The NPA’s Sexual Offences and Community Affairs Unit welcomes the three pieces of legislation that seeks to amend crucial provisions in the fight against gender-based violence.

On 28 January 2022 President Cyril Ramaphosa signed into law, legislation aimed at strengthening efforts to end gender-based violence (GBV), with a victim-focused approach on combating the scourge of GBV. 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 Gender-Based Violence 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 to 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 a related person; or where a complainant or related person is threatened with a weapon without the express authorization by a senior member of the prosecuting authority, who is designated to give such authorization, in writing by the Director of Public Prosecutions (DPP). 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 (Sexual Offences and Related Matters) Amendment Act 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, whether directly or indirectly, a threat to a complainant that inspires a reasonable belief of imminent harm in another person and that 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. The need for the amendments must also be seen against the context of the general perception that this register does little to nothing to reduce reoffending, and that now there will be more stringent safeguards for vulnerable groups. In addition, the register will go a long way in protecting the public especially the children in curbing the prevalence of amongst other things child pornography etc.   This also further regulates the removal of particulars of persons from the National Register for Sex Offenders. The Act also enhances the reporting duty of persons who are aware that sexual offences have been committed against persons who are regarded as vulnerable in terms of the Act.

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.

This legislation tightens bail and minimum sentencing provisions in the context of gender-based violence. It extends the role of the intermediaries to assist not only children but also older persons who are vulnerable. The NPA Sexual Offences and Community Affairs Unit welcomes the long-awaited new legislation aimed at strengthening efforts to end gender-based violence. The amendments are a step in the right direction.

The Unit is in the process of revisiting the policy directives to ensure that the NPA complies with the amendments and that there is an effective and efficient implementation of this legislation.

These are groundbreaking amendments, in our pursuit to end gender-based violence in South Africa aimed at strengthening the victim-centred approach in our criminal justice system when we deal with cases of gender-based violence to ensure that the most vulnerable in our society are free to walk the streets without fear and to ensure that perpetrators no longer have the freedom to abuse victims with impunity in our society.     

Adv Bonnie Currie-Gamwo

Special Director of Public Prosecutions: Sexual Offences Community Affairs (SOCA)

Connect with Us