Authored By: Kwanele Msibi
University of the Western Cape
INTRODUCTION
South Africa’s legal framework is rich with statutes aimed at protecting vulnerablepopulations, particularly survivors of gender-based violence (GBV), children, andmarginalized communities. Yet, the persistent failure of these laws to produce meaningful change reveals a deeper constitutional crisis. This article critically examines the gap betweenstatutory intent and practical enforcement, arguing that the mere existence of protectivelegislation does not guarantee justice. The term “falling statute” reflects a systemicbreakdown: laws that are constitutionally sound in theory but ineffective in practice. Despitethe Constitution’s commitment to dignity, equality, and life, vulnerable groups continuetoexperience harm due to poor implementation, lack of accountability, and institutional inertia. This failure amounts to a betrayal not of the law’s text, but of its constitutional promise. TheDomestic Violence Act 116 of 1998 and the Children’s Act 38 of 2005 are two such laws that promise safety, dignity, and justice. Yet, despite their progressive language and constitutional alignment, these statutes often fail in practice. Through legal analysis, case law, andstatutecritique, this article explores how statutory protections collapse under weak enforcement mechanisms, under-resourced institutions, and a justice system that often prioritizesprocedure over people. It calls for a shift in legal culture, a move beyond formal compliancetoward substantive justice rooted in constitutional values.
CRITICALANALYSIS
The Domestic Violence Act 116 of 1998 was introduced to protect victims of gender-basedviolence, especially in cases where abuse happens within the home.1 It allows survivorstoapply for protection orders, gives police the power to intervene, and offers access tolegal remedies. On paper, the Act supports key constitutional rights such as dignity, freedom, andsafety from violence. But in reality, its enforcement has been weak, slow, and oftenharmful to those it was meant to protect. Section 7 of the Act gives courts the authority toissueprotection orders that stop abusive behaviour.2 Section 8 allows police to arrest anabuserwithout a warrant if they break the terms of the order.3 These sections are meant toprovidequick and effective protection. Yet survivors often face serious obstacles. Police maytreat domestic violence as a private issue and refuse to act, even when protection orders areviolated. Court processes are slow, forcing survivors to wait while abuse continues. Support services like shelters, counselling, and legal aid are underfunded and hard to access. Manysurvivors also face secondary victimization they are blamed, doubted, or pressured toforgivetheir abusers. This undermines the purpose of the law and leaves survivors feeling unsafeandunsupported. The failure to enforce the Act properly reveals a deeper problem: aconstitutional betrayal. The law promises protection, but without strong implementation, it becomes a hollow promise. Vulnerable people are left to navigate a legal systemthat seemshelpful on the surface but is, in practice, unresponsive and indifferent. This failure is not just procedural; it is constitutional. In S v Baloyi 2000 (2) SA 425 (CC), the Constitutional Court affirmed that the State has a duty to protect individuals from private violence under Section12.4 Yet, the gap between legal promise and lived experience remains vast. The DomesticViolence Act, without proper enforcement, becomes symbolic rather than substantive.
On the other hand Children’s Act 35 of 2005 was created to protect children and promotetheir well-being, in line with Section 28 of the Constitution.5 Section 9 emphasizes that thebest interests of the child must be the most important consideration in any matter involvingchildren.6 Section 150 of the Act also outlines when a child is considered in need of careandprotection, such as in cases of abuse, neglect, or abandonment.7 On paper, the Act isprogressive and rights-based. It gives children the right to be heard, to receive care, andtobeprotected from harm. But in practice, many children continue to suffer because the lawis not properly enforced. Social workers are often overwhelmed and under-resourced, whichleadsto delays in responding to cases. Schools, clinics, and police do not always work together, meaning warning signs are missed and children remain in unsafe environments. Manychildren do not have access to legal representation, especially in custody disputes or whenthey are in conflict with the law. Even though the Act says children should be involvedindecisions that affect them, their voices are often ignored in courtrooms and care proceedings. This failure to implement the Act properly is not just a technical issue; it is a constitutional betrayal. The law promises protection, but without strong systems and proper support, thosepromises mean little. Children are left vulnerable, and the rights guaranteed to thembytheConstitution are denied in practice. This disconnect is deeply troubling. In Centre for ChildLaw v Minister of Justice 2009 (6) SA 632 (CC), the Court ruled that mandatory sentencing laws for children conflicted with their constitutional rights.8 Similarly, Mv The State 2007(2)SACR 539 (CC) emphasized the need to consider children’s well-being when sentencingprimary caregivers.9 These cases show that while the judiciary tries to uphold constitutional values, the statutory system often fails to deliver.
SUGGEST WAY FORWARD
The failures of the Domestic Violence Act and the Children’s Act are not simply technical errors; they reflect deeper moral and constitutional shortcomings. These laws were createdtoprotect vulnerable groups, yet their poor implementation has left many survivors and childrenwithout real support. To persuade the country, we must move beyond pointing out problemsand begin building meaningful solutions. A new path forward requires several key changes. First, enforcement must be strengthened. Police officers and court officials needpropertraining to handle cases of gender-based violence and child protection with urgency andcare. There must also be clear systems to hold officials accountable when they ignore or mishandlecomplaints. Fast-track procedures for protection orders and child welfare hearings shouldbeintroduced to prevent delays that put lives at risk. Second, support services must be expanded. Shelters, counselling, and legal aid, especially in rural and underserved areas, needproperfunding. Strong coordination between schools, clinics, police, and social workers is essential to ensure children do not fall through the cracks. Third, survivors and children must be placedat the center of legal processes. Their voices should shape outcomes, not be treatedasanafterthought. Legal representation and trauma-informed support must be made availabletohelp them navigate the system safely and with dignity. Fourth, legislative reformis needed. Outdated or vague sections of both Acts must be reviewed and updated to reflect current realities and international standards. The law must clearly require state actors to act whenrights are at risk, not leave it to discretion. Finally, public education and cultural changearevital. National campaigns should help communities understand the seriousness of domesticviolence and child abuse, encouraging people to report it and support survivors without stigma. Statutes must be more than words on paper. They must be enforced, understood, andupheld with integrity. The Constitution demands action, not just promises. If we aretopersuade the country, we must rebuild our legal system in a way that truly protects thevulnerable. Only then will the falling statute rise again, not as a broken promise, but asaliving commitment to justice, dignity, and safety for all.
CONCLUSION
The Domestic Violence Act and the Children’s Act were crafted to protect the vulnerableanduphold the constitutional values of dignity, equality, and life. Yet, as this article has shown, the gap between statutory promise and lived experience remains wide. Survivors of gender-based violence face delayed justice, under-resourced support systems, and secondaryvictimization. Children, despite being at the heart of constitutional protections, continuetosuffer due to weak enforcement, poor coordination, and exclusion fromdecisions that shapetheir lives. Case law from S v Baloyi to Centre for Child Law v Minister of Justice revealshow courts have tried to uphold constitutional principles in the face of statutory failure. But judicial intervention alone cannot repair a structurally indifferent system. The lawmust bemore than symbolic; it must be enforced with urgency, compassion, and accountability. Topersuade the country, we must demand a legal culture that protects survivors and childrennot just in theory, but in practice. This means strengthening enforcement, investing insupport services, reforming legislation, and shifting public attitudes. Only then can we transformfalling statutes into living instruments of justice. The Constitution calls us to act not withwords alone, but with systems that protect, empower, and restore.
BIBLIOGRAPHY
CASE LAWS
M v The State 2007 (2) SACR 539 (CC).
Centre for Child Law v Minister of Justice 2009 (6) SA 632 (CC). S v Baloyi 2000 (2) SA 425 (CC).
LEGISLATION
Domestic Violence Act 116 of 1998.
Children’s Act 38 of 2005.
1 Domestic Violence Act 116 of 1998.
2Domestic Violence Act 116 of 1998, s 7.
3 Domestic Violence Act of 1998, s 8.
4 S v Baloyi 2000 (2) SA 425 (CC).
5 Children’s Act 38 of 2005.
6 Children’s Act 38 of 2005, s 9.
7 Children’s Act 38 of 2005, s 150.
8 Centre for Child Law v Minister of Justice 2009 (6) SA 632 (CC).
9 M v The State 2007 (2) SACR 539 (CC).
