Abstract
Gender-based violence (GBV) remains one of South Africa’s most pervasive and devastating human rights challenges, despite the country’s progressive constitutional framework and comprehensive statutory protections. South Africa has some of the highest reported rates of femicide and sexual offences in the world, with studies suggesting that many more cases remain unreported.
This article examines South Africa’s legal responses to GBV, tracing the historical neglect of women under apartheid, the evolution of constitutional protections, and the adoption of key statutes such as the Domestic Violence Act and Sexual Offences Acts. It further analyses judicial interpretations that have affirmed state accountability and expanded victims’ rights, while highlighting persistent enforcement gaps, systemic weaknesses, and cultural barriers.
Comparative perspectives from Spain, Rwanda, India, the United Kingdom, and Canada provide insights into possible reforms. The article concludes with recommendations aimed at improving enforcement, strengthening victim support, and promoting societal transformation.
Introduction
Gender-based violence (GBV) has long been described as South Africa’s “second pandemic,” undermining the constitutional promises of equality, dignity, and security of the person.
- The World Health Organization (WHO) estimates that 1 in 3 women globally experience violence in their lifetime.
- In South Africa, the rates are significantly higher:
- 53,000+ sexual offences were reported in 2022/23.
- Femicide rates remain five times the global average.
- Research shows a woman is killed every three hours, often by an intimate partner.
This paradox—progressive laws vs persistent violence—highlights not only enforcement gaps but also cultural barriers and systemic failures within the justice system.
Research Methodology
This article adopts a doctrinal and analytical methodology, focusing on:
- Primary sources: statutes, constitutional provisions, and landmark case law.
- Secondary sources: scholarly commentary, NGO reports, and international instruments.
- Comparative insights: lessons from Spain, Rwanda, India, the UK, and Canada.
Historical and Legal Background
Pre-1994: Systemic Neglect of Women
Under apartheid, the legal system entrenched patriarchal discrimination:
- Women were legally dependent on male relatives or husbands.
- Rape laws were narrowly defined.
- Domestic violence was dismissed as a “private matter.”
For black women, oppression was compounded by race and class. Sexual violence by security forces went unpunished, reflecting the state’s disregard for women’s dignity and rights.
Post-1994: Constitutional Transformation
The 1996 Constitution introduced transformative protections:
- Section 9 (Equality): prohibits gender discrimination.
- Section 10 (Dignity): recognizes every person’s inherent worth.
- Section 12 (Freedom and Security): guarantees freedom from violence and degrading treatment.
The Constitution requires substantive equality, obligating the state to address structural discrimination that enables GBV.
International and Regional Obligations
South Africa has ratified several instruments:
- CEDAW (1995): eliminate discrimination, protect women from violence.
- Maputo Protocol (2004): prohibit harmful practices, ensure protection.
- Beijing Declaration (1995): integrated global approach to GBV.
These commitments demand effective enforcement, monitoring, and survivor redress.
The Current Legal Framework
Domestic Violence Act 116 of 1998 (DVA)
Strengths:
- Broad definition (physical, emotional, psychological, economic abuse).
- Protection orders (eviction, no-contact orders).
Weaknesses:
- Inconsistent implementation.
- Police often fail to inform victims of their rights.
- Some magistrates reluctant to issue orders.
Sexual Offences Amendment Acts (2007; 2015)
Reforms:
- Expanded rape definition (gender-neutral).
- Criminalized child pornography, grooming, trafficking.
- Abolished marital rape exemption.
Weaknesses:
- Conviction rates below 10%.
- Forensic backlogs and poor evidence handling.
- Survivors face invasive procedures and delays.
Protection from Harassment Act 2011
- First in Africa to criminalize stalking and cyber harassment.
- Covers GBV beyond domestic or intimate relationships.
National Strategic Plan on GBV and Femicide (2020–2030)
Goals:
- Prevention through education and awareness.
- Criminal justice system accountability.
- Survivor support (shelters, psychosocial care).
Weakness: delayed implementation, funding shortages, and GBV Council not fully operational.
Judicial Responses and Case Law
Key rulings:
- Carmichele v Minister of Safety (2001): state liable for failing to protect women.
- S v Baloyi (2000): upheld constitutionality of DVA.
- Omar v Government of RSA (2006): confirmed validity of interim protection orders.
- Tshabalala v S (2020): gang rape accountability extended to accomplices.
- Van Eeden v Minister of Safety (2003): state liable for known criminal’s acts.
These cases affirm GBV as a constitutional rights issue requiring state accountability.
Progress Made
- Strong legislative framework (DVA, Sexual Offences Acts, Harassment Act).
- Judicial activism expanding victims’ rights.
- Civil society activism (#TotalShutdown, Sonke Gender Justice).
- National Strategic Plan promoting a whole-of-society approach.
- Alignment with international law (CEDAW, Maputo Protocol).
Persistent Challenges
- Enforcement Gaps: poor police compliance, forensic backlogs.
- Underreporting: fewer than 1 in 9 rape cases reported.
- Secondary Victimization: hostile treatment from authorities.
- Resource Constraints: underfunded shelters, overwhelmed prosecutors.
- Cultural Barriers: patriarchal norms and victim-blaming attitudes.
Comparative Perspectives
- Spain: Specialized GBV courts + victim support services.
- Rwanda: Police gender desks improve survivor trust.
- India: Domestic Violence Act (2005) integrates socio-economic rights.
- UK: Domestic Abuse Commissioner ensures independent oversight.
- Canada: National Strategy emphasizes prevention, intersectionality, and Indigenous women’s protection.
Recommendations
1. Strengthen Enforcement
- Specialized GBV courts and police units.
- Survivor-sensitive training for police/prosecutors.
- Address forensic backlogs with funding + tech.
2. Expand Victim Support
- More shelters (especially rural).
- Long-term psychosocial + economic support.
- Strengthened witness protection.
3. Independent Oversight
- Establish GBV Commissioner or Ombud.
- Monitor state compliance with laws.
4. Use of Technology
- Secure online reporting tools.
- Real-time case tracking for accountability.
5. Cultural Transformation
- Community education against patriarchy.
- GBV awareness in schools.
- Male engagement in prevention programs.
Conclusion
South Africa has built one of Africa’s most progressive GBV legal frameworks, supported by international obligations and judicial enforcement. Yet, weak implementation, lack of resources, and entrenched patriarchy undermine progress.
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