Dr Llewelyn Curlewis of the University of Pretoria’s Department of Procedural Law details the many and varied barriers to prosecuting gender-related offences. 

The 16 Days of Activism Against Gender-Based Violence campaign will once again be observed this year, and calls upon governments, development players, civil society, women’s organisations, young people, the private sector, the media and the United Nations system to join forces to take action. The campaign, which was launched in 2008, is led by the international civil society. It commences on 25 November, the International Day for the Elimination of Violence against Women, and ends on 10 December, Human Rights Day.

This campaign is indicative of the fact that violence against women in particular is the most pervasive breach of human rights around the world – and South Africa is no exception. The idea behind the 16-day campaign is to increase awareness, galvanise advocacy efforts, and share knowledge and innovations to end this scourge of modern society. This year’s theme is ‘Invest to Prevent Violence Against Women and Girls’, and its main focus is on the importance of financing different prevention strategies to eliminate GBV.

Any type of crime where one of the major factors contributing to the action (which is one of the elements of the crime) is that of a gender-related issue will, in principle, qualify as such. Examples include both common law and statutory offences in the South African legal system, such as murder, culpable homicide, various forms of assault, domestic violence and forms of harassment.

In terms of section 276 of the Criminal Procedure Act 51 of 1977, a court of law has various sentencing options at disposal once a conviction follows. It is impossible to predict the most appropriate form of punishment in each scenario, as a triad of factors must be considered before imposing a sentence: the seriousness of the offence, the personal circumstances of the offender and the interests of the society. Depending on the latter, the possibility of lengthy terms of imprisonment (including correctional supervision in terms of section 276(1)(i) of the act) is not excluded. It is impossible to indicate what the longest sentence 

would be for a GBV-related criminal offence, because of the fact that not all criminal cases are reported in law reports; also, our lower courts (which deals with more than 90% of all criminal cases) do not report judgments per se.

Unfortunately, on face value at least, we are not winning the battle in South Africa, and the success rate, depending on the various statistics (which are not always reliable) suggest that we sometimes win a battle but ultimately seem to be losing the war. What seems to be hindering us is, among others, the perception of a male-dominated society, which persists in this day and age, coupled with social welfare matters, of which poverty and a lack of job security seem to be among the most prevailing reasons.

There exists a myriad of barriers to the successful prosecution of GBV-related offences. For example, it is not uncommon for victims to withdraw a case even before the matter is attended to in court, often under the guise of the matter having been resolved by the family. Where the perpetrator is the sole breadwinner in a family, it is also not uncommon to see a matter ending in a “sudden death” purely for financial survival by the victims of GBV. There are also  issues related to the collection of reliable evidence, the lack of proper training of prosecutors, overburdened court rolls, financial constraints regarding police investigations and more.

Nonetheless, the National Prosecuting Authority (NPA) may insist on going forward with a prosecution despite the victim wanting to withdraw a case; that is because the NPA is in charge of criminal prosecutions in South Africa. After filing a complaint with the police, the victim is merely a state witness going forward. In criminal cases, the onus of proof on the state is that of one beyond a reasonable doubt (rather erroneous); however, in quasi-judicial proceedings (such as in the Domestic Violence Court), the onus is slightly more lenient in order to secure success, that is, a balance of probabilities (comparable to civil litigation). Evidentially speaking, proving emotional and/or financial abuse is probably easier.

Victims can also consider other courses of action other than criminal prosecution, including delictual claims, of which numerous categories exist, and interdicts to prevent future confrontations.

At the end of the day, there is no simple answer to eliminating GBV, and the best we can do is to continue taking a hard stance at all levels; this includes the strict enforcement of the law by all stakeholders in the justice system.

Victims should not hesitate to assist by providing corroborating evidence to the police; this is done by immediately securing evidence, such as taking photos of injuries, securing a J88 medical legal report or taking samples (including DNA). Any and all assistance will ultimately secure a conviction.