cases and abandoning their protection order applications.
In the light of the above, it is difficult to reconcile what the abovementioned acts aim to do with the realities on the ground for women who have experienced gender-based violence. Most importantly, the poor implementation of these laws have enabled the perpetrators to continue violating women’s rights. Despite several attempts by the government to restore and protect women’s dignity, women still do not have faith in the justice system. As Rethabile stated in the past, there is a silent war on Women’s bodies.
