SOUTH AFRICA

Copyright © November 1995 by Human Rights Watch.
All rights reserved.
Printed in the United States of America.
ISBN 1-56432-162-2
Library of Congress Catalog Number: 95-81632

Human Rights Watch/Africa

Human Rights Watch/Africa division was established in 1988 to monitor and promote the observance of internationally recognized human rights in sub-Saharan Africa. Peter Takirambudde is the executive director; Janet Fleischman is the Washington director; Alex Vines is the research associate; Kimberly Mazyck is the associate; Alison DesForges, Bronwen Manby, Binaifer Nowrojee and Michele Wagner are consultants. William Carmichael is the chair of the advisory committee and Alice Brown is the vice chair.

Human Rights Watch Women's Rights Project

The Human Rights Watch Women's Rights Project was established in 1990 to monitor violence against women and gender discrimination throughout the world. Dorothy Q. Thomas is the director; Regan Ralph is the staff attorney; LaShawn Jefferson is the research associate; Robin Levi is the Orville Schell fellow; Sinsi Hernandez-Cancio is the Women's Law and Public Policy Fellow; Binaifer Nowrojee is the consultant; and Evelyn Miah and Kerry McArthur are the associates. Kathleen Peratis is chair of the advisory committee.

This report was written by consultants Binaifer Nowrojee and Bronwen Manby on the basis of interviews and research conducted in South Africa by Binaifer Nowrojee between January 26 and February 20, 1995 and subsequent interviews and research by Bronwen Manby. It was edited by Bronwen Manby and Dorothy Q. Thomas, Director of the Women's Rights Project. In addition to interviewing women victims/survivors of domestic violence and rape in Durban, Cape Town and Johannesburg, Human Rights Watch met with a wide array of nongovernmental organizations and individuals involved with prevention of violence against women. Within the government, we met with representatives of the police, magistrates, prosecutors, district surgeons and government social workers. The names of the women interviewed have been changed in order to protect their safety and privacy.

We would like to thank all the women interviewed for this report, and in particular the following organizations and individuals for their invaluable assistance: Rashida Manjoo and the Advice Desk for Abused Women; Cathi Albertyn of the Centre for Applied Legal Studies; Mmatshilo Motsei and the Alexandra Clinic; Joanne Fedler, Lisa Vetten and Anu Pillay of People Opposing Women Abuse; Ilze Olckers of Lawyers for Human Rights; Margot Lochrenberg and Bronwen Pithy of the University of Cape Town Institute of Criminology and Rape Crisis; Zubeda Dangor and the NISAA Institute for Women's Development; Daphne Nkosi of the Schoemansdal Advice Office, KaNgwane; and Stephan Klasen of the World Bank. We would also like to thank Kerry McArthur for her invaluable production assistance.

The Reconstruction and Development Programme (RDP) must focus on the reconstruction of family and community life by prioritising and responding to the needs of ... women and children who have been victims of domestic and other forms of violence.1

It has been a year and a half since the multiracial elections of April 1994 marked the end of the apartheid system in South Africa. An "interim" constitution that will be in effect for two years has established South Africa's first justiciable bill of rights, in a country previously characterized by legislated inequality and severe human rights abuses.2 The African National Congress (ANC), the foremost group in the struggle to end racial oppression, is the majority party in the government of national unity that will rule the country for five years until the next general elections. As the leader of the new government, the ANC has reaffirmed its pledge to respect human rights and uphold the rule of law.

A key element of the new dispensation in South Africa is a formal commitment to gender as well as racial equality. During the lead up to the 1994 elections, the ANC published a policy document known as the Reconstruction and Development Programme (RDP) which states that a "key focus throughout the RDP is on ensuring a full and equal role for women in every aspect of our economy and society." The interim constitution guarantees gender equality and prohibitsdiscrimination on the basis of sex,3 and also provides for the creation of bodies to monitor the government's respect for human rights, including a Human Rights Commission and a Commission for Gender Equality. In addition, South Africa now ranks seventh in the world for the number of women in its parliament.4

Despite these changes, South African women remain second class citizens. Economic, social and legal inequalities persist. Women are subject to widespread violence that prevents them from enjoying the other rights that they are ensured by the interim constitution. Although reliable national statistics are not readily available, both domestic violence5 and sexual assault are pervasive in South Africa and are directed almost exclusively against women, often in places in which they should be safe and by men they know and should be able to rely on. South African women's organizations estimate that perhaps as many as one in every three South African women will be raped and one in six South African women is in an abusive domestic relationship. These are issues of immediate concern to South African women across the political and racial spectrum.

South African women victims6 of violence, regardless of race, continue to face a judicial and police system which is often unsympathetic and hostile to women seeking redress. Although new legal procedures for obtaining protection have been introduced, the efforts to transform the police from enforcers of apartheid into "community" police have in most cases not yet led to improved protection and recourse for women victims of violence. A dearth of support services further exacerbates the effects of violence against South African women.

South African women of all races continue to complain of mistreatment at the hands of police officers taking statements; prosecutors and magistrates in court; district surgeons (government doctors) who examine them; or court clerks who issue forms to abused women for an interdict (restraining order). Women victims of violence frequently experience indifferent or hostile treatment from police officers when they attempt to report abuse. Ignorance of the laws protecting women from domestic violence, including the 1993 Prevention of Family Violence Act, is common in many police stations and among court clerks. The act itself does not address violence by non-live in and same sex partners and does not cover the verbal and emotional abuse.

The state's response has also been problematic with respect to rape. Existing rape laws narrowly define this crime as occurring only between a man and a woman and involving the penetration of the penis into the vagina. Acts of forced oral or anal sex, or penetration by foreign objects are not considered rape. Moreover, while the government acknowledges that the number of reported rapes is only a fraction of the total, the number of prosecutions is even smaller. Police are often unaware of the procedures to follow when a rape is reported, and state medico-legal services are often substandard and can compromise medical evidence crucial to corroborating allegations of sexual abuse. In some cases, poor medico-legal work has also resulted in the denial to women the legal right to abortion in cases of pregnancy resulting from rape. In the courts, judges often discount the testimony of rape survivors and hand down lenient sentences to rapists.

The apartheid policies of the past continue to have an effect on women who are victims of domestic violence and rape. The legacy of violence that underpinned the apartheid state has led to extremely high levels of violence throughout society - including in the home. State racism and sexism hasprejudiced black women in particular in their interactions with police and judicial authorities. In the rural areas, where black women have the least education and work under the worst conditions, access to redress against perpetrators of violence is even more limited. In the townships, inaction by the police has led to a dangerous reliance on young "comrades" to mete out vigilante justice against alleged perpetrators of violence, including violence against women, undermining the rule of law.

The South African government, at the highest policy-making levels, has expressed a commitment to addressing these forms of violence against women. However, violence against women has not achieved the sort of high-level political attention that the more general political violence, for example, has been given both during the transition period and under the new regime. Although there are a number of encouraging initiatives, there is, to date, no coordinated national strategy to address the problems in the criminal justice, law enforcement, health and welfare systems in a systematic fashion. Policy changes have yet to be implemented consistently across government departments. The government attributes this lack of progress both to the fact that it is overwhelmed in trying to address all the problems caused by apartheid, and to entrenched attitudes in society which condone violence against women. These are valid points. However, lasting political and social transformation towards a democratic South Africa cannot be achieved without systematically addressing the violence inflicted on South African women by men.

The South African women's movement has made a number of significant efforts to address the state's inadequate response to domestic violence and rape.7 Their efforts, although at times hampered by limited resources as well as by race, class, and other divisions between women's groups, have resulted in many positive developments. These include the establishment of privately funded hot-lines and shelters for women in need, and the conducting of occasional training sessions on violence against women for police and judicial officers. These nongovernmental organizations have also been deeply involved in legal reform and in lobbying thepolice and judiciary to improve their response to domestic and sexual abuse. Where these organizations have had an impact on government policy and practice, women victims of violence are receiving somewhat better treatment. Yet, South African women's organizations contend that these improvements remain piecemeal and do not address the need for systemic change.

There are a handful of pioneering efforts to improve the state response to violence against women in South Africa. These include a specialized sexual offenses court in Cape Town, the Wynberg Court. At the Wynberg Court trained prosecutors achieve an almost 20 percent higher conviction rate in rape cases than that obtained in other courts. At Newcastle in KwaZulu-Natal, a "Crisis Centre" has been established at the hospital for women victims of violence, with the cooperation of the police and health personnel, and police handling of women who report abuse has been improved. At Sunnyside police station in Pretoria, a trauma center has been established, staffed by woman detectives, who are called when sexual abuse or domestic violence cases are reported. These initiatives, while not without difficulties, are commendable contributions. While moves have been made to extend their experience nationwide, progress has been slow, and these examples remain the exception. In other instances, positive efforts have not received sustained attention from the government and have closed down. For example, the work of a centralized rape reporting center in Hillbrow, a district of central Johannesburg, at which raped women receive police, medical and counseling services in the same centralized location has been significantly scaled back.

This report underscores the need for the South African government to improve its response to domestic violence and rape. These types of gender-based violence against women remain at extraordinarily high levels and, while there are encouraging initiatives, the state response has so far lacked the necessary commitment and sustained attention. If the new South African government is indeed serious about its RDP pledge to "ensure a full and equal role for women in every aspect of [the] economy and society,"8 it must take immediate steps to address violence against women - in particular rape and domestic violence - and fulfill its responsibility to prohibit and protect women against such abuses. Furthermore, these efforts to address violence against women must recognize the intersection of race and class with gender as it affects South African women who experience violence and seek state redress.

The South African government's commitment to the elimination of violence against women will entail legal reform, police and prosecutional training,enhanced inter-agency cooperation, improved data collection, and support for and collaboration with nongovernmental organizations. It may also require considerable resources at a time when there are many urgent calls on the government's funds. However, no progress can be made towards establishing the type of society that the liberation movements have pledged to create without addressing the violence suffered by women - a majority of the population - on a daily basis.

Legal Reform:

Ë While Human Rights Watch is encouraged by the South African government's efforts to sign Convention on the Elimination of All Forms of Discrimination against Women, it urges the government to formally ratify CEDAW without further delay.

Domestic Violence:

Ë The 1993 Prevention of Family Violence Act should be expanded (1) to include protection for individuals who are abused by a partner with whom they have never lived and lesbian and gay couples and (2) to extend jurisdiction over abuse cases to ensure that women can be protected wherever they are in South Africa when the abuse occurs.

Ë The Department of Justice should issue guidelines for magistrates in order to clarify the types of abuse which would qualify for an interdict (a form of restraining order) under the Prevention of Family Violence Act. These guidelines should expressly include both verbal and emotional abuse, in addition to physical abuse.

Ë Delays in payments to agents - the sheriffs - responsible for delivering court orders prohibiting abuse should never be considered a justification for failing immediately to deliver interdicts that have been issued as emergency remedies to domestic violence.

Ë Legal provisions must be introduced to protect counseling service workers who advise abused women from violence or threats of violence directed against them by their clients' abusive partners.

Ë Without diminishing protection to domestically-abused women, policymakers must address the concern that interdicts granted under the Prevention of Family Violence Act may violate the audi alteram partem rule(which allows both sides to present their cases before courts) because such interdicts are issued without a hearing and are for unspecified durations. One possibility might be to create a temporary interdict order which can be made final after a hearing.

Ë Guidelines must be adopted by the police and prosecution service on arrest and prosecution policy so that domestic violence cases are accorded the full attention of the criminal justice system. Family violence cases must not be treated as "private problems" and therefore not suitable for intervention by the criminal justice system. Appropriate sentencing policies must be developed, including compulsory attendance at programs designed for abusive partners.

Ë Prosecutors must be trained to deal with domestic violence cases in accord with clear guidelines. While prosecutional discretion must be safeguarded, prosecutors should be instructed to refrain from dropping cases of domestic abuse and to argue for strict bail conditions to be imposed where there is a history of violent assault.

Rape:

Ë It should be recognized in law that this crime can be committed by men or women against men or women. The definition of rape should be broadened to include anal and oral penetration as well as penetration by foreign objects such as sticks, bottles, or knives. The definition should focus on coercion by the perpetrator rather than lack of consent by the victim.

Ë Legislation should be introduced to abolish the use of the cautionary rule, which permits courts to exercise an excessive level of discretion in deciding whether or not to credit the testimony of women who allege they have been raped, in cases of rape or sexual assault, on the grounds that it discriminates against women on the basis of sex.

Ë Guidelines on sentencing for rape should be adopted by the Department of Justice and circulated to all judges. At the moment, rape sentences are wide-ranging and appear to be related more to the judge's views on rape than to any consistent application of established standards.

Ë Judges, magistrates, and prosecutors should receive mandatory training on rape and domestic violence and in the use of medico-legal evidence.

Improved Police Services

The police appear to be a major impediment to effective action in addressing violence against women.

Ë Police are obligated to ensure protection and equal enforcement of the law in domestic abuse cases. Police must be trained to eliminate gender, class and race bias in their responses to such abuse and to realize that domestic violence is not to be excused, tolerated or condoned. Standardized arrest policies should be considered for domestic violence cases.

Ë Police who are involved in investigating rape cases should receive proper training in forensic skills and in the importance of medical information.

Ë Police must provide prompt protection to women by diligently enforcing court orders that prohibit abuse and reduce the abuser's access to the victim. Police stations must make it a priority to respond speedily to a woman's urgent call in cases of domestic violence.

Ë The government should create an independent mechanism to monitor and oversee police treatment of women victims of violence. This body should be empowered to hear complaints and to take steps to sanction policeofficers who do not act professionally, including cases in which the abused woman is a partner of a police officer.

The Medico-Legal System

Ë The Department of Health should establish standardized procedures and services to ensure that all district surgeons are appropriately trained in the treatment of rape and domestic violence survivors. The treatment should be expanded from the collection of medical evidence to the provision of basic medical treatment. This after-care should include, at a minimum, medical treatment, emotional support and referral to the nearest counseling service. District surgeons should be required to provide rape survivors with information about additional existing services in the area.

Ë More district surgeons should be appointed in the rural areas.

Ë Rape reporting centers, modeled on the Hillbrow Medico-Legal Clinic, should be established as widely as possible, and in particular in townships. Such facilities must be staffed by trained police and medical personnel to allow victims to report cases of rape or battery, undergo medical examination, and receive appropriate treatment and counseling.

Ë Abortion laws which protect the right for rape victims to have access to abortion should be upheld without discrimination.

Inter-Departmental Coordination

The effectiveness of the law depends on cooperation and coordination among implementing law enforcement, judicial and social service agencies.

Ë Regional forums, similar to the Johannesburg rape forum, should be established in each province with government and nongovernmental organizations on it. Government representatives should include district surgeons, police, and the Department of Justice.

Ë In each province, the government should form a working group in which governmental and nongovernmental organizations meet on a regular basis in order to improve the government's response to and services for domestic violence and rape victims.

Ë The government should help fund the creation of legal assistance programs, accessible and affordable shelters, as well as counseling services for abused women.

Documentation of Violence against Women

Efforts to improve the South African government's response to domestic abuse and rape would be greatly enhanced by the availability of reliable national data detailing the nature and degree of the violence. At the moment, police do not distinguish cases of domestic violence from other assaults, while national statistics regarding rape are not comprehensively compiled.

Ë Studies of the nature and extent of violence against women should be carried out or funded by the government in close cooperation with nongovernmental organizations active in this field.

Women in the Struggle

From the outset, women were an important - although often marginalized - part of the resistance to the racial discrimination of the colonial and later apartheid regimes. In 1913, just one year after the founding of the ANC, a widespread campaign of passive resistance to the application of passes to African women in the Orange Free State was organized by women in the province. As a result of the campaign, a Bantu Women's League was established within the ANC; although the role of women within the ANC itself remained limited and largely restricted to support roles. Under the 1919 constitution of the ANC, for example, women had no voting rights: only in 1943 was the constitution amended to give women full membership and voting rights within the ANC. At the same time the ANC Women's League (ANCWL) was established, to which all women members of the ANC automatically belonged. In 1954, two years after the ANC's Defiance Campaign, which saw its membership surge to over 100,000, a national conference of women saw the creation of the Federation of South African Women (FEDSAW) and the adoption of a Women's Charter (parallel to the Freedom Charter adopted by a range of organizations at the Congress of the People at Kliptown in 1955) that committed the organization to the removal of "the laws and practices that discriminate against women." In 1956, the introduction of passes for African women throughout South Africa saw a highly visible nationwide anti-pass campaign by the ANCWL and FEDSAW, including a demonstration in Pretoria on August 9, thereafter "women's day" within the ANC alliance, and now recognized as a national holiday.

Anti-pass demonstrations were organized over the following years by the ANC, FEDSAW and the Pan-African Congress (PAC), after its formation in 1959, and culminated in the Sharpeville killings of March 21, 1960 and the banning of the ANC, the PAC and the South African Communist Party (SACP). With the onset of heightened state repression, FEDSAW also suffered although it was not itself banned. Women were recruited into the armed wing of the ANC, Umkhonto we Sizwe (Spear of the Nation), when the strategies of passive resistance were abandoned in favor of armed struggle. In 1983, FEDSAW became a member of the United Democratic Front (UDF), a coalition of anti-apartheid organizations formed to resist the imposition of a new constitution that continued to exclude blacks from meaningful political power. During the late 1980s, the ANC issued a number of documents relating to the form of a future government in South Africa, and by theearly 1990s had committed itself, among other principles, to the creation of a non-sexist state.

With the unbanning of ANC, PAC and SACP in February 1990, the ANCWL was also reconstituted. Among other activities, the ANCWL made demands for at least 30 percent of the ANC's National Executive Committee to be women (which was rejected at the first national conference of the ANC in July 1991). Nevertheless, the ANC adopted a quota for one third of their parliamentarians to be women. Eventually, one quarter of the members of parliament elected in April 1994 were women, most of them from the ANC. Two small political parties explicitly committed to women's issues contested the April 1994 elections, the Women's Rights Peace Party and the South African Women's Party. A Women's National Coalition (WNC) was launched in April 1992 by a large number of women's groups from across the political spectrum, and conducted a nationwide survey with the aim of finding women's demands for the new constitution of South Africa. In February 1994, a Women's Charter for Effective Equality was adopted at a national convention called by the WNC, which set out women's demands in fields ranging from the administration of justice to family life and partnerships, and called for "respect and recognition of [women's] human rights and dignity."

The new constitution contains a commitment to the elimination of discrimination on the basis of sex, gender and sexual orientation, and, in addition, to the creation of a Commission on Gender Equality, whose object is "to promote gender equality and to advise and to make recommendations to Parliament or any other legislature with regard to any laws or proposed legislation which affects gender equality and the status of women."9 However, legislation to establish the Gender Commission has not yet been passed.

The South African women's movement has made significant efforts since the 1970s to draw attention to the problems of domestic violence and rape, while few of the "traditional" human rights groups in South Africa have devoted much time to these issues. Every government action to improve the situation can be traced to advocacy efforts by these nongovernmental women's groups, including the creation of the Wynberg Sexual Offenses Courts, the acceptance of the Rape Trauma Syndrome by courts in the Western Cape and the creation of centralized rape reporting centers. The women's organizations have also been responsible for the establishment of privately funded hot-lines and shelters for women in need as well as training sessions for police and judicial officers on violence against womenin a number of areas. Where these organizations have had an impact, raped and abused women are receiving somewhat better treatment.

An important development is the growing number of women's groups in black communities. Increasingly, women's organizations based in the Indian, coloured and African communities are emerging to deal with these issues. One woman told Human Rights Watch that in the past black women were told that domestic violence and rape were issues for white women. Such things didn't happen to black women, they were told, or there were more important political and anti-apartheid issues to focus on:

The successes of the South African women's movement would be further enhanced by increased coordination among the women's groups themselves, with other human rights organizations and with government agencies at the national level. At the regional level, there has already been some effective coordination and cooperation.

South Africa is one of the most unequal societies in the world. Moreover, its inequalities are based to a unique extent on race: despite being a middle income country, the key indicators of poverty for the African population are equal to or worse than those for much poorer countries elsewhere in Africa.11 The economicdisparities between races introduced by the colonial regime were sharply accentuated by the policies of apartheid implemented by the National Party government elected in 1948: black12 South Africans were forcibly removed from "white" areas and compelled to live in substandard housing in the townships or, if they were African, in the already overcrowded "tribal reserves" established in colonial times, which were now renamed "bantustans" or "homelands" and granted nominal "independent" or "self-governing" status. Blacks were excluded from opportunities for advancement by job reservation and legal restrictions on economic activity for "non-whites." Pass laws prevented Africans from working, traveling or living outside certain areas without official permission. While focusing on race, the legislated inequalities of the apartheid system applied also to gender, and women were brought under direct state control after 1948 to a far greater extent than had previously been the case.13 Women of all races were legally inferior to men, and African women were especially disadvantaged.

Among the effects of the apartheid system was the impoverishment of large sections of the population: the alleviation of poverty is perhaps the most urgent problem facing South Africa's new government.14 Poverty is concentrated amongst the African population: 95 percent of those in the poorest 40 percent of the population are African, and 65 percent of Africans are poor, by the same measure.15 Research published by the Centre for Social and Development Studies at theUniversity of Natal found that seventeen million people were living below the minimum subsistence level in 1992.16

Women are disproportionately represented both amongst the rural population and (in part as a consequence) amongst the poor. The population profile of the former homelands is heavily weighted towards women and children. The majority of working-age men leave the area to look for work in the urban areas, either permanently or as migrant laborers returning home only occasionally.17 Until the abolition of the "influx control" laws in the mid-1980s which controlled population movement, women were unable to leave to seek work in the cities, and so if a woman's husband died or ceased to send money home, total destitution could result. While state control of the labor flow and regulation of residential areas by race is over, the legacy of such apartheid policies is very much present. Nearly 70 percent of the poor (defined as the poorest 40 percent of the population, with an income of R.301 (U.S.$86 per month per "adult equivalent") are resident in the former homelands: in all the homelands except KaNgwane the poor form over half of the population, and in the former Transkei 92 percent of the population is poor.18 Remittances home from migrant workers and old age pensions are the only source of income for many families in those areas.

While women carry out the bulk of the subsistence farming that takes place in the homelands, their access to land under the communal tribal land tenure systems is only through their husbands or male relatives. Traditional leaders, or chiefs, who decide land allocations, are almost exclusively men, and men are regarded as the head of the household for land tenure purposes. A large number of rural households, both in the homelands and the commercial farming areas, in fact have no access to land other than a plot for a house. Of the nearly 2.5 million poor rural households (representing roughly twelve million poor people) more than twomillion have no access to piped water, modern sanitation or electricity, and nearly 1.6 million poor rural households (roughly ten million people) rely on wood as the main source of energy for cooking. Fetching water and collecting wood are overwhelmingly regarded as female tasks: in the vast majority of poor rural households women are thus forced to spend more than four hours a day collecting water and firewood.19

The migrant labor system also has a negative impact on women in the cities. Migrant workers still stay mostly in supposedly single-sex hostels run by the state or private companies. As apartheid controls have broken down, women have increasingly moved into the hostels where their partners are living - due to housing shortages elsewhere and in some cases as a consequence of political violence - as a result, they are dependent on the man with whom they are staying. Conditions in these hostels are appalling, but the consequences of being thrown out are nonetheless sufficiently serious to result in tolerance of abuse.

Women form 36 percent of the total work force in South Africa, as recorded in the 1991 population census.20 When they do have paid employment, women are concentrated in lower paying service-sector jobs, including domestic service (where they form 89 percent of those employed); in other sectors they are concentrated in secretarial and other non-managerial positions.21 In the African and coloured townships of the small towns of the commercial farming areas, often the only work available for women is domestic work at rates even lower than those paid in the cities, and few women are able to secure such positions. Even where they are employed to do the same work as men, women may receive lower rates of pay: for example, women farm workers both depend on their husbands or male relatives for access to work and are paid at a lower hourly rate than their male counterparts.22 Women form a majority of the work force earning less than R.3,000 (U.S.$857) per year, and less than 10 percent of those earning more than R.70,000 (U.S.$20,000).23 Disadvantaged in the job market, women in South Africa are additionally almost exclusively responsible for child care. Even where both parents are present, men in all South African cultures are unlikely to take more than token responsibility for care of children.24

The implementation of apartheid over forty-five years has resulted in an economic and social crisis in South Africa that in turn has led to extraordinarily high rates of violent crime. Over the past decade, statistics for homicide and serious assault have escalated dramatically, and crime is one of the principal preoccupations of South Africans under the new government. South Africa has the highest per capita figures for violent death recorded in any country not at war;25 rape figures are similarly high, as discussed in the body of this report. The destruction of families and stable social conditions by the enforcement of the pass laws and the forced removal of whole communities under the infamous Group Areas Act, which demarcated residential areas for the different "races," created perfect conditions for a rise in crime. The impoverishment of the African population, in particular, has meant that many individuals are driven to crime in the absence of other economic opportunities. The vicious repression of political opposition by the apartheid policemachinery, which at the same time largely ignored ordinary crime within black communities, has embedded a belief in the effectiveness of force in solving problems and encouraged the development of a culture of vigilante justice and noncooperation with state structures.

The rise in violent crime coincided with the development of endemic political violence in many black communities. Political violence first became a significant phenomenon in South Africa in the mid-1980s, at the time of the mass uprising against continued minority rule coordinated by the United Democratic Front (a coalition of anti-apartheid groups that led the opposition to the white government while the ANC was still banned) and the subsequent state of emergency that was declared by the government in 1985 and lasted, with a brief interlude in 1986, until 1990. In Natal and the homeland of KwaZulu (contained in several pieces within Natal's borders), violence broke out between supporters of the UDF and the KwaZulu-based Inkatha, at that time registered as a Zulu "cultural movement" and not a political party. Violence was particularly bad in the areas surrounding Durban and Pietermaritzburg, but later spread throughout most of the province.

During the 1980s, this type of political violence was largely concentrated in KwaZulu and Natal, although there were outbreaks elsewhere, especially in the townships surrounding Cape Town. In 1990, after the unbanning of the ANC and the initiation of negotiations for a transition to a democratic government, the ANC suspended its armed struggle, and politically motivated violence by or against state structures and representatives decreased. However, violence between black political parties spread dramatically from KwaZulu and Natal to the townships of the greater Johannesburg area. Although from 1993 the violence in the Johannesburg area was mostly confined to the East Rand townships of Katlehong and Thokoza, it continued unabated throughout large areas of KwaZulu.

The main protagonists of the violence were members of Inkatha, which transformed itself into the Inkatha Freedom Party (IFP) in 1990 and of the ANC, although other parties involved included the Pan-African Congress (PAC), South African Communist Party (SACP), and right-wing groups, such as the Afrikaner Weerstandsbeweging (AWB, or the Afrikanter Resistance Movement). However, as the transition to democracy progressed, ever more evidence emerged of the deliberate promotion of violence by members of the security forces or the KwaZulu government. In KwaZulu and Natal, violence peaked before the elections at 429 recorded deaths in political conflict during the last two weeks of March and first two weeks of April 1994, reported by the Human Rights Committee of South Africa(HRC), a nongovernmental organization monitoring human rights and political violence.26

Although violence between supporters and members of different political parties has virtually ended in most parts of the country since the elections, it has continued in KwaZulu-Natal, now a single region incorporating both the former homeland and the white province under the new structures of provincial government. Fighting between supporters of the ANC and the IFP continues in the province at levels which merited headlines during the 1980s, but are now apparently regarded by the media as "normal." As recorded by the Human Rights Committee, the average monthly death toll from political violence in KwaZulu-Natal was at least seventy-five for the first eight months of 1995. Some monitors place the figures even higher.

The participants in political violence, as in criminal violence more generally, are largely men. Men also form a majority of those killed in political violence. Nevertheless, a number of political massacres have included indiscriminate killings of the elderly, women and children: for example, of twenty-three people killed at the Uganda squatter camp at Umlazi, Durban, on March 13, 1992, twenty-two were women and children. In other cases, women activists have been targeted. Moreover, the victims of political violence include not only those killed and injured, but also the displaced. In rural KwaZulu-Natal, where a substantial majority of the residents are women,27 the destruction of property and creation of "no-go" areas that has accompanied the violence has had the most severe impact on women and children. As in other conflicts, women and children form themajority of the displaced, most visibly amongst those found in the camps for displaced people that continue to exist in some parts of KwaZulu-Natal. Even where there are no camps - as is the case in most areas, where individuals and families have sought shelter in existing squatter camps or with relatives in the townships or still unaffected villages - it is women who have had to pick up the pieces and attempt to recreate a life with what they can salvage from a burnt or abandoned home.

While no major studies have been undertaken, there is evidence that women have also on occasion been targeted for rape as part of the political conflict. One reason may be that most of the recorded statistics are of deaths only. On the other hand, there are no reports of systematic rape targeted at women believed to support an opposing political party. Nevertheless, the Durban office of the Human Rights Committee of South Africa has recorded a number of rapes apparently committed with a political motive: for example, four rapes in the violence-torn Sundumbili area north of Durban during June and July 1995.28

Among the effects - or possibly causes - of the political conflict has been a reinforcement of a violent and "macho" definition of manhood in the affected communities. One of the consequences of the implementation of the apartheid system was a speeding up of the erosion, begun under colonial rule, of the traditional systems of patriarchy that operated in the pre-colonial societies of South Africa. But while political power and responsibility was taken away, African men retained their dominant role in the family, as breadwinner and head of a household in which women and children deferred to the husband and father. In the 1970s and 1980s, however, rapidly increasing male unemployment prevented many youth from setting up households, both because few women would be prepared to marry a man who could not support them, and because it would be difficult to raise the money to pay lobola, or brideprice. At the same time, rapid urbanization, as apartheid controls broke down, and the increased politicization of young people brought rising expectations and an intensified challenge to the existing order of racial domination.29

While the political uprising of the mid-1980s was based on a number of interlinked causes, the background to the mobilization of "youth" in those protests included the need to reassert masculinity in face of a system that disempowered black men. Violence in support of a political cause offered these young militants known as "comrades" an opportunity to define themselves in an overtly macho manner, when other routes - as breadwinner and head of a household - were denied. Violence as a reaffirmation of manhood has been emphasized particularly within Inkatha ideology - Chief Buthelezi, for example, described the ANC's demand for the banning of the public display of "traditional weapons" such as assegais (spears) as equivalent to "cultural castration."30 But male ANC youth have also defined themselves as explicitly masculine warriors as evidenced by this quote:

Women are ashamed to hit someone or to kill them.... Girls don't feel ashamed to be attacked by Inkatha. And there are no girls doing the attacking, only men. And we go out as men to meet these men. We are men. How can we tolerate being attacked by men? Boys have got the desire not to be shamed in this way.31

In some rural areas of South Africa, violence against women also includes the phenomenon of witchcraft killings, which are most often directed against women, although men are also on occasion attacked after accusations that they have practiced black magic. At least ninety-seven women and forty-nine men were killed in Northern Province during the period April 1994 to February 1995, according to police statistics quoted in an interim report published by a commission of inquiry appointed by the new provincial government to investigate witchcraft and ritualkillings in the province.32 All kinds of misfortune, including matters as varied as financial problems, illness, drought or lightening strikes, are blamed on witchcraft, and traditional healers or "witch doctors" may then be paid to search out the individuals responsible. A number of villages have even been created under police protection to house people accused of witchcraft who have fled their homes. While convictions of the perpetrators of these killings have been secured in some cases, in many cases the reluctance of witnesses to come forward prejudices any investigation.

This report does not focus on violence committed against women by state structures. Nevertheless, there is evidence that women are subject to abuse at the hands of the police in particular. During the emergency of the 1980s, many women were detained without trial for political activities, and some were tortured. Political detentions have ceased, and, as in most societies, women form a small minority of those who come into conflict with the criminal justice system: women form less than 3 percent of the prison population. Where they are criminal suspects, however, women may be subject to assault and torture as are men. In a report on police torture published by three South African nongovernmental organizations in April 1995, for example, several cases described torture of women who were criminal suspects: in one case, a woman accepted a R.50,000 (U.S.$14,285) out of court settlement from police in connection with allegations that she had been stripped naked and tortured, including by the use of electrodes placed in her vagina, during the 1992 investigation into a payroll robbery.33 In July 1995, two women served legal papers on the Department of Safety and Security for injuries sustained when they were arrested in the previous year during a strike. One of the women said she had been assaulted, forced to strip naked and do drill exercises, causing unhealed scars from a recent operation to open and bleed.34

Even where they are not directly in conflict with the police, women may be the targets of police violence - often when the police are attempting to locate a relative or partner. The report on police torture cited in the previous paragraph published details of a case in which a number of plainclothes detectives arrived at the house of a woman who had just returned from visiting her husband in the hospital, conducted a search, and demanded to know where "George" was. When she denied knowledge of anyone by that name, she was taken with the detectives in the car, they assaulted her. She was taken to an open field, where her skirt and shoes were removed and something was attached to her feet which caused searing pain. Eventually, she gave her stepfather's address, to stop the torture. After returning to the car, she was threatened with "losing" her two year old child if George was not at the address she had given: at one point, the child, who was with her at the time, was held out of the window.35

Similarly, in a survey carried out by the Women's National Coalition, women in the former homeland of Bophuthatswana reported that women arrested by the police had been sexually abused or raped. Rapes in police cells are occasionally reported in the press. When a police officer has been charged with the offence, workers in advice offices confirm that it is likely that in most cases a victim would not report such an assault, for fear of retaliation or lack of confidence in a constructive response, and thus that the problem is far more widespread than appears from the number of reports.36 No systematic studies have been carried out of the treatment of women in police custody, but the evidence suggests that an effort to halt police abuse of suspects - still common today, despite the political transition - should include a particular focus on abuse of women who are either suspects or potential informants.

One of the legacies of apartheid is that, despite its high level of violence, South Africa is greatly underpoliced. Historically, the police force was required only to protect the interests of the white population and to suppress political activism among the black majority. Accordingly, little attention was paid to the detection and prevention of crime within the black communities. The new government has inherited a police force of approximately 146,000, including uniformed and nonuniformed members and administrative staff, which is responsible for a population of over forty-four million. The former attorney-general for the Witwatersrand, Klaus von Lieres, stated in March 1995 that the nationwide ratio of police is approximately 2.5 per thousand population, against an international norm of three to five per thousand.37 Moreover, personnel and resources are still disproportionately devoted to "white" areas, leaving the most troubled regions even more severely neglected. According to information supplied to Human Rights Watch by the Port Shepstone police station - responsible for maintaining the peace and investigating crime in one of the areas worst affected by political violence - there is a local ratio of approximately 0.75 police to every 1,000 population.

Under the new government, South Africans are also for the first time demanding that the police respond to their concerns by cracking down hard on violent crime. However, the lack of personnel alone means that response times to emergency calls can be unacceptably slow. Individual detectives are required to handle a case load of fifty or a hundred dockets at any one time. Training has in the past not emphasized sound investigative techniques, contributing to a reliance on confessions - often obtained under dubious circumstances - to obtain convictions. Supervision of crime investigation by superiors is often virtually nonexistent, and inexperienced officers are therefore left to handle serious cases on their own. Poor pay and working conditions at junior levels means that well-qualified officers are hard to recruit.

The transition to a new era has been marked by the symbolic renaming of the South African Police Force as the South African Police Service. New police commissioners supposedly untainted by association with the security branch of the old force have been appointed nationally and in each of the nine new provinces. A new ANC minister for safety and security, Sydney Mufamadi, has been appointed to replace the old minister of law and order, and has expressed his commitment to the renewal of the force. Nevertheless, the fact remains that the police leadershipis working with personnel recruited and trained during the era when the police were the front line of repression in the apartheid state. White officers in many areas remain deeply suspicious of the new ANC-led government, and some black officers have also absorbed the norms of the former regime.

Similar obstacles to change are found in all departments of state responsible for the criminal and civil justice systems and the welfare of victims of crime and violence. It cannot be expected that a transformation in the attitude and capabilities of the police, courts, correctional and welfare systems will occur overnight. This report aims to highlight the current deficiencies, while being conscious of the efforts that have been made already, and to suggest further steps to be taken in the future.

Two legal systems are in force in South Africa: civil law, which is largely based on Roman-Dutch law as modified by statute, and customary law. Since the establishment of the colonial state, white, Indian and coloured women have been subject to civil law, while African women have been subject to both civil and customary law, depending on the circumstances. Historically, all women of whatever race have been disadvantaged under South African law; however, as in all other areas of life, Africans were especially disadvantaged.

Moreover, while the legal status of women has significantly improved over the last decade - most recently, the taxation of married women has been put on a equal footing and housing subsidies and other benefits for state employees have largely been equalized - state and traditional authorities continue to discriminate against black women on grounds of both race and sex. In particular, while married women of all races were once regarded as minors without legal capacity in their own right, most married white, coloured and Indian women, while still subject to some inequalities, now have full majority status; African women married under customary law, on the other hand, are still subject to serious legal disadvantages, and in the former homelands those married under civil or customary law may not have benefited from the reforms of the last decade. Since the assumption in South Africa, as in other countries, has been that women would in the great majority of cases enter into a marriage, special legal inequities do not apply to unmarried women: it is therefore the law relating to marriage and the family that affects women's status most seriously, and it is under this law that women have been subject to some of the most blatant discrimination.

A confusing set of overlapping regimes applies to marriage in South Africa, depending on the date a woman was married and the legal system (customary or civil) under which she was married. Furthermore, women's status in marriage is complicated by the fact that not all marriages are given equal recognition: a marriage must be solemnized in accordance with the provisions of the Marriage Act (Act No.25 of 1961) and not "potentially polygamous" in order tohave full legal status.39 This means that marriages according to Muslim or Hindu rites or African customary law may not be fully recognized.40

In Roman-Dutch law, which governs South Africa's civil marriage system, a married woman previously had inferior legal status to her husband, and was subject to his guardianship over her person and property. Since 1984, substantial legislative inroads have been made to this position. Prior to November 1, 1984, married women, with the exception of African women, were automatically married "in community of property" and were subject to the "marital power" of their husbands (unless they had an "ante-nuptial contract" that specified otherwise): that is, the property of the man and women were merged into one, and the husband was the sole administrator of the joint estate. A woman in such a marriage was treated as a minor, unable to enter into contracts that bound the joint household without her husband's consent while her husband, on the other hand, could enter into contracts, including contracts alienating the marital home or other property, without her consent. The law was subsequently changed and marriages undertaken after November 1, 1984- under the Matrimonial Property Act (Act No.88 of 1984)-are no longer subject to male marital power. This act makes both spouses joint administrators of the joint estate and introduces the "accrual system," by which both parties share equally in the profits of the marriage in the event of dissolution. Further legislation in December 1993 finally abolished the marital power in all civil marriages of whatever date.41

African women may marry according to civil rites or customary law. Civil law marriages by African women before December 2, 1988 were governed by the Black Administration Act (Act No.38 of 1927), and were generally "out ofcommunity of property" while retaining the "marital power."42 The Marriage and Matrimonial Property Law Amendment Act (Act No.3 of 1988) altered this position in respect of civil marriages between Africans contracted after December 2, 1988, to include community of property and exclude the marital power. The accrual system applied in these civil marriages only with the standard ante-nuptial contract.

However, the equalization of African women within civil law marriages does not necessarily apply within the former homelands, whether nominally independent or merely "self-governing." Each homeland inherited the statutory provisions in force at the date when they were nominally split from South Africa, which therefore varied in each case. Many then passed separate laws regulating marriage and the family, further confusing the position. The KwaZulu Code of Zulu Law, for example, states that a married woman shall be a major, but subject to the marital power of her husband.43 According to section 229 of the interim constitution, all laws in force in the homelands at the date of coming into force of the interim constitution remain in force until repealed or amended, and many are therefore in conflict with national laws which were amended after the date of creation of the homeland.

Marriages according to African law and custom are not fully recognized by the state, since they are "potentially polygamous" and therefore are regarded as "against public policy." However, partial recognition is given for some purposes, giving African women in customary unions a limited degree of protection.44 But in addition to the formalities required by tradition - notably the payment of lobola, or brideprice - the Black Administration Act set out requirements, including registration, as proof of existence of a customary marriage. Often, this registration procedure is not followed, making it very difficult for African women to claim eventhe limited benefits accorded to them by the state.45 Prior to 1988, a customary marriage was automatically dissolved by a subsequent civil marriage to another person (however, a man was required to declare, subject to criminal penalties, that he was not previously married according to customary law, and if this declaration was false the material rights of his customary wife were protected). Amendments to the law in 1988 reversed this position, so that a civil marriage by a person already married under customary law is now void.

Marriage according to Muslim law is also "potentially polygamous" and therefore not recognized under the Marriage Act (although there are some limited statutory protections similar to those applicable to customary marriages). On the other hand, Muslim personal law does not subject a wife to any equivalent to the "marital power." Hindu marriages are recognized only if solemnized by a priest who is an officially appointed "marriage officer." As a consequence, women in Muslim and Hindu marriages generally have no claim to support or maintenance, their children are considered out-of-wedlock and therefore without rights to inheritance in the absence of a will.46 In addition, cohabitation is not recognized by the law as giving any claims on the other partner, however long the cohabitation has lasted, except in very limited circumstances.47

Until December 1993, the husband within a civil marriage was recognized by law as "head of the household." Until March 1994, when the Guardianship Act(Act No.192 of 1993) came into effect, he was also guardian of any children. Since that date, the parents of children in a civil marriage have joint guardianship and custody of children. If the parties are not married, the woman has sole guardianship over children. Under customary law, the husband (or a male relative, if he dies) has extensive rights over the family, including guardianship and control of the children, if lobola has been paid. Most notably of all, an African woman in a customary union who is living with her husband is deemed to be a minor and her husband deemed her guardian.48

Marriage in South Africa suffers a high rate of breakdown, irrespective of the divisions of race and class.49 Divorce for all civil marriages is governed by the Divorce Act (No.70 of 1979).50 In general, the parties must show the "irretrievable breakdown" of the marriage for divorce to be granted, but a "no fault" system applies, and there is no need to show adultery or similar facts for breakdown to be demonstrated. Most divorces are therefore consensual or undefended. Entitlement to property upon divorce depends on the type of marriage entered into: (1) marriage in community of property entitles each spouse to half the estate after payment of alldebts; (2) marriage under the accrual system entitles each spouse to half the profits (or losses) of the marriage; and (3) marriage out of community of property means that each spouse retains his or her estate. In this last case, women may be entitled to no property of any kind on dissolution of the marriage. In particular, those adversely affected by the law are white, coloured and Indian women married before 1984 without an ante-nuptial contract or after 1984 with an ante-nuptial contract which excludes accrual; and all African women married before 1988 (unless a declaration was made to the magistrate that the marriage should be in community of property) or married with an ante-nuptial contract excluding the accrual system.

The arrangements for civil divorce therefore center on the agreement of a "consent paper" in relation to property of the marriage, which will be made an order of court. The Divorce Act makes provision for the court to divide assets only in the case of marriages contracted with no provision for sharing property before 1984 (for whites) or 1988 (for Africans): in all other cases, the ante-nuptial contract or other regime applies regardless of the financial circumstances of the parties to the marriage and the court has no power to vary the settlement. Therefore, the order of court will usually relate only to maintenance of the ex-wife and the custody and maintenance of any children. Maintenance for the ex-wife can only be claimed if included in the original order and may not be claimed later, for example if financial circumstances change.

Although maintenance payments are enforceable through the maintenance courts, a special division of the magistrates' courts, some studies estimate that as many as 50 percent of spousal maintenance orders may not be paid, and treatment of women in these courts is often unsympathetic.51 Only if there are children which are placed in the custody of the wife is she likely to gain any rights over the matrimonial home. The test for custody of the children is the interests of the child, and in practice custody is usually awarded to the mother. While contests in relation to custody are unusual in the case of children of white, coloured or Indian couples, traditional views of the rights over children granted by the payment of lobola make custody disputes much more common in civil marriages between Africans. Customary marriages may in general be dissolved without going to court, either by mutual consent or by rejection of either party and repayment of lobola if thedissolution is the fault of the wife.52 Only younger children are likely to remain with the mother, since if lobola has been paid children are regarded as belonging to the man.

Although there are no systematic studies indicating the financial status of women after divorce, the indications are that the great majority of women are significantly poorer after the breakdown of a marriage. Property division on divorce is seldom equal: lawyers report the general rule as one third to the woman, two thirds to the man. Women in general are at a severe disadvantage in the labor market, leaving them still highly dependent on men. In cases of civil divorce, they are likely to have custody of any children, and in almost all cases they will have custody of young children who are most dependent on full-time care. Children born out-of-wedlock are in almost all cases in the custody of their mother, and the problem of obtaining some form of financial assistance in keeping the child is therefore a central concern.

The vast majority of all maintenance applications are therefore made for child support. Maintenance orders for child support by the father are made in the maintenance courts and are awarded for one or more minor children irrespective of whether they are born of a civil or customary law marriage or without any marriage. Studies indicate that as many as 70 percent of African children may be born outside of marriage, and the majority of maintenance applications therefore relate to children born out of wedlock. However, the maintenance payments awarded are usually low - even below the official subsistence level and certainly less than the actual cost of keeping a child - and default rates may be up to 85 percent of those cases that actually reach the court. High rates of unemployment mean that many men may be unable to pay sufficient maintenance even if they are willing. Lengthy delays in the application process, high transport costs for trips to court and knowledge of the likely result mean that many women never bother to claim maintenance from the father of their child. In most cases, the mother will therefore be left to fend on her own with such assistance as she can get from her extended family.53

State maintenance grants are available for up to four children born of a civil or customary law marriage, and for one child born out-of-wedlock only. Extensive documentation is necessary for the application to be successful, delays are long, and the woman must have tried and failed to claim maintenance from the father, or have some reason why that is not possible (for example, that he is dead, incapacitated or in prison). The grants are small - again, substantially less than the cost of supporting a child - and in addition are awarded in a wholly racially discriminatory fashion: a 1987 study of national figures showed that 37 percent of eligible white children received such grants; 36 percent of Asian children; 24 percent of coloured children; and only 0.3 percent of African children. Although racial classification of children is a thing of the past, the figures remain similarly skewed today.54

In case of the death of her husband, a woman married under civil law has, at minimum, a claim for maintenance and support against the estate, even if a will has left all the property elsewhere.55 Otherwise, inheritance depends on the marital regime: a woman married in community of property is entitled to half the estate, the other half devolving according to the will or the rules of intestate succession; similarly, a woman married under the accrual system will be entitled to half the profits of the marriage. If there is no will, the surviving spouse inherits the whole estate if there are no children; or the estate is split, if there are children. Women married under customary law, or African women married under civil law but out of community of property (most marriages before 1988), are subject to the customary law rules of inheritance and have in general no right of inheritance from theirhusbands.56 The male heir becomes the guardian of both women and children, and in some areas may also inherit the woman as wife. The woman has a claim over the male heir for maintenance and support, but is largely dependent upon his good will for her livelihood. Since many customary law marriages are not formally registered, even those rights that do apply to women under customary law may not be enforceable through the courts.

"Customary law" in most African countries is a peculiar hybrid, based partly on the practices of the pre-colonial African societies as recorded by the colonizers, and partly on the encoding, amendment and adaptation of those recorded practices as legislated by the colonizers - either in an attempt to eradicate "primitive" or "unchristian" practices, or in order to facilitate colonial needs such as the labor supply. It has been described as "neither customary nor law."57 In South Africa, as in other African countries, the official recording of "customary law" took place largely in the context of the relationship between the (male) colonial authorities and (male) African ruling elites and perhaps had the most significant impact in the sphere of the family. Variable traditional practices later became rigid rules of "customary law" enforced by white administrators and judicial officers in the colonial and later apartheid legal system.58 In some cases, customary law reflected closely precolonial (and even contemporary) African views on the nature of the family and marriage. In other cases, the white courts' view of African practices became accepted as the correct interpretation of the position of women in African society. For the most part, customary law was not subsequently adapted toaddress the rapid changes in African life brought about by the migrant labor system and increasing urbanization.

Furthermore, the system of customary law as applied in the courts has in many areas failed to challenge certain discriminatory aspects of attitudes towards women. The importance of women as childbearers leads to a complex of rules relating to infertility, including the duty of a younger sister to take the place of a wife who is unable to bear children (the sororate), and the duty of a wife to bear children by a relative of her husband, should he die while she is still fertile (the levirate). Similarly, the institution of lobola, or brideprice, can reinforce the view of women as the property of their husbands: in traditional practice, in which polygamy was the norm, the number of wives a man had - and had paid cattle for - was an indication of his wealth.59

The continued existence of dual civil and customary marriage systems prejudices a substantial number of African women, especially rural women who are most likely to be married according to customary law. The overlap and occasional conflict of the two systems means that equal protection of the law is not provided to women, especially in relation to inheritance and property - and women may even be put in conflict with each other. For example, many African men, especially migrant laborers, have wives under both systems: one according to civil law, in the urban area where they work and live for most of the year, and the other according to customary law in the rural areas, usually the "homeland" of which they were previously designated residents or citizens.60 While the legal position for women married under customary law in these circumstances has improved in some respects since 1988 because a subsequent civil marriage is void, they remain in practice ata significant disadvantage compared to women married under civil law; especially if, as is often the case, their customary marriages have not been formally registered.

On April 26, 1994, the first day of the election that installed the government of national unity, a new "interim" constitution came into effect which for the first time gives South Africans the protection of a justiciable bill of rights. Chapter 3 of the interim constitution sets out a list of fundamental rights. Section 8 provides that:

(2) No person shall be unfairly discriminated against, directly or indirectly, and, without derogating from the generality of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language.

With reference to the potential conflict between customary law and the new constitution, section 181 of the constitution provides that: "Indigenous law shall be subject to regulation by law." Moreover, according to "constitutional principles" agreed between the parties to the pre-election negotiations, the final constitution adopted by the constitutional assembly must include provisions to the effect that, "[i]ndigenous law, like common law, shall be recognised and applied by the courts, subject to the fundamental rights contained in the Constitution and to legislation dealing specifically therewith."61

As a result of the new legal framework that has been established by the constitution, the discriminatory legal provisions of the current system of law applicable to women, especially African women, are likely to be subject to challenge in the courts.

International law requires states to show due diligence in preventing and responding to human rights violations. With respect to violations of bodily integrity in particular, governments have a duty to prevent, investigate and prosecute such abuse, including cases in which the perpetrator is a private citizen. Where states do not prohibit such abuse or routinely fail to respond to evidence of murder, rape or assault of women by their intimate partners, they send the message that such attacks are justified or, at a minimum, will not be punished. In doing so, states fail to take the minimum steps necessary to protect their female citizens' rights to physical integrity and, in extreme cases, to life. To the extent that this failure reflects discrimination on the basis of gender and/or race, it also constitutes a violation of the state's international obligation to guarantee equal protection of the law.62

The Declaration on the Elimination of Violence Against Women, adopted by the U.N. General Assembly in 1994,63 calls on states to "pursue by all appropriate means and without delay a policy of eliminating violence against women" and, amongst other things, to "exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violenceagainst women, whether those acts are perpetrated by the State or by private persons."64

Women victims of violence have an equal right to the enforcement of the law as any other victim of violence, and a pattern of non-enforcement amounts to unequal and discriminatory treatment. Article 26 of the International Covenant on Civil and Political Rights (ICCPR), which South Africa has signed but not yet ratified, guarantees that:

The U.N. Human Rights Committee, which monitors the compliance of states parties with the ICCPR, has further held that the state not only has a duty to protect its citizens from such violations, but also to investigate violations when they occur and to bring the perpetrators to justice.65

The provisions of the ICCPR were strengthened in 1979 by the adoption of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). CEDAW prohibits discrimination against women, defined as

States which are parties to the convention undertake "to pursue by all appropriate means and without delay a policy of eliminating discrimination against women," which includes the duty "to refrain from engaging in any act of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;" and "to take all appropriate measures, including legislation, to modify or abolish existing laws, customs or practices which constitute discrimination against women."67

In 1992, the Committee on the Elimination of All Forms of Discrimination Against Women, established under CEDAW, adopted a general recommendation and comments which set out how CEDAW covers violence against women and what governments should do to stop such violence.68 First, the committee stated that thegeneral prohibition of gender discrimination "includes gender-based violence - that is, violence which is directed against a woman because she is a woman or which affects women disproportionately. It includes acts which inflict physical, mental, or sexual harm or suffering, threats of such acts, coercion or other deprivations of liberty."69 Secondly, the committee confirmed that violence against women constitutes a violation of human rights whether the perpetrators are state officials or private individuals, noting that: "States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and to provide compensation."70

In order to fulfil their recommendations under CEDAW, the committee found that states must take all measures necessary to provide effective protection to women, including:

(b) Preventive measures, including public information and education programmes to change attitudes concerning the roles and status of men and women;

(c) Protective measures, including refuges, counseling, rehabilitation and support services for women who are the victims of violence or who are at risk of violence.71

In 1994, the United Nations Commission on Human Rights appointed the first Special Rapporteur on Violence against Women. The special rapporteur is tasked to carry out work on violence against women, its causes and consequences, and to recommend ways of eliminating such violence. The special rapporteur's first report set forth the international legal framework condemning domestic violenceand detailed actions that were currently being pursued by governments to reduce the occurrence of domestic assault. With regard to state responsibility, the rapporteur wrote:

In the context of norms recently established by the international community, a State that does not act against crimes of violence against women is as guilty as the perpetrators. States are under a positive duty to prevent, investigate and punish crimes associated with violence against women.72

The body of international human rights law and the evolving international consensus clearly acknowledge state responsibility for accountability of abuses by private actors. It now remains for the South African government to uphold its international obligations and to summon the political will to end impunity for perpetrators of domestic violence and rape.

There are no reliable statistics on the numbers of violent attacks on women in South Africa. The reported figures are already extraordinarily high, but they are certainly only a small percentage of the total. Incidents of domestic violence and abuse are likely to be most seriously under-reported, but even rape is reported in only a small minority of cases. Moreover, while the police do record the numbers of rape cases reported to them, no official statistics exist in the case of domestic violence. Even when women do complain to the police of assault at the hands of their partners, the authorities do not distinguish between these cases and complaints of assault generally.

Indifference and hostility on the part of the police and judicial authorities have made women reluctant to report violence against them, whether domestic violence or rape. The apartheid policies of the past have instilled a strong suspicion and distrust of the police and judicial system, particularly among black women. Although the new national police commissioner has pledged to transform the police force into a service that will fulfil the needs of the community, this commitment has yet to have any discernible effect on the manner in which women who report violence are treated by the police.

Social stigma and fear of reprisal further deters women affected by these crimes from coming forward. Raped and battered women are often ostracized by their families and communities if they report what has happened to them. Aware of the discriminatory manner in which the justice system will likely handle their claims, many women do not believe that reporting their cases is worth potential humiliation in their communities.

What is certain, however, is that South African women, living in one of the most violent countries in the world, are disproportionately likely to be victims of that violence.

South African women of all races and income levels face abuse from their partners. However, because police statistics do not distinguish domestic violence cases from other assaults and no systematic nationwide surveys have been carried out to assess the extent of domestic violence, the problem is difficult to precisely quantify. South African organizations working with battered women have attempted to estimate the scope of such violence by extrapolating from their caseload and surveys. They believe that a substantial number of women face domestic violence on a regular basis.

Rape Crisis estimated in 1992 that one in every three women was assaulted by her male partner.74 The Women's Bureau estimates that approximately one in four women is abused by her partner.75 The Advice Desk for Abused Women estimates that one in every six women is regularly assaulted by her partner, and that at least one in four women is forced to flee at some time because of a life threatening situation in her home.76 The organizations People Opposing Women Abuse (POWA) and Coordinated Action for Battered Women also estimate that one in six women is abused by her partner.77 Research carried out in Soweto in 1994 found that one in three women attending a clinic for any reason had been battered at some time by her husband or boyfriend.78 A recent survey conducted by the government-funded Human Sciences Research Council found that 43 percent of 159 married women surveyed in the Cape Town metropolitan area had been subjected to marital rape or assault.79 Thirty-eight percent of women responding to a questionnaire issued by the Women's National Coalition reported that they knew of a woman who had been battered.80

The results of two surveys in the Cape Town metropolitan area and adjacent rural areas carried out in 1990 and 1991/92 found that violence in the home - not necessarily between spouses or partners - represented one third of all interpersonal violence. In both surveys, while men were in general twice as likely as women to be injured in a violent assault outside the home, in the home men and women were affected almost equally. The most likely place for a woman to be assaulted is at home.81 Another survey of all assault patients treated at the Cape Town Groote Schuur hospital during one week in 1991 found again that one third of those treated had been assaulted in the home, and that the distribution of assaults in the home was roughly equal between men and women. Eighty-four percent of those assaulted at home knew their assailants, and of those, 24 percent were assaulted by a spouse or partner. Significantly, the great majority of these were women: four times as many women as men treated for assault-related injuries in the home had been assaulted by a partner.82

Anecdotal evidence appears to confirm these figures. In a set of interviews conducted in Natal townships in the late 1980s, for example, young men and women referred to the "common practice of forced sex," and accepted violence as a normal part of a relationship between a man and a woman. As a consequence, some of the young women said that they would not marry: "In marriage there are too many rules. Husbands tend to beat their wives and scold them." Others accepted violence simply as a necessary evil of having a boyfriend: "Of course I don't like it when my boyfriend beats me. However there is no point in leaving him. I will probably just find someone worse."83 Interviews conducted on a less systematic basis by Human Rights Watch with women and advice workers repeatedly supported these findings: a man is seen as necessary, especially in the rural areas, to have any hope ofeconomic security, and a degree of violence in a male-female relationship is frequently accepted as normal and inevitable.

The difficulty in determining the exact extent of the problem of domestic violence is increased by the fact that most women abused by their partners do not seek help outside an informal network of family and friends. A 1993 survey of 111 women found that 50 percent sought assistance from their extended family; 22 percent went to friends or neighbors; 12 percent went to the church; 8 percent went to street committees or councils; and 2 percent went to social workers. Only 6 percent went to the police.84 A survey conducted by the Advice Desk for Abused Women and the National Women's Coalition of 10,697 women (with a mean of 8.2 years abuse by their partners) found that their reluctance to report abuse to the police and government legal and social services stemmed directly from their negative experiences with police; the inadequacy of the legal system in dealing with domestic violence; and the fragmentation of social services.85

The reluctance of battered women to seek legal remedies stems from a complex number of reasons, including among others, distrust of the legal and law enforcement system, economic dependence, fear of retaliation, shame, self-blame, children or even love. The traditional values prevailing in all sections of South African society reinforce the attitude that "wife-beating" is a private affair, and to complain to the police is therefore to exhibit disloyalty and invite ostracism. One woman who spoke at a focus group organized by the Women's National Coalition had internalized societal views to such an extent that she saw herself as a child, who should therefore be subject to physical punishment: "a man should beat you up if you deserve it."86 Battered women often want only the abuse to end, not the relationship, and are therefore reluctant to have recourse to official channels of redress, which often increase the likelihood of estrangement.87

All the organizations working to assist battered women note that domestic abuse takes place across race and class lines. As one report notes:

A study of sexual harassment on the Cape Town University campus, for example, reported the testimony of a white woman living in residence abused by her partner:

The lack of official statistics relating to partner abuse, however, mean that no statistical studies exist to indicate the likely profile of a batterer, and which groups of women may be most at risk.90

The types of abuse which South African women face in the home are the same as those faced by women the world over. They include verbal abuse, in whichthey are humiliated and degraded verbally by their partners; emotional abuse, in which they are threatened, for example with violence, economic deprivation or with the withholding of access to their children; and physical violence, which takes many forms, ranging from restrictions on freedom of movement, to hitting, choking, burning, stabbing, and even the use of electric shocks. In a 1993 study carried out in Alexandra township, it was found that physical injuries had been inflicted on women by a variety of means, from fists to weapons such as knives, bricks, the traditional knobkerrie (knob-ended stick), bottles, hammers, axes and screwdrivers.91

The same study found that the most common injuries requiring hospitalization were fractures of the head, limbs, sternum and ribs, followed by scalp and facial lacerations as well as penetrating chest wounds involving the lungs. In addition to the physical injuries sustained from such abuse, battered women often develop somatic symptoms such as headaches, backaches, fatigue, abdominal and pelvic pain, recurrent vaginal infections, sleep and eating disorders, sexual dysfunctions and other signs of moderate or severe depression.92

In the worst cases, violence against women by their partners results in death. A study of 115 inquests into the deaths of women in the Johannesburg magisterial district during 1994 found that twenty-nine, or 25 percent, related to homicide (37 percent related to accidental injury, including motor vehicle accidents). Of the homicides, ten women were killed by their partners and in another two cases the partner was the main suspect: a total of 41 percent. In twelve cases the suspect was unknown. The same study surveyed newspaper reports of homicides during 1993 and 1994 and identified forty-five cases in which women had been killed by their partners.93

Over the past decade, the numbers of reported rapes have risen dramatically.94 The rising figure is due both to increased reporting and an increase in sexual violence against women; those working in the field believe that violent crime is generally on the rise.95 From a total of 9,365 reported cases in 1980, the police received 27,056 reports of rape and attempted rape in 1993.96 During 1994, 32,107 cases were reported, an increase of 16 percent on the previous year: eight-eight rape cases, on average, are reported each day, a yearly rate of 149.5 rapes perhundred thousand population.97 Twenty-two percent of women responding to the Women's National Coalition questionnaire indicated that they knew someone who had been raped; most said that no action had been taken in response.98 The figure for reported rapes of children rose by almost 60 percent in 1994 - from 4,736 cases in 1993 to 7,559 cases in 1994; between January and April 1995, 2,809 cases of child rape were reported.99

Despite these figures, rape continues to be one of the most under-reported - and therefore unpunished - crimes, according to the South African Police. The police estimate that for every rape reported to them, another thirty-five go unreported; that is, reported cases make up only 2.8 percent of all rapes, giving a total figure of approximately one million rapes a year.100 At the other end of the scale, one survey concluded that 45 percent of rape cases are reported; another found that 27 percent of sexual assaults are reported.101 The conclusion is that there are no reliable figures, or even good estimates, of the number of rapes committed in South Africa. It is clear, however, that the figures are extremely high and that rape constitutes an urgent concern for most South African women.

Unlike the victims of domestic abuse, recorded victims of rape are concentrated among particular groups of women: the poor and disadvantaged.102 According to the South African police, an overwhelming 95 percent of rapes are reported by black women.103 Sixty-five percent of rapes reported in Johannesburg, Alexandra and Soweto during 1992 occurred in Soweto.104 In the police districts of the Cape Peninsula in 1992, the Athlone district (which includes the African townships of Guguletu, Khayelitsha, Langa and Nyanga) accounted for 49 percent of the rapes reported.105 In the Cape Town metropolitan area during 1990, 93.6 percent of women treated at state and private hospitals for injuries resulting from violent attacks (irrespective of the location of the attack or the woman's relationship with the attacker) had an income of R.1,000 (U.S.$285) or less per month; only 1.7 percent had an income of R.2,000 (U.S.$570) or more.106 This discrepancy can be explained in part by the fact that low-income women tend to take public transportation or walk longer distances, live in more crime-ridden areas, and have jobs which often require them to leave or return home when it is dark outside.

The Hillbrow medico-legal clinic, which serves the inner-city and suburban police districts of Johannesburg and Johannesburg North, found, in a 1992 study of 584 rape cases reported to the South African police, that 71 percent of the victims, and 78 percent of the perpetrators, were black, although the 1991 census recorded three times as many white women as black women in the area. In the Johannesburg inner city area a large proportion of rapes occurred while women were traveling to and from work. In many cases, women were abducted with the threat of physical harm, and often at gun point. Reported rape in the predominantly white suburbs was far less common and occurred most often of older women in conjunction with housebreaking and theft. In 80 percent of the total number of cases, the rapist(s) were unknown to the woman. However, rapes of girls under the age of sixteen years were usually perpetrated by men known to them - family or friends - or by strangers who enticed or abducted them. Sixty-five percent of the women were raped by one male, and 34 percent were gang-raped. The Hillbrow survey also found that by far the majority of rape victims fell between the ages of seventeen to twenty-five years. A study conducted at the medico-legal clinic in Soweto, however, found that 75 percent of rape victims treated were sixteen years and younger.107 By comparison, a spokesperson for the police in 1994 noted an increase in attacks on elderly women and stated that in half the reported cases of rape women knew their attackers.108

While detailed national statistics on the profile of rape victims are not collected by the police services, even less is known of the profile of rape perpetrators. Disturbingly, however, persons aged twenty years and younger accounted for 40 percent of convictions for rape during the period July 1993 to June 1994; by comparison, in cases of common assault young persons accounted for only 15 percent of convictions, and in cases of aggravated assault 21 percent.109

The incidence of rape is not evenly spread throughout the country: while the average yearly rate per hundred thousand population was 149.5 across South Africa in 1994, the rate in each police region varied from 188.7 in Natal to 101.3 in the Eastern Transvaal. As would be expected, the rate in metropolitan Johannesburg and Soweto was a high 193.1 per hundred thousand, but urban areaswere not consistently the worst affected: within Natal, the rate in metropolitan Durban was 153.2 and in the remainder of the province 219.9 per hundred thousand.110 In general, as noted above, reported rapes appeared to reflect overall levels of violence in an area: Natal, for example, is also the region most seriously affected by political violence.

In the black townships, the dense population, the breakdown of the family unit under the stress of apartheid policies, high levels of unemployment and the consequent rise in crime have all contributed to increased levels of violence. Violence directed against young women by armed youth gangs has become a well-known phenomenon.111 Gang rape, sometimes known as "jackrolling,"112 is widespread:

The Cape Town-based Rape Crisis noted that "most of the women Rape Crisis sees are adolescents. The majority of them have been gang-raped."114 There is, in fact, a township saying that "Jackroll is not a crime, it is just a game."115 A Soweto community leader is quoted as saying:

When you leave your child alone in the home she is not safe. And in the street, she is not safe. And in the school she is not safe. There is nowhere that she can walk and be safe. Girls are afraid somebody in a car will stop them and say `get in.' When they walk in the street they are raped by men with guns. Sexual abuse happens so much that some students stop going to school.116

In Soweto, a member of the Jackrollers declared that their aim was to impregnate every female under age twenty-six in the township. A seventeen-year-old student is quoted as saying: "I am afraid of the Jackrollers. They are affecting all of us as girls. We are not safe any more. We can't even walk in the streets without being harassed by hooligans."117 The gangs not only target young women, but even kill them:

Schools have become centers for rapists in the townships to target young women. Lack of security in schools makes these young women vulnerable to attack. University dormitories appear to be as bad. One faculty member told Human Rights Watch that "the women's hostels at university are a haven for rapists."119 The women's hostels in the townships, which house single, working women are also targets for rapists. One woman living in a hostel noted that:

Women who are poor and homeless are also easy targets for gang rape. In Durban at the train station, several hundred women live on the pavement selling wares during the day, and sleeping there in the night. These women are constantly subjected to attacks by young thugs, known as tsotsis, who rob and rape the women. Women reportedly take turns sleeping at the end of the bench outside the station because they know that the woman at the end is the most likely target for rape. Women are also raped when they use two portable toilets located near the settlement. On April 39, 1994, a seventeen year old girl was dragged off and raped by a tsotsis and threatened with death if she told what had happened to her. A few days later she saw him raping another young girl.121 One woman at the Durban station told Human Rights Watch that:

In the former homelands, the lack of basic utilities such as electricity and piped water means that women spend many hours collecting fuel and water. Often, this will mean that they are in the bush away from safer populated areas, where they are vulnerable to attack. Advice workers in the former homeland of KaNgwane, for example, stated that most rapes they knew of were committed while women were away from their homes looking for wood and that the provision of basic utilities would greatly increase women's safety.123

The injuries that women sustain from rape include both genital and non-genital injuries. The 1992 study of rape survivors conducted by the Hillbrow medico-legal center found that almost 40 percent sustained genital injuries. Another 40 percent sustained other injuries included bruising, abrasions, lacerations and fractures.124 Sixty percent of the women were referred to hospital for further care.125 Sexually transmitted diseases are very common in South Africa, and the risk of transmission during rape is high. Although the epidemic has taken some years to reach South Africa, the prevalence of infection with Human Immunodeficiency Virus (HIV) is rapidly increasing and is currently believed to be close to 10 percent of the population.126 It is estimated that the risk of HIV transmission from a single encounter during normal sexual intercourse, if neither party has another sexually transmitted disease and there are no lacerations or other trauma in the genital area, is between one in three hundred and one in five hundred, although woman are significantly more at risk than men. In the case of rape, and especially gang rape, where other sexually transmitted diseases are more likely tobe present and violence and other trauma are probable, the likelihood of infection is significantly higher, although no studies have been carried out.127

Pregnancy is also a risk from rape, and it is estimated that pregnancy will result in approximately 10 percent of rape cases. Abortion, while in general illegal in South Africa, is legal in rape cases, although only with the support of three doctors and a magistrate. The great majority of legal abortions are carried out on white women, who are more likely to have the knowledge and resources to complete the legal process: according to Department of Health figures, during the period 1982 to 1988, 3,261 legal abortions were performed on whites, 257 on Africans, 489 on coloureds and 131 on Indians. Of the 1,027 legal abortions carried out in 1992, only fifty were as a result of rape, although the reported figures suggest that at least 5,807 women would have become pregnant as a result of rape and therefore have been eligible for a legal abortion.128

Many women also suffer acute physical, emotional and behavioral problems after rape, not directly related to physical injuries sustained at the time of the assault. Together, these symptoms are known as Rape Trauma Syndrome (RTS), a type of post-traumatic stress disorder. They may include shock, nausea, insomnia, eating problems, listlessness, crying, nervousness, compulsive washing, poor concentration, mood swings, memory loss, sexual problems, substance abuse and general depression.129 Not all women who have been raped suffer such symptoms; some may suffer them for only a short time, others for years; or symptoms may surface years after the actual rape, for example at the time of establishing a new relationship.

My husband has always abused me. He has a drug and alcohol problem. I stayed because I am Catholic and because we have six children, until he kicked me out. He used to tie me to the bed so I couldn't go out. I wasn't allowed to answer the phone. One time, he beat me so bad, he cracked my head and broke one of my fingers. Another time, he burned me with boiling water. Once he put an electric shock through my fingers. I got a peace order against my husband while I was married, but when they came to the house, the police said all they could do was warn my husband. Since my divorce four years ago, my husband harasses me all the time. He follows me. He steals mine and my children's clothes from the line. He comes around the house in the middle of the night. The police arrested him for trespassing three times, but he was immediately released. The police told me that they could not do anything more since we were divorced. In January [1995], I went to get an interdict and the court clerk told me that they couldn't give me one because `everybody's free to walk the streets and live their lives.' Soon after, he threw a burning towel through the window of the house which burnt the curtains and started a fire. Now he is in prison for two months for damaging property.130

It is a sad testament to the South African judicial and law enforcement system that it is likely to respond more promptly to property damage than to women at risk from their violent partners. While women's organizations do note that the response of police and judicial authorities has recently improved, they stress that situations such as the one described in this testimony are not uncommon.131

In South Africa, as in many other countries, when it comes to male abuse of women the family has been viewed as a private entity. Assault or sexual assaultof a women has been treated as a criminal matter only when committed by a stranger against an obviously "virtuous" woman. In South Africa, however, the official respect for privacy in this context is ironic given the routine violations of any rudimentary concept of privacy by the apartheid state. As part of its program of "separate development" the National Party government regulated the intimate relationships of South Africans to an extreme degree; in particular, by forbidding "interracial" sex or marriage and by preventing, through the enforcement of a system of passes designed to prevent black settlement in "white" areas, most African men and women from sharing a normal family life. Nevertheless, reflecting the patriarchal character of the apartheid ideology, the state did not see fit to intervene within the family in order to protect the rights of women of any race.

Consequently, the police and judicial system treat complaints by battered women differently from other assault complaints. Those South African women who have been assaulted by their partners and turn to the state structures for protection and assistance often report unsympathetic or hostile treatment at the hands of police, court clerks and prosecutors. Frequently, police and court clerks are unaware of the law and misinform or turn away women. In other cases, the police are well-aware of the law, but choose not to respond promptly and decisively. A common experience is that police either fail to respond to calls for help or merely warn abusers or refer them to other agencies. In other cases, police do not understand the complexity of domestic abuse and are reluctan