Section 6. Discrimination, Societal Abuses, and Trafficking in Persons
Rape and Domestic Violence: Rape of men or women, including spousal rape, is illegal and remained a serious and pervasive problem. The minimum sentence for conviction of rape is 10 years in prison for the first offense. 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 attackers were acquaintances or family members of the victim, which contributed to a reluctance to press charges, as did a poor security climate and societal attitudes. In June, Khensani Maseko, a Rhodes University student, committed suicide after being raped by her boyfriend. In response the Department of Higher Education drafted a policy that requires institutions to expand support for victims of sexual violence and that perpetrators be prosecuted. From April 2017 through March, 40,525 cases of rape were reported. According to the 2017-2018 NPA Annual Report, the conviction rate for sexual offense crimes was 73 percent based on a sample of 6,879 cases that were “finalized” or investigated first as rape cases before being passed to the NPA and tried. A Medical Research Council study on the investigation, prosecution, and adjudication of reported rape cases concluded that only 18.5 percent of cases reported went to trial and only 8.6 percent of cases resulted in a verdict of guilty. Prosecutors chose not to prosecute many cases due to insufficient evidence. Poor police training, insufficient forensic lab capacity, a lack of trauma counseling for victim witnesses, and overburdened courts contributed to the low conviction rate.
The Department of Justice operated 58 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 NPA operated 55 rape management centers, or TCCs (Thuthuzela Care Centers). All TCCs were located at hospitals. Of rape cases brought to TCCs, 47 percent went to trial and were terminated–by either conviction or acquittal–within nine months from the date a victim reported the case.
Domestic violence was pervasive and included physical, sexual, emotional, and verbal abuse, as well as harassment and stalking. 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 a prison sentence of up to five years, or up to 20 years if additional criminal charges apply. Penalties for conviction of domestic violence include fines and sentences of between two and five years’ imprisonment.
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. The government conducted rape and domestic violence awareness campaigns, including a first-of-its-kind GBV summit. In August the government hosted numerous events focused on empowering women in business, government, health, sports, and the arts; however, many civil society organizations were critical of the Ministry of Women’s general focus on women’s economic empowerment while neglecting the issue of GBV.
On August 1, women across the country participated in #TotalShutdown, a one-day protest against violence against women. According to SAPS, the number of incidents of violence against women and children drastically increased nationwide during the year. In November, SAPS arrested two suspects in connection with the killing of three women and four children from one family in Vlakfontein (south of Johannesburg).
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. For additional information, see Appendix C.
Sexual Harassment: Although the law prohibits sexual harassment, it remained a widespread problem. With criminal prosecution a rare secondary step that the complainant must request, the government left enforcement primarily to employers. The Department of Labor 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.
Coercion in Population Control: There were no reports of forced abortion or involuntary sterilization. For additional information, see Appendix C.
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 decisions in courts, but access to legal counsel was costly.
According to the Employment Equity Amendment Act, 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 act expressly prohibits unequal pay for work of equal value and discriminatory practices, including unequal pay and separate pension funds for different groups in a company.
The minister of women in the Presidency, the Commission for Gender Equality, the Commission for Employment Equity, and a number of other government bodies monitored and promoted women’s rights, as did numerous NGOs and labor unions.
Birth Registration: The law provides for citizenship by birth (if at least one parent is a permanent resident or citizen), descent, and naturalization. Nevertheless, registration of births was inconsistent, especially in remote rural areas or among parents who were unregistered foreign nationals. Children without birth registration had no access to free government services such as education or health care, and their parents had no access to financial grants for their children. For additional information, see Appendix C.
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; disadvantaged children, who were mainly black, were eligible for 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.
Child Abuse: Child abuse is illegal. The penalties for conviction of child abuse include fines and up to 20 years’ imprisonment. Violence against children, including domestic violence and sexual abuse, remained widespread.
Some teachers and other school staff harassed, abused, raped, and assaulted students in schools, according to reports. The law requires schools to disclose sexual abuse to authorities, but administrators sometimes concealed sexual violence or delayed disciplinary action.
In April a Hermanus (Western Cape) schoolteacher was tried for the rape and kidnapping at gunpoint of a female pupil. The trial continued at year’s end.
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 age 12 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. According to the 2016 State of the World’s Children Report of the UN Children’s Fund, 6 percent of girls in the country were married before age 18. For additional information, see Appendix C.
Sexual Exploitation of Children: Penalties for conviction of sexual exploitation of a child include fines and imprisonment of up to 20 years. By law the age of consent is 16. The statutory sentence for conviction of rape of a child is life in prison, although the law grants judicial discretion to issue sentences that are more lenient.
The law prohibits child pornography and provides for penalties including fines and imprisonment of up to 10 years. The Film and Publications Board maintained a website and a toll-free hotline for the public to report incidents of child pornography.
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 https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction/for-providers/legal-reports-and-data.html.
The South African Jewish Board of Deputies estimated the Jewish community at 75,000 to 80,000 persons. There were reports of verbal abuse, hate speech, harassment, and attacks on Jewish persons or property. Government and political representatives made anti-Semitic statements.
Twin brothers Brandon Lee Thulsie and Tony Lee Thulsie, arrested in 2016 for allegedly planning to set off explosives at Jewish establishments, continued to await trial at year’s end. They were charged with contravening the Protection of Constitutional Democracy Against Terror and Related Activities law and with having ties to a foreign terrorist organization.
Trafficking in Persons
See the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip/rls/tiprpt/.
Persons with Disabilities
The law prohibits discrimination based on physical, sensory, intellectual, and mental disability in employment or access to health care, the judicial system, and education. Persons identified by the courts as having a mental disability, however, are prohibited by law from voting. Department of Transportation policies on providing services to persons with disabilities were consistent with the constitution’s prohibition on discrimination. The Department of Labor ran vocational centers at which persons with disabilities learned skills to earn a living. Nevertheless, government and private-sector 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.
According to the 2017-2018 Annual Report of the Department of Basic Education, 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. Separate schools frequently charged additional fees (making them financially inaccessible), were located long distances from students’ homes, and lacked the capacity to accommodate demand. Children often were housed 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. Many blind and deaf children in mainstream schools received only basic care rather than education.
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.
Persons with disabilities were sometimes subject to abuse and attacks, and prisoners with mental disabilities often received no psychiatric care. According to the 2016 Optimus Study, children with disabilities were 78 percent more likely than children without disabilities to have experienced sexual abuse in the home. According to media reports, in June a mute 11-year-old boy was raped at the Golden Hours Special Needs School in Durban North.
Incidents of racism continued. In March, Vicki Momberg was convicted of crimen injuria (see section 2.a.) for repeatedly addressing black police officers with a racial slur and sentenced to two years’ imprisonment without parole. She was recorded on video using the “K-word” 48 times at the officers who were trying to assist her after she was a victim of a theft in Johannesburg. Momberg’s conviction was the first under the 2000 Promotion of Prevention of Unfair Discrimination Act.
Some advocacy groups asserted that white farmers were targeted for burglaries, home invasions, and killing because of their race. Some analysts 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 South Africa’s serious and violent crimes.” A report by the NGO AgriSA stated that killings on farms during the year were at their lowest level in the past 19 years. According to SAPS 2017/2018 crime statistics, farm killings represented only 0.3 percent of all killings in the country (62 of 20,336).
Xenophobic attacks on foreign African migrants and ethnic minorities occurred and sometimes resulted in death, injury, and displacement. Incidents of xenophobic violence generally were concentrated in areas characterized by poverty and lack of services. Citizens blamed immigrants for increased crime and the loss of jobs and housing. According to researchers from the African Center for Migration and Society, perpetrators of crimes against foreign nationals enjoyed relative impunity. In August, Soweto and other Johannesburg-area townships saw a spate of looting and violence targeted against small foreign-owned convenience shops. SAPS confirmed that four residents died and at least 27 were arrested on charges of murder, possession of firearms, and public disorder in connection with the violence. At year’s end their trial date had yet to be set.
Local community or political leaders who sought to gain notoriety in their communities allegedly instigated some attacks. 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 often slow and inadequate. Since 2013 the government significantly reduced the number of assaults and deaths by evacuating foreign nationals from communities affected by xenophobic violence, although little was done to protect their property. 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 or other resources, minimal access to education, and relative isolation.
Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity
The constitution prohibits discrimination based on sexual orientation. The law prohibits discrimination against LGBTI persons in housing, employment, nationality laws, and access to government services such as health care.
Despite government policies prohibiting discrimination, there were reports of official mistreatment or discrimination based on sexual orientation or gender identity. Security force members, for example, reportedly raped LGBTI 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 violence and GBV who reported abuse. LGBTI individuals were particularly vulnerable to violent crime due to anti-LGBTI attitudes within the community and among police. Anti-LGBTI attitudes among junior members of SAPS affected how they handled complaints by LGBTI individuals.
The multisector network of civil society organizations Hate Crimes Working Group analyzed 945 cases of hate crimes from across five provinces and found that 17 percent of victims were targeted due to their sexual orientation. According to the NGO, approximately 66 percent of hate crimes were not reported to police. Of those reported there were numerous abuses similar to the following example. In February media reported that during the annual gathering in Tongaat of pastors of the Shembe Nazareth Church, 50 male parishioners were beaten for being gay.
HIV and AIDS Social Stigma
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. In 2015 the South African National AIDS Council–a joint body composed of government, academic, and civil society representatives–released a landmark People Living with HIV Stigma Index. The council surveyed a representative sampling of more than 10,000 HIV-positive individuals regarding their experiences with social stigma. The survey revealed a large majority of respondents had never been excluded from social gatherings. Nevertheless, those who reported exclusion cited their HIV status as the main reason. For additional information, see Appendix C.
Other Societal Violence or Discrimination
There were reports that 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.
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 deaths per year.
Incidents of vigilante violence and mob killings occurred. For example, in August, two men were killed in separate incidents of mob justice in Brits (North West Province). In one case the victim of an armed robbery caught the perpetrator and took him to the night vigil of the victim’s congregation, where he was assaulted and later died of his injuries. In the second case, police arrested a man for assault. Hundreds of community members surrounded the police vehicle in which the suspect was being held, poured hot wax on the vehicle, pelted police with stones, and removed the suspect, whom they set on fire and killed.