wo of the so-called "GBV Acts" recently came into opera- The SORMA Amendment Act also broadens the

oadens the definition of the

tion. These Gender-Based Violence Acts or "GBV Acts" refer offence of incest. Previously, section 12 prohibited the unlawful
to three separate Acts, namely the Criminal and Related and intentional engagement in an act of consensual sexual pene-
Matters Amendment Act 12 of 2021, the Criminal Law (Sexual tration between persons who may not lawfully marry each other
Offences and Related Matters) Amendment Act Amendment Act 13 on account of consanguinity, affinity or an adoptive relationship.
of 2021 and the Domestic Violence Amendment Act 14 of 2021. The offence has now been broadened to include the unlawful and
intentional engagement in an act of sexual violation between per-
The GBV Acts are legislative attempts to address the scourge of sons who may not lawfully marry each other on account of con-
gender-based violence in South Africa and aim to protect vulnera- sanguinity, affinity or an adoptive relationship if one of the persons
ble groups more effectively, specifically within the criminal justice is a child and the nature of the act was reprehensible for the adult
system. The legislation gives effect to the government's commit- person to have acted in that manner under the circumstances. The
ment, as set out by the President of South Africa, Mr Cyril term "reprehensible" is not defined and will be guided by the dic-
Ramaphosa, during his State of the Nation Address of 2022, to tionary meaning of the term, namely, behaviour that evokes severe
intensify the fight against gender-based violence and femicide by criticism, is unacceptable or despicable. The challenge is, however,
strengthening the criminal justice system, to promote accountabil- that the term must be interpreted objectively, and not according to
ity across the state and to support survivors. It is envisaged that the the subjective view of the complainant. The objectivity test means
legislation will enhance the successful prosecution of perpetrators, that the test of the reasonable person will be applied to determine
protect survivors more effectively and combat the prevalence of whether or not the particular conduct of the perpetrator can be
gender-based violence in society. regarded as reprehensible. In other words, a court will consider
what the reasonable person (or average member of society) will
The Criminal Law (Sexual Offences and Related Matters) consider as reprehensible (unacceptable or despicable) before the
Amendment Act Amendment Act 13 of 2021 ("the SORMA accused may be convicted. It may be difficult for a police official to
Amendment Act") came into operation on 31 July 2022. One of the determine such behaviour. It is, therefore, advisable that police
primary purposes of the SORMA Amendment Act is to strengthen officials involved in the investigation of such allegations consult the
the criminal law by creating several new sexual offences. public prosecutor in advance to obtain guidance on whether spe-
cific conduct should be viewed as "reprehensible". The SORMA
The SORMA Amendment Act inserts section 14A which provides for Amendment Act further includes section 56(4) to provide that a
a new offence, namely sexual intimidation. The offence is commit- perpetrator cannot be convicted of incest if he or she was younger
ted when a perpetrator unlawfully and intentionally utters or con- than 18 years at the time when the sexual act was first committed
veys a threat to a complainant that inspires a reasonable belief of and the other person exercised power or authority over the perpe-
imminent harm in the complainant that a sexual offence will be trator or there was a relationship of trust between the parties.
committed against the complainant, a family member of the com-
plainant or any other person who is in a close relationship with the Section 54 previously placed a legal duty on persons to report
complainant. The offence will, for example, be committed when knowledge or reasonable suspicion that a sexual offence has been
robbers threaten the husband during a house robbery that his wife committed against a child or mentally disabled person. This meant
and daughter will be raped. Due to the insertion of this offence, that if a person (such as a parent, teacher or neighbour) knew that
section 5(2) of the Criminal Law (Sexual Offences and Related a child was the victim of a sexual offence, the person was com-
Matters) Amendment Act 32 of 2007 was repealed. Section 5(2) pelled to report such information to a police official. Failure to do
previously extended sexual assault to circumstances where the per- so constituted an offence and the person could be sentenced to
petrator unlawfully and intentionally inspired the belief in a com- incarceration for a period not exceeding five years upon conviction
plainant that he or she would be sexually violated. The offence of of the offence.
sexual intimidation is wider (not limited to a threat against the
complainant only) and includes a threat of imminent harm that any The SORMA Amendment Act has expanded the legal duty on any
sexual offence (not limited to a sexual violation) may be committed person to report knowledge, reasonable belief or suspicion to a
by the perpetrator. police official that a sexual offence has been committed against a
vulnerable person. If the person fails to do so, he or she will be the victim) or offences in terms of the Prevention and Combating of
guilty of an offence, and liable to the same penalty as before. The Trafficking in Persons Act 7 of 2013, if the offence was committed
expansion of the legal duty is evidence that the legislature recog- for sexual purposes and offences which relate to child pornography
nises that certain groups of persons are particularly vulnerable to (such as the possession, creation and distribution thereof) in terms
becoming victims of sexual offences and therefore deserving of of the Films and Publications Act 65 of 1996. The Cybercrimes Act
special protection. 19 of 2020 inserts offences relating to child pornography into the
Criminal Law (Sexual Offences and Related Matters) Amendment
"A person who is vulnerable" is defined in the SORMA Amendment Act 32 of 2007. The decision to include such offences in the sexual
Act as follows: offences legislation has removed any previous doubt about
(a) child or a person who is mentally disabled; whether or not offences relating to child pornography are sexual
(b) female under the age of 25 years who - offences.
(i) receives tuition at a higher education college, higher edu-
cation institution or university college as defined in section 1 The Criminal and Related Matters Amendment Act 12 of 2021 ("the
of the Higher Education Act 101 of 1997; Act") came into operation on 5 August 2022. Unlike the SORMA
(ii) receives vocational training at any training institute, other Amendment Act and the Domestic Violence Amendment Act which
than the institutions referred to in subparagraph (i), or as part focus in particular on matters relating to domestic violence and
of their employment; or sexual offences, the implications of Act 12 of 2021 are more gener-
(iii) lives in a building, structure or facility used primarily as a al and wider. This Act amends other legislation, including the
residence for any of the persons referred to in subparagraphs Criminal Procedure Act 51 of 1977 (“the CPA”) and the Criminal Law
(i) and (ii); Amendment Act 105 of 1997 (which requires that minimum sen-
(c) person who is being cared for or sheltered in a facility that tences be imposed upon conviction of certain serious offences) to
provides services to victims of crime; strengthen the efforts to assist victims of gender-based violence.
(d) person with a physical, intellectual or sensory disability and
who - The implications of the Act relate to the following aspects:
(i) receives community-based care and support services,
other than from a family member for; The Act authorises the use of intermediaries to enable vulnerable
(ii) lives in a building, structure or facility used primarily as a witnesses, such as children, older persons or persons who suffer
residence for; or from a physical, physiological or emotional condition, to testify in
(iii) is cared for in a facility providing 24-hour care to persons court through an intermediary in proceedings other than criminal
with physical, intellectual or sensory disabilities; or proceedings. In the past, many vulnerable witnesses felt intimidat-
(e) person who is 60 years of age or older and who - ed and overwhelmed when they had to testify in court. This result-
(i) receives community-based care and support services, ed in witnesses feeling that their voices were not heard during
other than from a family member for; court proceedings or that they had been treated unfairly. This has
(ii) lives in a building, structure or facility used primarily as a deterred witnesses and undermined public confidence in the legal
residence for; or system. The effect of the amendment is that these witnesses will
(iii) is cared for in a facility providing 24-hour care to, such not have to be physically present in court to testify, but may do so
persons." with the help of an intermediary from another informal venue. The
witness will be more comfortable and does not have to face any
The SORMA Amendment Act furthermore provides that a person person whose presence may upset him or her.
who reports such reasonable belief or suspicion in good faith can-
not be held liable in civil or criminal proceedings for the report that
he or she has made. This means that if a person, for example, in
good faith reports to the police that he or she suspects that a sex- In terms of section 40(1)(b) of the CPA, a peace officer may arrest
ual offence has been committed against a particular child, but it is any person whom he or she reasonably suspects of having commit-
later discovered that no sexual offence was committed against the ted an offence referred to in Schedule 1 of the CPA. Schedule 1
child, the person cannot be held liable by the alleged perpetrator in includes a reference to "assault when a dangerous wound is inflict-
civil proceedings. ed". This terminology has created confusion since there is no such
crime recognised in our law. While assault with the intention to
The ambit of the National Register of Sex Offenders (which is cause grievous bodily harm may involve the infliction of a danger-
administered by the Department of Justice and Constitutional ous wound, this is not always the case. Assault with the intention to
Development) has also been addressed by the SORMA Amendment cause grievous bodily harm may also be committed without the vic-
Act. Previously, only the particulars of persons who have been con- tim having to suffer the infliction of a dangerous wound, for exam-
victed of a sexual offence against a child or disabled person were ple, if the jaw of a person has been broken.
included in the National Register of Sex Offenders.
Therefore, if an arrest has been made and the peace officer relies
The National Register will now include the particulars of any person on section 40(1)(b) of the CPA, the arrest statement must be clear
who has been convicted after the commencement of the SORMA on the justification of the arrest, namely that a dangerous wound
Amendment Act, of any sexual offence (irrespective of the age of was inflicted. The arresting officer has to explain the circumstances
(namely that a dangerous wound was inflicted with a clear  A prosecutor has to provide reasons if a bail application is not
description of the nature of the wound) to justify the lawfulness of opposed in certain cases involving domestic violence. This
the arrest. A mere reference to the crime of assault with the inten- means that a bail application of the accused should, in princi-
tion to cause grievous bodily harm as the reason for the arrest ple, be opposed, unless the prosecutor is able to motivate the
means that the arrest is prima facie unlawful since that crime is not failure to do so.
included in Schedule 1.  The onus is placed on the accused to present evidence to satis-
fy the court that the interests of justice permit his or her release
The Act has expanded the ambit of "assault when a dangerous if the case involves a crime committed in a domestic relation-
wound is inflicted" in Schedule 1 to also include assault - ship or involves any crime relating to the contravention of any
 involving the infliction of grievous bodily harm; protection order or other order issued to protect a person from
 where a person is threatened with grievous bodily harm; or the accused. In order words, the onus placed on an accused to
 with a firearm or dangerous weapon (namely, any object, other justify his or her release in respect of offences referred to in
than a firearm, capable of causing death or inflicting serious Schedule 5 and 6 of the Criminal Procedure Act 51 of 1977, has
bodily harm if used for an unlawful purpose as defined in the now been extended to crimes involving domestic violence and
Dangerous Weapons Act 15 of 2013). the contravention of court orders to also protect a person from
the accused.
The expanded definition now affords wider powers to a peace offi-  In the past, the accused was obliged to disclose certain infor-
cer to arrest a person without a warrant in terms of section 40(1)(b) mation, such as his or her previous convictions and pending
of the CPA. However, it is still important that the reason for the cases, to the court during a bail application. The Act expands
arrest be clearly stated in the arrest statement to justify the arrest. the obligation by requiring that the accused must also inform
the court of any protection order or similar a court issued
against him or her to protect the person against whom the
The Act imposes more stringent requirements to consider bail offence in question was allegedly committed and whether that
applications if the case involves an offence relating to domestic vio- order is still in force. If the accused fails or refuses to disclose
lence or relates to the contravention of an order or protection the information, he or she is guilty of an offence.
order (albeit in terms of the Domestic Violence Act 116 of 1998 or  Additional grounds for the cancellation of bail have been insert-
the Protection from Harassment Act 17 of 2011 or any other law) ed. These include the contravention of a protection order or if
that criminalises the contravention of a court order to protect a the accused is threatening the safety of the victim of the alleged
person from the accused. These are: crime while he or she has been released on bail.
 No police bail or prosecutorial bail may be considered in  The victim is also afforded a platform to participate in proceed-
respect of offences of this nature. For example, a husband has ings to consider whether the perpetrator should be released on
allegedly slapped his wife and is subsequently arrested by the parole and correctional supervision. The Act places a high pre-
police. Previously, the accused could be released on police bail, mium on the participation of the victim during various stages of
since the case involved assault, a crime for which the accused the criminal justice system. This is a valuable means to empow-
could be released on police bail. The Act no longer authorises a er victims to participate in matters that affect their safety and
police official to consider bail in respect of any crime in circum- well-being.
stances where the victim and accused are in a domestic rela-
tionship or if the crime involves the contravention of any pro-
tection order or other order issued to protect a person from the The Act provides for severe minimum sentences to be imposed if an
accused. The consequences of the amendment are that an accused is convicted of murder or attempted murder where the vic-
accused will have to remain in police custody until his or her tim is or was in a domestic relationship with the accused. The same
first appearance in court, during which he or she may apply to applies in the case of rape, where the victim was a child (a person
be released from custody. younger than 18 years), an older person, a person with a disability,
 Emphasis is placed on the interests of the victim before a deci- or is or was in a domestic relationship with the accused. The impo-
sion is taken to release an accused on bail. A court must con- sition of minimum sentences aims to protect vulnerable groups
sider the view on the safety of any victim against whom the against violent crimes.
alleged offence has been committed. The court also has to con-
sider whether the accused has made threats of violence against There are many reported instances where the criminal justice sys-
the victim or any other person and the disposition of the tem has failed to protect victims of gender-based violence. In some
accused to commit offences in a domestic relationship before tragic incidents, victims continued to suffer horrific ordeals or even
determining whether the interests of justice permit the release paid with their lives after they had requested assistance from the
of the accused. police and courts. Both Acts promote the commitment of the
 If a court authorises the release of an accused on bail in cases government to prevent the re-occurrence of these incidents. It con-
where the victim has not previously obtained a protection order veys the message that gender-based violence will not be tolerated
against the accused, the court must hold an enquiry to consid- and perpetrators will be dealt with decisively to ensure that victims
er the issuing of a protection order against the accused, as if the are afforded the protection that they deserve.
complainant has applied for such an order.