Through progressive legislation South Africa has shown commitment to ending violence against women. In 1998, the government adopted the Domestic Violence Act 116 which defines domestic violence as physical, sexual, emotional, verbal and economic abuse. Almost ten years later, after much lobbying by feminist academics, women’s and legal advocacy organisations, public health professionals and otheres the Sexual Offences Act of 2007 came into operation. The act includes protecting victims from secondary victimisation, strengthening delivery of services to complainants of sexual violence and improving investigations. But despite the progress made legislatively violence against women, the police, the judiciary and many people in South Africa consider violence as a minor crime, as something that woman simply have to endure. Women rarely report violence for these reasons and if they do they face mistreated by the police and in the courtroom.
Unfortunately, It is unlikely that this disregard for the seriousness of violence against women will change in the near future with the recent appointment of Mogoeng Mogoengas South Africa’s Chief Justice by President Jacob Zuma. Judge Mogoeng has a very questionable court history regarding gender-based violence. In 2001, he reduced a 2-year prison sentence for a man who assaulted his girlfriend to a R2000 ($235) fine on the grounds that the man was a first time offender, that he was “provoked” by the woman and that she did not sustain any serious injuries. In 2004, he reduced a ten year prison sentence for marital rape to 5 years on the ground that; “the nature of the complaint and appellant´s relationship is such that it renders their intercourse incapable of being legally categorised as rape” even though marital rape has been recognized as illegal in South Africa since 1993. In 2007, he suspended a 2-year prison sentence for sexual assault on the grounds that the perpetrator was sexually aroused and “overwhelmed” by his desires. Judge Mogoeng argued that because of the former intimate relationship between the perpetrator and victim it was less traumatic for the woman than if a stranger had raped her. The victim of rape and the rapist were separated. As Chief Justice, Mogoeng is expected to uphold and protect the constitution, which includes protecting women from violence, but instead he is reinforcing the idea that violence against women is a part of normal life for women.
While working with a women’s group in Kayamandi, a township outside of Stellenbosch, I heard first hand the negative consequences of attitudes like Chief Justice Mogoeng. While speaking with women from the group, almost all of the 40 of them had experienced abuse or knew someone that had been abused by their partner. When I asked them if they reported the abuse, they responded there is not much point as the police treat domestic violence as a private matter and will therefore not intervene. The woman said, if the police do arrest the perpetrator, and take him in, it is only over the weekend to sober him up. Monday when he is released he will come home even angrier. At the Saartjie Baartman Centre in Mannenberg, Cape Town, the counsellors say that it is not unusual that women encounter discrimination by the police. They say that many police officers take the abusers side and imply that the women did something to deserve the abuse. Officers refuse to take women’s statement and encourage them to go home and sort out the argument with their husbands. What worries the counsellors most is that gender based violence is seen as the norm in the community. They worry that it will perpetuate as children express at the shelter that they aspire to become “gangsters like their father.” The only way they know to deal conflicts is through violence.
The appointment of Judge Mogoeng is not likely to change this acceptance of violence against women amongst police officers and judges. It is a clear demonstration also that the state is not only neglecting its responsibility to uphold women’s rights through the implementation of South Africa’s law. It is a message to perpetrators that they can act with impunity.
Karin Björnberg is originally from Sweden but has been living in South Africa since 2008. There she is completing her MA in International Studies; International Political Economy and Conflict Dynamic at the University of Stellenbosch. Her Master’s thesis called”Rethinking Human Security: Taking into Consideration Gender Based Violence” is an exploration of the impact of GBV on human insecurity in South Africa.