The 2020 Women’s Parliament has straddled the three spheres of government under one roof – the legislature, executive and the judiciary.

The judiciary was represented by the Acting Chief Justice, Justice Sisi Khampepe. The judiciary has sometimes been criticised for its insensitivity in dealing with gender-based violence (GBV) cases, particularly by victims.

Justice Khampepe’s reflections on the role of the judiciary addressed some of those concerns head-on. In her view, it is necessary to deliberate on the legal principles, terminology and certain legal policies to bring about effective and appropriate responses to both the perpetrators and the victims of these crimes.

She reflected on three areas: the appropriateness of law; practices; and approaches often taken by judges in these cases, which requires an urgent attention from the judiciary and lawmakers. “Law-makers must ensure that laws promote gender equality as enshrined in our Constitution. This to ensure that legal principles applied in courts are not based on entrenched patriarchal norms and principles.”

She cited marital rape as a case in point and noted that recently the Constitutional Court has “viewed marital rape, not as a sexual rape, but an act of asserting power imbalances, of domination that entrenches the patriarchal system prevalent in society”. This is a step in the right direction, she said.

She further maintained that the judiciary should in its practices recognise women as a vulnerable group and should therefore put the interests of women above that of the perpetrators of these crimes, as this is currently not the case.

In approaching GBV cases, the judiciary must adopt norms that will protect and respect the victim. She suggested that such cases must be held in camera, and the victims and witnesses must be anonymised. In addition, cross-examinations must not re-traumatise and re-victimise, but should rather give victims access to justice in a trauma-free manner.

The training of the judiciary in these aspects of the law, practices and approaches must be accelerated if the victims of these crimes are to be accorded the justice they deserve.

In a recorded message, President Cyril Ramaphosa condemned the prevalence of GBV in South African society, saying the country is drenched in the tears of the victims of gender-based violence. He promised that the state will do all it can to ensure that those found guilty face the full might of the law. He was pleased to announce that much has been done since the inception of the emergency response plan. “We have now provided greater support and improved the capacity of police to deal with these crimes.”

In addition, some laws, such as Sexual and Domestic Offences Acts, have been reformed in a bid to protect the constitutional rights of women. There is now also a policy focus to improve the activity of women in the economy, the President continued. “Government has introduced new public procurement regulations that will allocate a certain percentage to women enterprises. These are not only social, but economic policies meant to alleviate women from the triple challenges of poverty, unemployment and inequality often associated with gender-based violence.” 

Abel Mputing

28 August 2020