. (David Harrison)
In 2019, after the murder of Uyinene Mrwetyana by a postal worker, and faced with ongoing outrage at the incidence of femicide, President Cyril Ramaphosa spoke of a country traumatised and promised to tighten laws on violence against women.
He finally signed three amendment bills into law late in January 2022.
But researchers are concerned about the ill-disciplined South African Police Service’s (SAPS) dismal record of implementing existing laws and the disconnect between some of the new ones and what they were drafted to cure.
Lisa Vetten, a research associate at the University of Johannesburg, said the amendments were not research-based, which cast doubt that they could curb a problem rooted in social conditions that showed no sign of improving.
“Reforming law can be a distraction from the massive problems of implementation,” she told the Mail & Guardian.
“People have perhaps become over-enthused, and overly optimistic about what the amendments can accomplish and they don’t address the underlying problem.
“Most of the problems that we see in government are about implementation. If they cannot implement existing law, I really don’t see how they are going to be able to implement what is sometimes quite complex new interventions. Everything else is window-dressing if you don’t have a functional state, which we don’t right now.”
A case in point is the Sexual Offences and Related Matters Amendment Act. It broadened the scope of the National Register for Sex Offenders to protect women in shelters and people over 60 in community-based care institutions.
After more than 20 years in the field, Vetten said she does not know of a single case “of a woman going to look for work in a shelter in order to sexually abuse the other women in there,” adding that because many staff at shelters were themselves former abuse victims, the amendment was not only pointless but insulting.
Nor has Vetten come across a case of someone seeking employment at an old-age home in order to sexually victimise the residents.
“The much bigger problem is older women who live alone in rural areas who are horribly raped because of the isolation, and they have no security.”
Because of their circumstances, when these women reach shelters, they often do not stay long.
“There is nobody at home to look after their animals and their home and they are worried that they will be robbed while they are in the shelter, so they leave after three or four days and go home. There is no help for them. Could we not have thought about putting in place security measures for elderly women who have experienced that, could we not be thinking about community safety watches, could we not have been a little bit more creative?” Vetten asks.
The amended law does recognise the real problem of students being sexually victimised and to this end makes it compulsory to enter into the register the names of perpetrators. But the problem is that in academia the vast majority of cases land at a disciplinary tribunal, not in court.
Those cases, says Vetten, “will never ever end up on a register because to be on the register you have to be found guilty in a criminal court. It is utterly meaningless.”
Those who drafted the amendment may have done better to compel the department of higher education to start a register for all those who have been dismissed for having sexually harassed or abused staff or students, for institutions to consult when they are looking to employ lecturers.
“Because there is a problem in universities with lecturers moving around, and people don’t ask. That could have been useful but it is the wrong remedy.”
“We run the risk of making populist legislation,” she said, or engaging in what she called “isomorphic mimicry” — trying to emulate successful states’ measures by simply replicating the legislation, but running the risk of failure at the implementation level.
“You conflate form with function … you set up a structure that is toothless, but you can tick the box. At least you it looks like you’ve done something. That is what government does all the time.”
Sheena Swemmer, the head of legal compliance at the Centre for Applied Legal Studies, said the registry seemed an example of how the state legislates to distract from an inability to enforce.
“It still isn’t clear that these registries work anywhere, but I can tell you that it will not work in South Africa because of the shoddy upkeep of registries, they are not updated properly, they are not accessed,” she said.
“It is well-intentioned but it is really a failure of implementation on the part of the police with regards to sexual offences and perhaps in terms of prosecuting domestic violence on the part of the National Prosecuting Authority. Much of this is over-legislating to save face […] but the [existing legislation wasn’t] being enacted anyway.”
The Criminal and Related Matters Amendment Bill restricts the granting of bail to suspected perpetrators of sexual violence, rape and femicide; allows victims to testify through intermediaries and extends the instances where evidence can be given via audio-visual equipment.
Vetten recalls observing a specialised court dealing with child rape that took in cases from three other jurisdictions because it was the only one that had the equipment to allow children to be shielded from perpetrators when they testified.
“In the time I was there the equipment worked only once. I observed cases where after the matter had to be postponed three times, the individuals did not come back.”
The Domestic Violence Amendment Bill introduces online applications for protection orders against domestic violence and places new obligations on the health and social development departments to assist victims.
The bill in its initial form was, Swemmer said, probably one of the most progressive anywhere and the amendment further expands the definition of domestic violence to include spiritual abuse, elder abuse, coercive and controlling behaviour and exposing children to such behaviour.
But there is ample evidence that, 21 years after the law was introduced and it became an offence for the police not to assist abuse victims, they often fail to act and are still not held to account.
Compliance oversight shifted from the then-Independent Complaints Directorate, the precursor of the Independent Police Investigative Directorate (IPID), to the civilian secretariat for police in 2012. Vetten noted there was a 77% decrease in the number of complaints recorded in the first year after the function was transferred.
“Ambivalence still marks the exercise of accountability in relation to domestic violence. The police may well be required to answer for their conduct – but this is to an agency that possesses limited capacity and only weak institutional authority,” says Vetten.
Research agency Africa Criminal Justice Reform says when disciplinary action is instituted in the police, in 44% of cases the charges are withdrawn or the officer is acquitted.
Research by the Heinrich Böll Foundation showed that a quarter of police stations visited had failed to serve protection orders two months after they were granted, and even when served they were often not properly enforced. In 2009, five percent of women murdered by their partners had obtained such an order.
The Domestic Violence Act places a duty on police to help victims access shelters against abuse. The foundation carried out a survey in which researchers cold-called police stations in the Western Cape, KwaZulu-Natal and Mpumalanga, asking to be referred to a shelter, and found that only a quarter were able to provide accurate information.
Some simply failed to answer the phone, told callers to phone social workers instead or, demanded that the caller come in to the police station and lay charges or give a convincing account of abuse before they could be directed to a shelter.
Anecdotally, there were times when the police went beyond the call of duty. One officer rang back the following day to check that the caller had found sanctuary.
There is some evidence, Vetten said, that at times police have failed to implement the Act because they would be sued for wrongful arrest if they detained alleged perpetrators of domestic violence, which happens not infrequently, which pointed to incorrect training.
“That is the kind of thing that should have been fixed by the amendments. Go and look at your case law, see where they are being sued, send out instructions on how to issue an arrest.”
Swemmer said without changing the way police worked and thought about the problem, there would be no hope of preventing violence, only of punishing it.
“You need the police to be actively invested in a project where women would be safe, you need the National Prosecuting Authority to move away from this focus solely on winnable cases and instead look at the nuanced cases.”
“They need to buy into the idea of a society where women and children can walk free.”
Prevention was also about the context in which toxic masculinity forms and endures, Vetten said.
“Massive social inequality, lousy living circumstances, miserable futures with little hope, not enough to eat, childhoods that were deprived and neglected don’t make for very happy adult men, who tend to go and do destructive things with their unhappiness.
“South Africa is getting worse on those indicators, what is that telling us about violence?”
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