KRM 220 Section A ©WM Moagi
CHAPTER 4: SOUTH AFRICAN LEGISLATION SUPPORTING VICTIMS’
RIGHTS
• Law is comprehensive on paper, but if it isn’t enforced on ground level it is ineffective.
• Legislation aimed at protecting victims are effective if the appropriate mechanisms are
put in place to monitor the implementation of legislation (SA Constitution 1996)
▪ S7(2) - respect, promote and fulfil the rights in the Bill of Rights.
▪ S9(1) – dignity and equality – Carmichele v Minister of Safety.
▪ S12(1) – freedom from violence – protect citizens (s12(1)(c))
CARMICHELE CASE:
▪ Carmichele was attacked by a person awaiting trial (attempted murder & rape)
o Was released on bail and acting suspicious outside carmichele house
▪ Claimed her attack was a result of the police and justice systems being negligent
by allowing a dangerous man out knowing he had a history of violence.
▪ Carmichele sued the Minister of Safety (civil charges).
▪ HC: she must prove the state has obligation to protect her, state omitted to fulfil
obligation to protect her & prove as a result of omitting obligation she was
assaulted)
▪ SCA: No obligation on state to protect future victims as there is no legislation.
▪ CC: argued on s7(2) and s12(1)(c) & agreed with Carmichele (Positive duty),
the prosecutor can be arrested.
▪ This case illustrates the operation of these duties in relation to police and
prosecutorial responses to victims (and potential victims) of crime.
Integrated Victim Empowerment Policy (VEP)
• This policy focuses on service delivery to victims of crime.
• It emphasises that victimisation amounts to a human rights violation.
• It aims to move the focus from the state that focuses on a guilty finding of the
offender, to the importance of services for victims, and it sets standards for the
provision of victim empowerment services.
• Central to the VEP is the Victim’s Charter. 7 rights victims have:
▪ The right to be treated with fairness and respect for your dignity and privacy.
▪ The right to offer information, The right to receive information.
, KRM 220 Section A ©WM Moagi
▪ The right to protection.
▪ The right to assistance.
▪ The right to compensation.
▪ The right to restitution.
THE DOMESTIC VIOLENCE ACT (ACT 116 OF 1998)
• The Act came into force in December 1999.
• This Act is in line with international conventions and policies.
• It includes Physical abuse, Sexual abuse, Emotional, verbal, and psychological abuse,
Intimidation, Harassment, Stalking, Damage to property, Entry into the complainant`s
residence without consent (parties do not share) & Controlling or abusive behaviour
towards a complainant (harms to the safety, health, or wellbeing).
A domestic relationship (relationship between a complainant and a respondent):
› They are or were married to each other.
› They live or lived together in a relationship in the nature of marriage/ cohabitant.
› They are/were the parents of a child.
› They are family members related by consanguinity, affinity, or adoption.
› They are or were in an engagement, dating or customary relationship
› They share or recently shared the same residence.
Obtaining a protection order
• It is a civil order (it doesn’t criminalize for the action but a crime for failure of order).
• The Act places duties on members of the SAPS to render assistance to the victim:
▪ Help in finding suitable shelter
▪ Providing the complainant with information about his/her ACT rights
▪ Assist the complainant with obtaining medical attention.
• Failure to comply with the duties constitutes must be reported to the IPID.
Problems with regards to implementation
• Some police officials are also reluctant to arrest people breaching the order.
• Police members are not informing victims that they can lay criminal charges.
• Corruption (police member knows the offender). Statements have erratic information.
• Myths (reasons why women & husbands apply for protection orders).
CHAPTER 4: SOUTH AFRICAN LEGISLATION SUPPORTING VICTIMS’
RIGHTS
• Law is comprehensive on paper, but if it isn’t enforced on ground level it is ineffective.
• Legislation aimed at protecting victims are effective if the appropriate mechanisms are
put in place to monitor the implementation of legislation (SA Constitution 1996)
▪ S7(2) - respect, promote and fulfil the rights in the Bill of Rights.
▪ S9(1) – dignity and equality – Carmichele v Minister of Safety.
▪ S12(1) – freedom from violence – protect citizens (s12(1)(c))
CARMICHELE CASE:
▪ Carmichele was attacked by a person awaiting trial (attempted murder & rape)
o Was released on bail and acting suspicious outside carmichele house
▪ Claimed her attack was a result of the police and justice systems being negligent
by allowing a dangerous man out knowing he had a history of violence.
▪ Carmichele sued the Minister of Safety (civil charges).
▪ HC: she must prove the state has obligation to protect her, state omitted to fulfil
obligation to protect her & prove as a result of omitting obligation she was
assaulted)
▪ SCA: No obligation on state to protect future victims as there is no legislation.
▪ CC: argued on s7(2) and s12(1)(c) & agreed with Carmichele (Positive duty),
the prosecutor can be arrested.
▪ This case illustrates the operation of these duties in relation to police and
prosecutorial responses to victims (and potential victims) of crime.
Integrated Victim Empowerment Policy (VEP)
• This policy focuses on service delivery to victims of crime.
• It emphasises that victimisation amounts to a human rights violation.
• It aims to move the focus from the state that focuses on a guilty finding of the
offender, to the importance of services for victims, and it sets standards for the
provision of victim empowerment services.
• Central to the VEP is the Victim’s Charter. 7 rights victims have:
▪ The right to be treated with fairness and respect for your dignity and privacy.
▪ The right to offer information, The right to receive information.
, KRM 220 Section A ©WM Moagi
▪ The right to protection.
▪ The right to assistance.
▪ The right to compensation.
▪ The right to restitution.
THE DOMESTIC VIOLENCE ACT (ACT 116 OF 1998)
• The Act came into force in December 1999.
• This Act is in line with international conventions and policies.
• It includes Physical abuse, Sexual abuse, Emotional, verbal, and psychological abuse,
Intimidation, Harassment, Stalking, Damage to property, Entry into the complainant`s
residence without consent (parties do not share) & Controlling or abusive behaviour
towards a complainant (harms to the safety, health, or wellbeing).
A domestic relationship (relationship between a complainant and a respondent):
› They are or were married to each other.
› They live or lived together in a relationship in the nature of marriage/ cohabitant.
› They are/were the parents of a child.
› They are family members related by consanguinity, affinity, or adoption.
› They are or were in an engagement, dating or customary relationship
› They share or recently shared the same residence.
Obtaining a protection order
• It is a civil order (it doesn’t criminalize for the action but a crime for failure of order).
• The Act places duties on members of the SAPS to render assistance to the victim:
▪ Help in finding suitable shelter
▪ Providing the complainant with information about his/her ACT rights
▪ Assist the complainant with obtaining medical attention.
• Failure to comply with the duties constitutes must be reported to the IPID.
Problems with regards to implementation
• Some police officials are also reluctant to arrest people breaching the order.
• Police members are not informing victims that they can lay criminal charges.
• Corruption (police member knows the offender). Statements have erratic information.
• Myths (reasons why women & husbands apply for protection orders).
