Section 6. Discrimination and Societal Abuses
Rape and Domestic Violence: The law criminalizes domestic violence and rape of men or women, including spousal rape, but the government did not effectively enforce the law. The minimum sentence for conviction of rape is 10 years’ imprisonment. Under certain circumstances, such as second or third offenses, multiple rapes, gang rapes, or the rape of a minor or a person with disabilities, conviction requires a minimum sentence of life imprisonment, unless substantial and compelling circumstances exist to justify a lesser sentence. Perpetrators with previous rape convictions and perpetrators aware of being HIV positive at the time of the rape also face a minimum sentence of life imprisonment, unless substantial and compelling circumstances exist to justify a lesser sentence.
In most cases of rape and domestic violence, attackers were acquaintances or family members of the survivor that, together with societal attitudes, contributed to a reluctance to press charges. NGOs stated that cases were underreported, especially in rural communities, due to stigma, unfair treatment, fear, intimidation, and lack of trust in the criminal justice system. SAPS reported a decrease in the number of reported rape cases from 42,289 in 2019/20 to 36,463 in 2020/21. According to first-quarter SAPS crime statistics, 10,006 persons were raped between April and June 2021. Police Minister Bheki Cele released crime statistics that 9,556 rape cases were reported between July and September. There were numerous reports of rapes by police officers of sex workers, lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) persons, incarcerated persons, and others (see also section 1.c.).
There were numerous reported sexual assaults such as the following example. In June 2020 a woman eight months pregnant was found dead hanging from a tree in Johannesburg. She and her fetus had multiple stab wounds. Muzikayise Malephane was arrested and charged with premeditated murder. In February he was sentenced to 20 years in prison for murder, five years for defeating the ends of justice, and five years for possession of an illegal firearm and ammunition.
According to the National Prosecuting Authority 2019-2020 Annual Report, the authority achieved its highest number of successfully prosecuted sexual offense cases ever during that time period. It prosecuted 5,451 sexual offense cases and had 4,098 convictions, a 75 percent conviction rate.
The Department of Justice operated 96 dedicated sexual offenses courts throughout the country. Although judges in rape cases generally followed statutory sentencing guidelines, women’s advocacy groups criticized judges for using criteria, such as the victim’s behavior or relationship to the rapist, as a basis for imposing lighter sentences.
The government provided funding for, and the National Prosecuting Authority operated 51 rape management centers, addressing the rights and needs of survivors and vulnerable persons, including legal assistance. A key objective of the centers was prosecution of sexual, domestic violence, and child-abuse offenders. Approximately 75 percent of the cases they took to trial resulted in convictions.
Domestic violence was pervasive and included physical, sexual, emotional, and verbal abuse, as well as harassment and stalking. During the pandemic, NGOs and the government documented an escalation of gender-based violence against women and girls. The government prosecuted domestic violence cases under laws governing rape, indecent assault, damage to property, and violating a protection order. The law requires police to protect victims from domestic violence, but police commanders did not always hold officers accountable. Conviction of violating a protection order is punishable by up to five years’ imprisonment and up to 20 years’ imprisonment if convicted of additional criminal charges. Penalties for conviction of domestic violence include fines and sentences of between two and five years’ imprisonment.
During the year media documented a rise in teenage pregnancies particularly during the pandemic with the South African Medical Research Council attributing violence against women and girls as a contributor to these pregnancies along with difficulty faced by adolescents in obtaining contraceptives. In December the basic education minister published a new policy on prevention and management of teenage pregnancy. Under the policy, schools are mandated to report to SAPS cases of statutory rape, if a girl is younger than age 16 and the father of the unborn child is 16 or older.
The government financed shelters for abused women, but NGOs reported a shortage of such facilities, particularly in rural areas, and that women were sometimes turned away from shelters.
Female Genital Mutilation/Cutting (FGM/C): The law prohibits FGM/C of girls and women, but girls in isolated zones in ethnic Venda communities in Limpopo Province were subjected to the practice. The government continued initiatives to eradicate the practice, including national research and sensitization workshops in areas where FGM/C was prevalent.
Sexual Harassment: Although prohibited by law, sexual harassment remained a widespread problem. Sexual harassment is a criminal offense for which conviction includes fines and sentences of up to five years’ imprisonment.
Enforcement against workplace harassment is initially left to employers to address as part of internal disciplinary procedures. The Department of Employment and Labour (Department of Labour) issued guidelines to employers on how to handle workplace complaints that allow for remuneration of a victim’s lost compensation plus interest, additional damages, legal fees, and dismissal of the perpetrator in some circumstances. NGOs and unions urged the government to ratify the International Labor Organization (ILO) convention on the prevention of violence and harassment in the workplace. Despite presidential support, parliament had yet to ratify the convention by year’s end.
NGOs reported sexual harassment of women in the major political parties. Only two of the seven major parties had policies against sexual harassment.
Reproductive Rights: There were no reports of forced abortion on the part of government authorities; however, during the year there were reports of forced sterilizations submitted to the Commission for Gender Equality and civil society organizations.
Couples and individuals have the right to decide freely the number, spacing, and timing of their children. The full range of contraception methods were available at all primary health-care clinics for free. Emergency health care was available for the treatment of complications arising from unsafe abortion.
The government provided access to sexual and reproductive health services for survivors of sexual violence. The country has laws and policies to respond to gender-based violence and femicide, although authorities did not fully implement these policies and enforce relevant law. The law provides for survivors of gender-based violence to receive shelter and comprehensive care, including treatment of injuries, a forensic examination, pregnancy and HIV testing, provision of postexposure prophylaxis, and counseling rehabilitation services.
According to the Saving Mothers Report 2017/2019, there has been a progressive and sustained reduction in institutional maternal mortality in the past three triennia (2010-19), from 320 per 100,000 live births to 120 per 100,000 live births. The report further identified that a significant systemic driver contributing to mortality was the length of time it took for emergency service personnel to arrive at a facility where a skilled birth attendant can deal with an emergency. Furthermore, the government developed a Framework and Guidelines for Maternal and Neonatal Care during a Crisis: COVID-19 response to strengthen Maternal, Perinatal, and Neonatal services for emergency preparedness and management.
Menstruation and access to menstruation hygiene affected girls’ attendance at school. One NGO estimated 30 percent of girls did not attend school while they menstruated, due to lack of access to sanitary products. During the year observers noted substantial increases in teenage pregnancies, which also affected girls’ attendance at school.
Discrimination: Discrimination against women remained a serious problem despite legal equality in family, labor, property, inheritance, nationality, divorce, and child custody matters. Women experienced economic discrimination in wages, extension of credit, and ownership of land.
Traditional patrilineal authorities, such as a chief or a council of elders, administered many rural areas. Some traditional authorities refused to grant land tenure to women, a precondition for access to housing subsidies. Women could challenge traditional land tenure discrimination in courts, but access to legal counsel was costly.
By law any difference in the terms or conditions of employment among employees of the same employer performing the same, substantially similar, or equal value work constitutes discrimination. The law expressly prohibits unequal pay for work of equal value and discriminatory practices, including separate pension funds for different groups in a company (see section 7.d.).
There were numerous reports of racial discrimination, despite the prohibition under the constitution of unfair discrimination against anyone on one or more grounds, including on the ground of race. The South African Human Rights Commission stated in June that gross inequality was fueling racism and racial polarization. The Department of Human Settlements acknowledged inequality along racial lines had affected and continued to affect the country’s segregated spatial development as well as poor communities’ access to reliable infrastructure. Approximately 300 Equality Courts mandated by the Promotion of Equality and Prevention of Unfair Discrimination Act resolved only 600 matters a year.
Some advocacy groups asserted white farmers were racially targeted for burglaries, home invasions, and killings, while many observers attributed the incidents to the country’s high and growing crime rate. According to the Institute for Security Studies, “farm attacks and farm murders have increased in recent years in line with the general upward trend in the country’s serious and violent crimes.”
Local community or political leaders who sought to gain prominence in their communities allegedly instigated some attacks on African migrants and ethnic minorities (see section 2.f., Abuse of Migrants, Refugees, and Stateless Persons). The government sometimes responded quickly and decisively to xenophobic incidents, sending police and soldiers into affected communities to quell violence and restore order, but responses were sporadic and often slow and inadequate. Civil society organizations criticized the government for failing to address the causes of violence, for not facilitating opportunities for conflict resolution in affected communities, for failing to protect the property or livelihoods of foreign nationals, and for failing to deter such attacks by vigorous investigation and prosecution of perpetrators.
The NGO Working Group of Indigenous Minorities in Southern Africa estimated there were 7,500 indigenous San and Khoi in the country, some of whom worked as farmers or farm laborers. By law the San and Khoi have the same political and economic rights as other citizens, although the government did not always effectively protect those rights or deliver basic services to indigenous communities. Indigenous groups complained of exclusion from land restitution, housing, and affirmative action programs. They also demanded formal recognition as “first peoples” in the constitution. Their lack of recognition as first peoples excluded them from inclusion in government-recognized structures for traditional leaders. Their participation in government and the economy was limited due to fewer opportunities, lack of land and other resources, minimal access to education, and relative isolation.
Birth Registration: The law provides for citizenship by birth (if at least one parent is a permanent resident or citizen), descent, and naturalization. Registration of births was inconsistent, especially in remote rural areas and by parents who were unregistered foreign nationals. Children without birth registration had no access to government services such as education or health care, and their parents had no access to financial grants for their children. Organizations such as Lawyers for Human Rights continued to draw attention to the problem of statelessness among children born in the country to both citizens and foreign nationals.
Education: Public education is compulsory and universal until age 15 or grade nine. Public education is fee based and not fully subsidized by the government. Nevertheless, the law provides that schools may not refuse admission to children due to a lack of funds; therefore, disadvantaged children, who were mainly black, were eligible for financial assistance. Even when children qualified for fee exemptions, low-income parents had difficulty paying for uniforms and supplies. In violation of law, noncitizen children were sometimes denied access to education based on their inability to produce identification documents, such as birth certificates and immunization documents.
Child Abuse: The law criminalizes child abuse. Violence against children, including domestic violence and sexual abuse, remained widespread. Civil society and academics documented evidence that experiencing child maltreatment and witnessing partner abuse in the home as a child increased the risk of becoming both a perpetrator and victim of sexual and intimate partner violence as an adult, contributing to intergenerational abuse and violence.
There were reports of abuse of students by teachers and other school staff, including reports of assault and rape. The law requires schools to disclose sexual abuse to authorities, but administrators sometimes concealed sexual violence or delayed taking disciplinary action.
Child, Early, and Forced Marriage: By law parental or judicial consent to marry is required for individuals younger than 18. Nevertheless, ukuthwala, the practice of abducting girls as young as 14 and forcing them into marriage, occurred in remote villages in Western Cape, Eastern Cape, and KwaZulu-Natal Provinces. The law prohibits nonconsensual ukuthwala and classifies it as a trafficking offense, and the National Prosecuting Authority prosecuted multiple cases of forced marriage.
Sexual Exploitation of Children: The law prohibits commercial sexual exploitation, sale, and offering or procurement of children for commercial sex and child pornography. The Film and Publications Board maintained a website and a toll-free hotline for the public to report incidents of child pornography. Online sexual exploitation of children continued in the country, potentially made worse by the pandemic and lockdown. Government authorities from the Department of Social Development and SAPS conducted educational outreach programs on the dangers of online recruitment and grooming. Media, government, and civil society reported that children were made more vulnerable to trafficking, particularly girls to sexual exploitation and trafficking, because of the pandemic’s economic impacts. The minimum age for consensual sex is 16.
International Child Abductions: The country is a party to the 1980 Hague Convention on Civil Aspects of International Child Abduction. See the Department of State’s Annual Report on International Parental Child Abduction at travel.state.gov/content/travel/en/International-Parental-Child-Abduction/for-providers/legal-reports-and-data/reported-cases.html
According to a 2020 study published by the Isaac and Jessie Kaplan Centre for Jewish Studies at the University of Cape Town and the UK-based Institute for Jewish Policy Research, the country’s Jewish population stood at 52,300, with the majority living in Cape Town and Johannesburg. The South African Jewish Board of Deputies recorded 65 anti-Semitic incidents, consistent with the 69 incidents reported in 2020; however, the bulk of the incidents occurred in May during the conflict between Israel and Hamas. There were reports of verbal abuse and hate speech, especially in social media and radio talk shows, and attacks on Jewish persons or property.
See the Department of State’s Trafficking in Persons Report at https://www.state.gov/trafficking-in-persons-report/.
Persons with disabilities could access education, health services, public buildings, and transportation on an equal basis with others. The government provided government information and communication in accessible formats.
The law prohibits discrimination based on physical, sensory, intellectual, and mental disability in employment or access to health care, the judicial system, and education. The law, however, prohibits persons identified by the courts as having a mental disability from voting. The Department of Transportation policies on providing services to persons with disabilities were consistent with the constitution’s prohibition on discrimination. The Department of Labour ran vocational centers at which persons with disabilities learned income-generating skills. Nevertheless, government and private-sector employment discrimination existed. The law mandates access to buildings for persons with disabilities, but such regulations were rarely enforced, and public awareness of them remained minimal.
The law prohibits harassment of persons with disabilities and, in conjunction with the Employment Equity Act, provides guidelines on the recruitment and selection of persons with disabilities, reasonable accommodation for persons with disabilities, and guidelines on proper handling of employees’ medical information. Enforcement of this law was limited.
The 2020-2021 Annual Report of the Department of Basic Education stated there were numerous barriers to education for students with disabilities, primarily a policy of channeling students into specialized schools at the expense of inclusive education. The department’s report noted progress toward a more inclusive basic education and cited expansion of “special schools” and increased enrollment of students with disabilities in both special and public schools. Separate schools frequently charged additional fees (making them financially inaccessible), were located long distances from students’ homes, and lacked the capacity to accommodate demand. Human Rights Watch reported that children with disabilities were often denied tuition waivers or tuition reductions provided to other children. Children often were held in dormitories with few adults, many of whom had little or no training in caring for children with disabilities. When parents attempted to force mainstream schools to accept their children with disabilities – an option provided for by law – schools sometimes rejected the students outright because of their disabilities or claimed there was no room for them. Many blind and deaf children in mainstream schools received only basic care rather than education. Youth with disabilities in school faced problems of access (for example assistive equipment and technology; availability of learning materials in braille) and discriminatory attitudes that prevent their full and effective participation.
According to the Optimus Study on Child Abuse, Violence and Neglect in South Africa, children with disabilities were 78 percent more likely than children without disabilities to have experienced sexual abuse in the home. Persons with disabilities were sometimes subject to abuse and attacks, and prisoners with mental disabilities often received no psychiatric care.
HIV and HIV-related social stigma and discrimination in employment, housing, and access to education and health care remained a problem, especially in rural communities.
Despite government policies prohibiting discrimination, there were reports of official mistreatment or discrimination based on sexual orientation or gender identity. For example, there were reports of security force members raping LGBTQI+ individuals during arrest. A 2018 University of Cape Town report underscored violence and discrimination, particularly against lesbians and transgender individuals. The report documented cases of “secondary victimization” of lesbians, including cases in which police harassed, ridiculed, and assaulted victims of sexual and gender-based violence who reported abuse. LGBTQI+ individuals were particularly vulnerable to violent crime due to anti-LGBTQI+ attitudes within the community and among police. Anti-LGBTQI+ attitudes of junior members of SAPS affected how they handled complaints by LGBTQI+ individuals. According to Mamba Online, a gay news and lifestyle website, more than 22 LGBTQI+ persons were killed since February. One NGO in Durban claimed most hate crime victims did not report their cases to police due to secondary victimization; several activists accused religious leaders of not condemning hate crimes and killings against the LGBTQI+ community.
The constitution prohibits discrimination based on sexual orientation. The law prohibits discrimination against LGBTQI+ persons in housing, employment, nationality laws, and access to government services such as health care. In 2019 the High Court of Gauteng ruled that the Dutch Methodist Church’s ban on solemnizing same-sex marriages was unconstitutional.
There were reports persons accused of witchcraft were attacked, driven from their villages, and in some cases killed, particularly in Limpopo, Mpumalanga, KwaZulu-Natal, and Eastern Cape Provinces. Victims were often elderly women. Traditional leaders generally cooperated with authorities and reported threats against persons suspected of witchcraft.
Persons with albinism faced discrimination and were sometimes attacked in connection with ritual practices.
In October, three men were found guilty of the 2018 murder of Gabisile Shabane, age 13, who lived with albinism. They were given life sentences.
Ritual (muthi) killings to obtain body parts believed by some to enhance traditional medicine persisted. Police estimated organ harvesting for traditional medicine resulted in 50 killings per year.
NGOs reported intimidation and violent attacks on rural land rights activists. In October 2020 environmental activist Fikile Ntshangase was killed in her home. As a prominent member of the Mfolozi Community Environmental Justice Organization, she had been involved in legal proceedings protesting expansion in KwaZulu-Natal Province of one of the country’s largest open coal mines. No arrests were made. Another member of her community critical of the coal mine survived a drive-by shooting of his home in 2020. The South African Human Rights Commission called on the government to create a safe environment for activists to exercise their rights, including acting on threats against activists. Allegedly, two additional antimining activists, Tolakele Mthethwa and Sabelo Dladla, survived attacks in April.
Discrimination against members of religious groups occurred. In 2019 a female SANDF member Major Fatima Isaacs was ordered to remove her religious headscarf from beneath her military beret. She refused the order. In January 2020 SANDF dropped charges against Isaacs of willful defiance and disobeying a lawful command. The military during the year amended its dress policy to allow Muslim women to wear headscarves as part of their uniform