South Africa duly recognises its obligation to ensure that the right to the security of the person is protected. This right is enshrined in section 12 of the Constitution which provides that “everyone has the right to freedom and security of the person” and includes the right to be free from all forms of violence, from both public and private sources. It further prohibits inhuman or degrading treatment and punishment.

The Domestic Violence Act of 1998 (the Act) was enacted in response to the concerning statistics on domestic violence in the country. According to the South African Police Service (SAPS) National Crime Statistics report, almost 60 000 sexual offences and 42 596 instances of rape were reported and recorded during the 2015/16 period. According to the Institute of Security Studies, this type of crime often goes unreported and whilst there has been a notable 3.2% decrease since the previous period, the decrease could be indicative of fewer people reporting sexual offences. The Act was regarded as a positive step towards addressing violence against vulnerable groups such as women and children and providing a legal framework for their protection. The Act is also intended to uphold South Africa’s international obligation to bring an end to violence against women and children.

As is a common theme when it comes to this conversation, the change cannot come by the work of women alone. Society as a whole must actively engage to allow progress. In the same breath, society cannot eradicate gender-based violence without the assistance of the State and yet there are disturbing facts illuminate the poor implementation of the mandate to serve and protect on the part of the SAPS.

The landmark case in this regard is Carmichele v The Minister for Safety and Security and The Minister of Justice and Constitutional Development. In this matter, the Constitutional Court (the Court) was asked to consider the State’s constitutional duty to safeguard the rights of women. The applicant sued the Ministers for damages resulting from a vicious attack on her by a man who was awaiting trial and had been released without bail. This, despite the fact that he had a history of sexual violence and was awaiting trial for attempted rape. The High Court and Supreme Court of Appeal both held that that neither the police nor the prosecution had a duty of care towards her and could not be held liable for the incurred damages. The Court however, found that the State is obliged by both the Constitution and international law to prevent gender-based discrimination and protect the freedom and security of women. The Court emphasised the need for women to be free from the threat of sexual violence.  Furthermore, the Court held that prosecutors who are responsible for placing relevant information before a court during bail proceedings, are liable to be held legally responsible for negligently failing to fulfil that duty.

The North Gauteng High Court recently echoed and confirmed the sentiments of the Carmichele case in DW v The Minister of Police and the National Prosecuting Authority. In this matter, the plaintiff was brutally attacked (stabbed) and raped by a man who was out on R1 000 bail, despite multiple convictions – including a number of rape convictions to his name. She argued that the relevant prosecutors and investigating officers failed to discharge their constitutional mandate and keep the perpetrator behind bars because he was an evident threat to the community. His release resulted in her assault. It is necessary to note the severity of the plaintiff’s injuries and that she suffered from depression, as well as residual brain trauma affecting her cognitive functions.

A jarring fact made clear by the latter case is that the SAPS are not only regularly at odds with their constitutional mandate in ways similar to the above, but that they are sometimes the perpetrators of violent crimes against women who for whatever reason, find themselves in the custody or care of police officials. The decision makes ample reference to sexual and other physical assault in police custody. It is a great cause for concern that there are times when women in police custody cannot be deemed to be safe.

Another contentious state of affairs is that cases of domestic violence are recorded as cases of assault. The SAPS do not release details about the number of assaults involving intimate partners despite the fact that they are required to record cases of domestic violence in a register at police stations. In previous years, many police stations have been recorded as being non-compliant with the Act in terms of addressing victims of domestic violence. However, the SAPS Annual Report 2015/16 indicated that all 1140 police stations nationwide are rendering victim-friendly service to victims of rape, sexual offences and domestic violence/abuse. This is indeed a welcome development and is lauded as a pivotal step in the battle against gender-based violence.

The high number of sexual offences reported signifies a need for assistance to the concerned victims. A change in the attitude of police officials towards these victims is insufficient. In the Western Cape, there are only 13 recognised women’s shelters. According to the available data, these are not capable of assisting all the victims of gender-based violence. In terms of proactive steps, the government rolled out the Thuthuzela Care Centres as part of the country’s anti-rape strategy and are one-stop facilities aimed at the reduction of secondary trauma for victims and improving conviction rates by fast tracking the prosecution process. Victims are offered all the necessary services from reporting and medical assistance to counseling in one location. These were touted as revolutionary but as of the end of September, the 39 centres will be reduced to 14, due to international donor funding cuts.

Resource-wise, State intervention will likely go a long way towards addressing the plight of those who find themselves in such circumstances. As this year’s 16 Days campaign commences, it is important that activism moves beyond mere lip service to the statutory provisions in order to protect the most vulnerable within South Africa’s society.

By Rebecca Sibanda: Legal Assistant, Centre for Constitutional Rights