UPR Sexual Rights Database

National Report Annex 1:
The Foreword to the present Report signed by the President confirms the primacy of the ratification of these Covenants by the South African government.

Undoubtedly, and by constitutional imperatives, South Africa places a premium on economic, social and cultural rights and hence the ratification of the ICESCR and its Optional Protocol is of high importance. The internal government processes are advancing and it is envisaged that with the collaboration of all government actors, including oversight parliamentary committees, the South African government should be in a position to ratify the ICESCR and its Optional Protocol as soon as possible.

UN Compilation:
Para 2) UNICEF noted that South Africa had not ratified ICESCR, although having signed it in 1994. The Special Rapporteur on the right to food recommended that the Government ratify that Convention.

Stakeholder Summary:
Para 15) International Commission of Jurists (ICJ) recommended that South Africa become a party to ICESCR; OP-CAT; CED and ICRMW; and that it sign, with a view to ratification, the third Optional Protocol to CRC.

Para 16) Amnesty International (AI) the Community Law Centre (CLC) and the Institute for Human Rights and Business (IHRB) 26 recommended ratification of ICESCR and its Optional Protocol.

National Report Annex:
PARTIAL IMPLEMENTATION

The Domestic Violence Act, 1998 (Act 116 of 1998 provides sanctions against domestic violence.

Key law reforms undertaken to address gender and sexual violence:
• Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007;
• Protection from Harassment Act, 2011 (Act 17 of 2011);
• Prevention and Combating of Trafficking in Persons Act, 2013; and
• Prohibition and Prevention of Torture Act, 2013.
The conviction rate relating to sexual offences in 2014/15 stood at 69%; and in the first quarter 71.1% conviction rate.

National Report Annex:
FULL IMPLEMENTATION

In order to improve handling of rape cases by Police the SAPS makes use of specialized investigative units called Family Violence, Child Protection and Sexual Offences Units (FCS). FCS investigators receive specialised training in dealing with sexual offences investigations and cases involving children addition to training as investigators. SAPS has developed the Human Rights in Policing Learning Programmes and has been conducting training on same from 1998 to all law enforcement officials.

The SAPS has developed National Instructions on the Domestic Violence Act and the Criminal Law (Sexual Offences and Related Matters) Amendment Act in order to provide clear policy directives for the police in support of members to improve service delivery to victims. The NPA (facilitated by SOCA), in line with Act 32 of 2007 also developed directives for prosecutors on how best to deal with sexual offences in the criminal justice system.

Capacity building and training of the SAPS members is an on-going process commencing in basic training. The SAPS engages in public awareness and education campaigns with the purpose of creating a greater awareness of the relevant legislation and government‘s commitment to eradicating violence.

A number of new policy frameworks were also introduced and implemented, including the Child Justice National Policy Framework, the Restorative Justice National Policy Framework (including forming linkages with traditional justice), the Social Crime Prevention Strategy and the Diversion Accreditation Framework. Government has also adopted a Plan of Action to combat violence against women and children.

Nationally, there are 176 established FCS units attached to all police clusters within SAPS. This has resulted in lengthy convictions, achieved through the dedicated work of detectives and prosecutors.

Resourcing and establishing victim-friendly rooms at police service points are on-going. There are currently more than 900 Victim Friendly Facilities rendering victim support services in place and it is envisaged that this will be rolled out to all police stations.

South Africa has dedicated sexual offences courts. These dedicated services use intermediaries, audio-visual equipment and specialised training, among other measures. The NPA’s Sexual Offences and Community Affairs (SOCA) Unit developed comprehensive training manuals which are updated annually to be in line with the latest developments in law for specialist prosecutors and also an integrated training manual for stakeholders at our TCCs.

A National Task Team (“NTT”) was established by the Department of Justice and Constitutional Development (DoJ&CD) to counter the continued discrimination based on sexual orientation and gender identity against members of the LGBTI community. The DoJ&CD launched the National LGBTI Programme and issued terms of reference for a National Intervention Strategy to address violence based on gender and sexual orientation. The DoJ&CD also issued terms of reference for the rapid response team to fast track cases in the criminal justice system in a bid to endorse the government’s commitment to combat discrimination against LGBTI persons.
When the NTT was re-established in May 2013, the DoJ&CD together with representatives from National Human Rights Institutions and civil society organisations set out to achieve a number of tasks. These included, amongst others, to develop a National Intervention Strategy to respond to, and prevent, gender and sexual orientation-based violent crimes perpetrated against LGBTI persons and to develop an Inter-sectoral Implementation Plan. The NTT undertook to strengthen government’s ability to respond to LGBTI needs and to strengthen the capacity of CSOs to deliver related services.

The draft NAP and the accompanying consultations around the country have also raised awareness.

Attempts have also been made to increase awareness of the Equality Courts, which hear cases of discrimination.

The National Task Team is driven and guided by the Constitution which promises equality and dignity on the basis of sexual orientation.

An inter-sectoral communication plan outlining a number of public education and communication initiatives has also been developed. This seeks to popularise inter-sectorial interventions aimed at addressing the violence committed against LGBTI persons, to promote partnerships amongst government, civil society, business and the media in the fight against gender based violence and to encourage communities to report these crimes. A television advert was made to convey a national message to South Africans to promote equality, dignity and freedom protected under the Constitution. The television advert was first flighted during the launch of the LGBTI Programme in April 2014. With SABC, 13 million people were reached through the LGBTI TV advert, a further 10 million people through eTV and community radio reached a further 6.1 million people.

The DoJ&CD has developed the Prevention and Combating of Hate Crimes and Hate Speech Bill. Cabinet in October 2016 approved the publication for public comment of the Bill. The Bill creates the offences of hate crimes and hate speech and seeks to put in place measures to prevent and combat these offences. A hate crime is committed if a person commits any recognised offence, that is a common law or statutory offence (referred to as the “base crime or offence”) and the commission of that offence is motivated by unlawful bias, prejudice or intolerance.

The prejudice, bias or intolerance towards the victim of the hate crime would be because of one or more of the following characteristics, or perceived characteristics, of the victim or the victim’s next of kin: Race, gender, sex, ethnic or social origin, colour, sexual orientation, religion, belief, culture, language, birth, HIV status, nationality, gender identity, intersex, albinism and occupation or trade.

National Report Annex 1:
The right to equal protection and benefit of the law is constitutionally guaranteed in South Africa. Discrimination on the ground of sexual orientation is prohibited. Bearing in mind the recent spate of violence visited upon LGBTI persons, government has established a National Task Team comprising representatives from government and civil society with a view to develop administrative and legislative measures to ensure maximum protection, adequate remedies and combating impunity. Meanwhile, our Courts have set a precedent by delivering a seminal judgement, by convicting and sentencing perpetrators of this emerging violence and intolerance against LGBTI persons.

As part of the Government's international obligations under international human rights law, South Africa similarly advocates for the principle of non-discrimination under any grounds, including sexual orientation at every opportunity in the multilateral and regional fora where these matters are discussed. The Department through the South African Permanent Mission to the United Nations in Geneva, has since the adoption of the South African initiated, United Nations Human Rights Council Resolution 17/19, entitled "Human Rights, Sexual Orientation and Gender Identity" been engaged with all stakeholders and providing strategic direction on this initiative. These consultations have been inclusive, transparent and aimed at depoliticizing the issue of sexual orientation in the context of the work of the Council, particularly taking into account the positions from other delegations that did not support the resolutions. Additionally, following the release of the report as well as the announcement of the names of the Panelists ahead of the March Session, there has been lobby action undertaken in Geneva as well as Pretoria, particularly with countries who share in the vision of the Government through this initiative. A High-Level Segment during the 19th Session of the Human Rights Council was held on 27 February 2012. The 19th Session of the HRC also convened a High-Level Panel on this issue.

UN Compilation:
Para 20) CEDAW noted the prohibition, in the Constitution, of discrimination based on the sexual orientation of individuals. However, it expressed concern about reported murder and sexual offences committed against women on account of their sexual orientation. It urged effective protection from violence and discrimination against women based on their sexual orientation, continued sensitization campaign and training for law enforcement officials and other relevant actors