South Africa calls for comments on progressive GBV Bill

by | Oct 16, 2020

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About Jade Weiner

Jade Weiner is a qualified Attorney, Notary Public and Mediator from South Africa. After completing her articles of clerkship at ENS Africa, she chose to leave corporate practice and volunteer with various NPOs, gaining experience in entrepreneurship, female empowerment and skills development. Jade served as a law clerk for Chief Justice Mogoeng at the Constitutional Court of South Africa and worked as legal researcher at the Helen Suzman Foundation NPO- working to promote and honour the rule of law. Jade has recently graduated with her BCL degree from the University of Oxford focusing on gaining knowledge and skills to best pursue justice, freedom and fairness for all.

Citations


Jade Weiner, “South Africa calls for comments on progressive GBV Bill”, (OxHRH Blog, October 2020), <https://ohrh.law.ox.ac.uk/south-africa-calls-for-comments-on-progressive-gbv-bill/>, [Date of access].

Structural and legislative innovations aim to respond to gender-based violence plaguing South Africa. Recently, the “Victim Support Services Bill” (“Bill”) was presented for public comment. The Bill aims to address the rights of victims of violent crimes through an empowerment lens and calls for an integrated, multi-disciplinary response from public and private stakeholders.

The Bill is progressive in its ideation and intention. However, there remain shortcomings that if not addressed, stifle and render certain aims self-defeating. It is imperative that the form and substance as well as the content and desired context of the Bill are aligned in spirit and practical purpose.

Terminology

A key focus of the Bill is to empower. However, the exclusive terminology of “victim” could, in itself, be stigmatising and perceived as disempowering. Those affected by violent crimes should be able to self-identify as opposed to perjoritively being “labelled”. The widely referenced designation of “Survivor” could be used as an additional alternative throughout the draft in order to further Bill’s empowerment goal.

The promotion of dignity is key in terms of textual drafting as well as in substantive implementation. Proper nouns are specific and unique, while common nouns are more general in nature. Using lower-case references to the affected person – “victim” bypasses the opportunity to elevate status and attribute worth through the use of a proper noun.

Further, to be inclusive of those identifying with marginalised social groups, such as LGBTQI+, gender-neutral language could be applied throughout the Bill as opposed to “him/ her” in its current form.

Application

Overlooked opportunities to elevate dignity are evident in the failure to consider factual shortcomings experienced by affected individuals.

Clause 12 requires the protection of a “victim” at a police station from the time the matter is reported. Many police stations lack basic resources like, rape-kits, making practical evidence-gathering difficult and also contributing to an insensitive experience for the “victim”. Dignity kits, containing basic sanitary and hygiene products should be mandatorily supplied by the state so that “victims” can wash and have underwear should theirs be taken for evidence.

Clause 30(3)(b) allows for certain designated officials to “interview any victim cared for or accommodated in such facility”. Again, this provision fails to be victim-centric in not requiring informed consent from the “victim” to be interviewed and compounds the dehumanisation of a “victim” being the object, instead of the subject at a “victim support services facility”.

Limited scope

The bill purports to acknowledge the broad scope of the definition of “victim” but then limits the scope of its application to certain categories of “victims” and places its emphasis on victims of violent crimes. “Violence” includes emotional and economic abuse as well as physical harm or threats of physical harm. This “closed” list is definitively limited, resulting in the restricted application of the Bill.

Clause 4 provides a justification, “for the purposes of provision of psychosocial services there is a need to limit the application so as to be able to cost the services to be provided.”

However, “violence,” in the gender-based violence context is pervasive with legal and social systems often being blind to entrenched norms that prevail in private, domestic, public, and social spheres. The definition should be redrafted to include, but not be limited to, emotional and economic abuse as well as physical harm or threats of physical harm.

A recognition that violence may not neatly be categorised into the closed definition allows for the experiences of the “victim” to take precedent in accessing redress through the Bill. This wider approach is framed in entitlement and empowerment, as opposed to the Bill being the decisive power. It should not be accepted that for the purposes of costs, “victims” are required to fulfil certain described and predictive categories in order to access these services. Violent crimes are experienced individually, having individual effects, that should be the focus in accessing services.

Meaningful transformation requires an overhaul in perceptions and legal interventions. The prevalence of violent crime in South Africa requires the law to respond in an astute and practical manner. It is hoped that the public comments received on the Bill will help align state, public, legal and social perceptions that meaningfully empower those affected by violent crime in South Africa.

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