NGOs call on the Department of Justice and Constitutional Development and Parliament to amend the 2007 Sexual Offences Act urgently

NGOs forming part of the Shukumisa Campaign view the ruling of the Western Cape High Court on 11 May with the deepest concern and call on the Department of Justice and Constitutional Development and Parliament to amend this loophole and other weaknesses in the 2007 Sexual Offences Act as a matter of priority. Such an urgent amendment needs to be passed by Parliament within days.

Most of the new crimes created by the 2007 Sexual Offences Act deal with sexual offences against children and people with intellectual disabilities. The Western Cape ruling hits these two groups of victims hardest. Given the abuse of girls and boys with intellectual disabilities that has come to light in the last few weeks this is most dismaying.  

One implication of this ruling is that victims of the 29 sexual offences for which penalties have not been prescribed  may wake up to find that the perpetrator’s conviction has been overturned. We therefore urge the National Prosecuting Authority to appeal the decision as soon as possible. While an amendment to the law will affect future cases, a successful appeal will ensure that current convictions remain in place.

“This loophole is far from being the only defect in the 2007 Sexual Offences Act”, observed Joan Van Niekerk of Childline. “The 2005 Children’s Act legislated the creation of a National Child Protection Register recording the names of those who abused and neglected children. This did not stop legislators from creating a second, lesser register through 2007 Sexual Offences Act. This is a waste of government resources that is hard to accept, especially when legislators removed all clauses mandating the provision of comprehensive services to survivors of sexual offences and their families and the critically important monitoring of sexual offenders on the basis that this would cost too much.”

Yet another weakness of the 2007 Sexual Offences Act lies in how it deals with consensual sexual behavior between children aged 12 to 16. In April the Pretoria High Court heard an application by the Teddy Bear Clinic and RAPCAN to declare aspects of sections 15 and 16 of the Act unconstitutional. Amongst other things, these sections allow for consenting children under 16 to be prosecuted for kissing each other.

“Between 2004 and 2007 NGOs repeatedly asked for greater public participation in the drafting of the new sexual offences law. These requests for public hearings were repeatedly turned down. Had adequate public consultation taken place, many of these defects could have been cured,” said Lisa Vetten of Tshwaranang.

Now we call on both the Department of Justice and Constitutional Development, as well as the Justice Portfolio Committee, to meet with us urgently so that comprehensive, rather than piecemeal, amendments to the 2007 Sexual Offences Act can be considered.

Issued by

• Childline South Africa
• Community Law Centre, UWC
• Ekupholeni Mental Health and Trauma Center
• Gender, Health & Justice Research Unit
• GRIP – Greater Rape Intervention Project
• Johannesburg Child Advocacy Forum
• Justice and Women
• Lifeline Pietermaritzburg
• Limpopo Legal Advice Centre
• SANAC Women’s Sector
• Sonke Gender Justice Network
• The Teddy Bear Clinic
• The Western Cape Network on Violence Against Women
• Tshwaranang Legal Advocacy Centre
• Wits Reproductive Health and HIV Institute
• Women & Men Against Child Abuse

For more information please contact:
Lisa Vetten – Director at Tshwaranang Legal Advocacy Centre – 082 822 6725
Joan van Niekerk – Manager, Training and Advocacy, National Office at Childline South Africa – Tel: 031 207 9108 or 083 303 8322
Amber Howard Cornelius – Assistant Manager at Justice and Women – Tel: 033 394 9949 or 084 366 8086

Click here to read the judgment (on our site in Adobe pdf format)

Alliance partner organisations include the Law, Race and Gender Research Unit, UCT; the Rural Women’s Movement; the Rural People’s Movement; Sonke Gender Justice; the Women’s Legal Centre; the Community Law Centre, UWC; Section 27 and the Treatment Action Campaign.
The Bill will directly affect at least 17 million South Africans and has serious implications for democracy as a whole. Despite having sparked an outcry in 2008 when tabled in the National Assembly (NA), the Bill’s original provisions remain intact. The Bill has since been withdrawn from the NA and was reintroduced in the National Council of Provinces this January. As part of the legislative process, it will now be taken into public hearings in the provinces during April and May.

The Alliance for Rural Democracy contends that the Bill, in its current form, undermines democracy and constitutional rights and values. Because few rural people know about the Bill and its likely impact, alliance partners are assisting rural communities and organisations in raising awareness of the Bill’s content and implications. Alliance partners will keep a close eye on the provincial hearings and parliamentary process to ensure they pass democratic muster, and will put forward submissions demanding that the Bill be scrapped.

Sindiso Mnisi Weeks from UCT’s Law, Race and Gender Unit states that, “This Bill creates separate categories of citizenship reminiscent of apartheid. It strips rural people of basic citizenship rights. Those living in the former Bantustan areas will be second-class citizens, with no right to the legal representation and recourse the law allows for.”

The alliance believes that customary law continues to play an important role in the lives of many rural South Africans. However, the Bill does not appreciate the real-life experiences of people on the ground. The Bill was developed in close consultation with traditional leaders, rather than in consultation with the people who will be most affected by it, namely rural citizens, particularly women.

Says Desmond Lesejane from the Sonke Gender Justice Network, “This is a Chiefs’ Bill and not a people’s Bill. It will centralise power in the hands of a senior traditional leader and distort living customary law.”
Nomboniso Gasa, researcher and analyst, adds, “The Bill will empower traditional leaders to single-handedly make, apply and adjudicate customary law. This undermines the separations of powers that are fundamental to the Constitution.”

As women form the vast majority of rural citizens and often find themselves in a vulnerable position in relation to male-dominated traditional institutions, they face particular problems in customary courts and will therefore be most adversely affected by the Bill’s failings. “The subordinate position of women is likely to be made worse by this Bill and our right to legal protection from gender discrimination will suffer a huge set-back,” says Sizani Ngubane from the Rural Women’s Movement.

On 10 April, the Department of Justice and Constitutional Development presented the Bill to members of the Western Cape Provincial Parliament. Henk Smith from the Legal Resources Centre, acting as legal advisor to the alliance, states that “at the Western Cape briefing, the Department conceded that there is valid criticism of the 2008 Bill and that there was insufficient consultation before it was introduced to Parliament. We, as the LRC, believe this Bill is ill conceived.”

The alliance calls for the Bill to be scrapped and for replacement legislation to take as its starting point the Constitution’s commitment to the social justice principles of equality, dignity and human rights, as well as the rights of ordinary rural people to participate in the formulation of laws that affect them.

The Alliance for Rural Democracy includes the following organisations:
Community Law Centre, University of the Western Cape (CLC); Corruption Watch; Co-operative Policy Alternative Centre (COPAC); Council for the Advancement of the South African Constitution (CASAC);Democratic Governance and Rights Unit, University of Cape Town (DGRU); Embrace Dignity Campaign; Empilisweni AIDS Education and Training Centre; Institute for Justice and Reconciliation (IJR); Law, Race and Gender Research Unit, University of Cape Town (LRG); Masimanyane Women’s Support Centre; Open Democracy Advice Centre (ODAC); Peddie Women’s Support Centre; Rural People’s Movement; Rural Women’s Movement; Section 27; Sonke Gender Justice; Students for Law and Social Justice (SLSJ); Treatment Action Campaign (TAC); Tswaranang Legal Advocacy Centre; Unemployed People’s Movement; Women’s Health Research Unit, School of Public Health and Family Medicine, University of Cape Town; Women’s Legal Centre Trust. The Legal Resources Centre (LRC) acts as legal advisor to the alliance.

For more information contact
Sindiso Mnisi Weeks (Law, Race and Gender Unit):
Cell: 072 616 8299
Desmond Lesejane (Sonke Gender Justice Network):
Cell: 084 5816305
Sizani Ngubane (Rural Women’s Movement):
Cell: 073 840 5151

As coordinator of the Karl Bremer Project a critical lesson I’ve learnt is the value of building relationships amongst stakeholders.   Stakeholders as you are no doubt aware are the nurse, doctor, Victim Assistance Officer, Site Coordinator, Investigating Officers, Case Manager and we as counsellors on site.  All of us are working towards ensuring that each and every survivor who accesses services at the TCC’s is treated with respect, feels safe and well supported throughout the process.

As Barbara Williams (TCC Jooste Project Coordinator) puts it “if we work together as a team we will ultimately add to the healing process of survivors”.  As stakeholders, it is evident that we all share the same vision in reducing secondary trauma which speaks to the passion and compassion for survivors.

Shiralee Mc Donald
Counselling Coordinator

“South Africa struggles with high rates of both sexual offences and HIV/AIDS. In order to address rape survivors’ vulnerability to HIV infection as a result of having been raped, the legislature introduced HIV-related services when they reformed South Africa’s law on sexual offences. Under the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, commonly referred to as the Sexual Offences Act, rape survivors have the right to receive post-exposure prophylaxis (PEP) for HIV, free of charge at public health care facilities.

In light of these legal developments, the Gender, Health & Justice Research Unit (GHJRU) undertook a two-year project to examine whether rape survivors are able to access PEP and other post-rape healthcare services.

The GHJRU undertook a study with fieldwork in five provinces – Western Cape, Eastern Cape, Limpopo, Free State and Gauteng – to assess the implementation of the law on PEP from the perspective of both providers (health care workers  and police officers) and rape survivors.”

Download the report: I Feel for Rape Survivors, but I don’t have the time, I’m always running

Monitoring was conducted in

• Gauteng by Tshwaranang Legal Advocacy Centre
• Limpopo by Thoyandou Victim Empowerment Project (TVEP)
• KwaZulu-Natal by Justice and Women
• Western Cape by Rape Crisis Cape Town Trust,  Rapcan,  Mosaic and Women on Farms Project

Download the Shukumisa monitoring report

During the 16 Days of Activism in 2010, civil society organisations participating in the Shukumisa Campaign conducted monitoring at 70 police stations, 31 courts and 11 hospitals across Gauteng, Western Cape, Limpopo and KwaZulu-Natal to assess the level of services which these facilities provide to rape victims.
Through observation and short, structured interviews, monitors evaluated the facilities according to certain criteria based around the Sexual Offences Act andrelated national policies.

We are currently working on the report of the 2011 monitoring.

Download the report

This week Parliament holds public interviews to fill the long vacant seats of commissioners in the Commission for Gender Equality (CGE). The CGE has been in disarray for years and has failed to deliver on its mandate to promote gender equality.

Gender justice organisations are coalescing to demand that the Ad Hoc Committee on the Filling of Vacancies in the CGE appropriately apply itself to selecting new commissioners. The following NGOs have come together to monitor the appointment process, including Sonke, Section 27, the Women’s Legal Centre, Thohoyandou Victim Empowerment Project, The Lesbian and Gay Equality Project, the Medical Research Council’s Gender & Health Unit, Nisaa Institute for Women’s Development, the Women’s Health Research Unit at the University of Cape Town.

Together, we call on Parliament to appoint commissioners who have a deep understanding of gender issues, a track record of gender activism, and vision for capturing the potential of the CGE, and experience to effectively lead the Commission.

It is an institution with a budget of R 60 million and weighty powers vested in it by the Constitution that should be used to advance the quality of life of women. It is essential new commissioners are appointed with the vision, capacity and drive to turn the institution around and ensure that it delivers on its mandate to the people of South Africa. The CGE’s wide array of legal powers, including the power to subpoena any person, and to initiate litigation in its own name, could be highly impactful in advancing gender transformation.

Interviews are taking place on 26th and 27th January at the National Assembly in Cape Town. On the 26th, the interviews are in committee room E305, and on the 27th in committee room E249.

For further information please contact:
Ms. Sisonke Msimang, Sonke Board Chair
+27 82 610-6705

Mr. Dean Peacock, Executive Director, Sonke
+27 72 461-7751

Mr. Desmond Lesejane, Deputy Director, Sonke
+27 84 581-6306

Lisa Vetten from Tshwaranang Legal advocacy centre speaks about some findings of the Shukumisa monitors in 2011.

Jayne Arnott of the Triangle Project is also featured, speaking about the experiences of black lesbians and hate crimes.

This podcast is in MP3 format and is a 16.5 MB download. To download and listen to to the podcast, click here

Thanks to Agenda for producing this podcast, which can also be found on their website at  http://www.agenda.org.za/women-and-the-legal-system/

Sonke Gender Justice Network (Sonke), is excited to announce two major international affirmations for the organisations work to end men’s violence against women and also rated by 80 leaders in the field as one of the top performing organisations working globally to end violence against women. As a relatively new organisation working across Africa to strengthen government, civil society and citizen capacity to support men and boys to take action to promote gender equality, prevent domestic and sexual violence and reduce the spread and impact of HIV and AIDS, we are thrilled to have our work recognised and hope it encourages men and boys from all walks of life to speak out against men’s violence against women.

French National Consultative Commission on Human Rights Prize: Sonke was selected by the French National Consultative Commission on Human Rights as one of six “distinguished” organisations out of 160 applicants. Founded in 1988, the French National Consultative Commission on Human Rights prize is awarded every year by the French National Consultative Commission on Human Rights (CNCDH) and rewards human rights defenders around the world for their action on the ground. This prize, presented by the Prime Minister of the French government, is awarded to individual or collective action on the ground, irrespective of nationality or borders, undertaken in France or abroad, with respect to specific themes every year. In 2011, the themes were the fight against human rights violations on the grounds of sexual orientation and gender identity and combating violence against women. Five prize winners share a total award of €75,000 granted by the Prime Minister in Paris on Saturday 10th, and a special mention distinguished the work of five other organisations worldwide. This year around 160 organisations have applied for the prize.

While Sonke was not selected as one of the five winners we are thrilled to have been selected as one of the six organisations to be distinguished by the French National Consultative Commission on Human Rights and we are honoured to share this recognition with the KZN Gay and Lesbian Network. For more on their important work see www.gaylesbiankzn.org.

Philanthropedia at GuideStar Global Survey: In a global survey conducted by Philanthropedia at GuideStar and released yesterday, Sonke was rated by 80 leaders from over 60 NGOs, research institutions and philanthropic organisations as one of the top performing organisations working globally to end violence against women. http://www.myphilanthropedia.org/research-report/international/violence-against-women.

Experts working in the field of domestic and sexual violence prevention were asked to recommend up to three nonprofits doing high-impact work across multiple countries/regions, and up to three nonprofits doing high-impact work in a specific country/region. Experts were asked to consider a range of nonprofits including those engaged in service, advocacy, litigation, research, education, and other areas. Nonprofits could focus on one or more of the following areas: peace and gender violence; domestic violence, battering, & marital rape; customary practices; and forced and early marriage. Specifically excluded from the survey were organizations working in human trafficking and reproductive health, rights, and violence against men within the definition of gender based violence.

As a relatively new organisation—established only in 2006—Sonke is proud to be mentioned alongside organisations that are recognized globally for their trail-blazing work and have inspired and informed our work:

• Global Fund for Women
• UN Women
• V-Day
• International Rescue Committee (IRC); Center for Women’s Global Leadership (CWGL)
• ICRW (International Center for Research on Women)
• Promundo
• Women’s Refugee Commission
• Equality Now
• Women for Women International
• Raising Voices
• Women Living Under Muslim Laws (WLUML)
• Women Against Violence Europe (WAVE).

We are especially delighted to share this acknowledgement with Instituto Promundo, with whom Sonke serves as co-chair of the Global MenEngage Alliance www.menengage.org. We congratulate all for their excellent work.

Sonke is grateful to both the the French National Consultative Commission on Human Rights and to Philanthopedia at GuideStar for their commitment to highlight work being done to end violence against women. We also thank our many community volunteers, national and international partner organisations and donors without whom it would have been impossible to do the work we do in communities across Africa to end men’s violence against women.

Contact information:

Sisonke Msimang
Sonke Board Chair
+27 82 610-6705

Dean Peacock
Executive Director
+27 72 461-7751

Desmond Lesejane
Deputy Director
+27 84 581-6306

Mbuyiselo Botha
Media and Government Relations Manager
+27 82 518-1177

About Sonke: Sonke Gender Justice Network was established in August 2006. With a full-time staff of 50 people working from offices in Johannesburg, Cape Town, and Agincourt in Mpumalanga, Sonke works across Africa to strengthen government, civil society and citizen capacity to support men and boys to take action to promote gender equality, prevent domestic and sexual violence and reduce the spread and impact of HIV and AIDS. View Sonke’s 2010-2011 annual report available at: http://www.genderjustice.org.za/index.php/component/docman/doc_download/100698-sonke-gender-justice-annual-report-2010-2011?Itemid=153

Bongi Zondi does Paralegal outreach for Justice and Women (JAW) in KwaZulu-Natal. She did training for Imvulamehlo CPO members on 29 and 30 November with the aim of monitoring courts on Tues 6 December. She told us that when they arrived at the local court, they were denied permission to monitor by the person in charge; he claimed that he hadn’t received the email requesting permission and so he had no authorisation to allow the monitors in. The JAW monitors hope that they will have more luck when they visit the police station in the next few days.

Nkhumi Tshivase of Thoyandou Victim Empowerment Programme in Limpopo province encountered a similar obstacle when they attempted to monitor the local hospital: officials claimed that they had not received any request and denied the monitors permission to do their work.

Ntutu Dubela is a part of the Stop the Bus Campaign that Rape Crisis Cape Town is conducting in the Western Cape. As a Xhosa speaker, she has been part of community education and outreach, as well as monitoring of police stations. She told us of her experiences when the campaign bus visited Gaansbaai:

• the local police station was helpful and met its requirements – copies of the Sexual Offences Act were available for the local community and they had a Victim Support room available for rape survivors but that there was no on-going counselling available for rape survivors in the community.
• There was a big difference between the police’s perceptions of the community and the reality within the community –the police captain said that there was no rape in the community, but Rape Crisis counsellors found five cases during their interactions with the women there.

Ntutu said that women of the community needed much more education about their rights, especially around marital rape and incest; these problems were often settled within families, according to cultural norms but that people needed to be educated about their legal rights. The monitors were also told by the community that women felt too intimidated to report rape cases to the police because in many instances, the police were friendly with the rapists and the victims didn’t believe that they would get any justice.

Rape Crisis monitors felt that the local community needed much more education in the form of on-going workshops about cultural issues and legal rights.

The Shukumisa campaign recognises that fair treatment of rape survivors has two requirements:

1. although South Africa has mostly good laws around sexual offences, official implementation isn’t always adequate
2. people need to be educated about their basic rights and responsibilities for these laws to be effective and useful