Authored By: Manlatse Doctor Murudu
University of South Africa
Abstract
Domestic violence remains one of South Africa’s most pressing human rights challenges. This article critically examines the criminal law response to gender-based violence (GBV) and domestic violence in South Africa. Drawing from legislation, case law, and academic literature, it analyses the effectiveness of the Domestic Violence Act 116 of 1998 and related statutes within a constitutional and human rights framework. The article further explores challenges in enforcement, the role of the South African Police Service (SAPS), and proposes legal reforms to strengthen victim protection and accountability for perpetrators.
Keywords: Domestic Violence, Gender-Based Violence, Human Rights, Criminal Law, South Africa, SAPS.
- Introduction
Gender-based violence (GBV) is one of the most severe violations of human rights in South Africa. Despite comprehensive legislative frameworks, victims — predominantly women and children — continue to face abuse, with limited access to justice. The Domestic Violence Act 116 of 1998, the Sexual Offences and Related Matters Amendment Act 32 of 2007, and the Children’s Act 75 of 2008 were introduced to combat GBV through the criminal justice system.1According to the World Health Organization (WHO), one in three women globally experience physical or sexual violence in their lifetime.2In South Africa, GBV undermines key constitutional principles such as dignity, equality, and freedom.3 The persistence of high levels of domestic violence reveals shortcomings in the state’s enforcement of human rights obligations.
- Problem Statement
This article examines how South African criminal law addresses GBV and whether available remedies adequately protect victims. South Africa has one of the highest rates of gender-based crimes globally, with 10,818 rape cases reported in the first quarter of 2022.4
GBV extends beyond physical harm to include emotional, psychological, and economic abuse. These acts violate human rights protected under section 7(1) of the Constitution of the Republic of South Africa, 1996, which affirms the state’s duty to “respect, protect, promote and fulfil the rights in the Bill of Rights.”5
The analysis focuses on three core questions:
- Does South African criminal law adequately recognize and address GBV?
- What punishments and remedies are available to victims?
- How can law enforcement and communities collaborate to prevent GBV?
- Legislative and Institutional Framework
South Africa has adopted various statutes to combat gender-based and domestic violence:
∙ The Domestic Violence Act 116 of 1998 defines a wide range of abusive behaviours, from physical to economic and emotional abuse.6
∙ The Sexual Offences and Related Matters Amendment Act 32 of 2007 redefined sexual offences in gender-neutral terms and introduced a National Register for Sex Offenders.7 ∙ The Child Justice Act 75 of 2008 provides mechanisms to protect children from abuse and exploitation.8
Despite this legislative framework, implementation remains a significant challenge. The Special Rapporteur on Violence Against Women (2019) noted that victims often face barriers such as limited access to justice, underfunded shelters, and inadequate police response.9
- The Criminal Law Response and Role of SAPS
The Domestic Violence Act places explicit duties on the South African Police Service (SAPS) to assist victims, including helping them obtain protection orders, access medical treatment, and find shelter.10 Police officers who fail to comply may face disciplinary action.
However, Human Rights Watch reports that SAPS responses to GBV cases are often marked by insensitivity and procedural neglect.11 The SAPS Strategic Plan (2020–2025) identifies GBV as a
“priority crime” and proposes reforms such as specialised Family Violence, Child Protection and Sexual Offences (FCS) Units, as well as improved service delivery and community partnerships.12
Judicial interpretation has also reinforced victim protection. In Omar v Government of the Republic of South Africa and Others (Commission for Gender Equality Amicus Curiae),13 the Constitutional Court affirmed the state’s constitutional obligation to safeguard victims of domestic violence and promote gender equality.
5.Human Rights and Constitutional Protection
The Bill of Rights enshrines human dignity, equality, and freedom as core democratic values.14 Domestic violence directly undermines these rights, violating the right to life and security of the person guaranteed by sections 10–12 of the Constitution.15
The Constitutional Court has consistently recognised the connection between GBV and constitutional violations. As Currie and De Waal note, the protection of dignity and life forms the foundation for all other rights in South Africa’s democratic order.16
Scholars argue that gender-based violence is not only a criminal matter but also a human rights issue. Phiri contends that GBV “cuts across race, class and economic standing, affecting both privileged and vulnerable women,” while Ntlama argues that judicial authority must respond with sensitivity and equality to rebuild public confidence in justice.17
- Findings and Discussion
The legislative framework provides comprehensive protection on paper but fails in practice due to weak implementation, lack of coordination, and limited victim support. Gender-neutral drafting, while aiming for inclusivity, sometimes obscures the disproportionate impact of violence on women.
Institutional fragmentation between the SAPS, the National Prosecuting Authority (NPA), and social services exacerbates these challenges. A coordinated, multi-sectoral response is essential to ensure accountability and effective justice for victims.
- Recommendations
Interdepartmental Coordination: Establish a task force linking SAPS, NPA, social welfare, and NGOs for joint case management.
Increase Funding: Allocate more resources to shelters, counselling centres, and legal aid.
Public Education: Implement awareness campaigns to combat gender stereotypes and promote prevention.
Performance Monitoring: Introduce measurable standards for handling GBV cases across government departments.
8.Conclusion
Domestic violence remains a systemic human rights issue in South Africa. While the legal framework is comprehensive, its effectiveness depends on consistent enforcement, accountability, and inter-agency collaboration. A coordinated, victim-centred approach grounded in constitutional values is essential to reduce GBV and restore trust in the criminal justice system.
9.BIBLIOGRAPHY
1.Books
1.1. Currie and de Waal the Bill of Rights
Currie I and de Waal J the Bill of Rights handbook (6th edn, Juta 2015)
1.2. Snyman, Criminal law
Snyman CR, Criminal law (6th edn, LexisNexis 2014)
1.3 Phiri Gender-based violence and Digital Media in South Africa
Dr Phiri MM,Gender-based violence and digital media in South Africa ( Routledge 2024)
2.Case Law
Omar V Government of Republic of South Africa and Others 2002 (2) SA 289 (CC)
3. Legislation
3.1. Constitution of the Republic of South Africa, 1996.
3.2 Sexual Offences and Related Matters) Amendment Act 32 of 2007.
3.3 Domestic Violence Act of 116 of 1998, as amended.
3.4 Domestic Violence Act 14 of 2021
3.4 The Child Justice Act 75 of 2008
4.Journal
4.1 Nomthandazo, ‘Gender-based violence ignites the re-emergence of public opinion in the exercise of Judicial authority’ [2020] De Jure 286,3.
4.2 Siyanda Dlamini, Madise Makhaye ‘Community Policing as a Panacea of Gender based violence Impasse’ (2023) Sabinet 7-29,25
4.3 Tameshnie Deane, ‘Sexual violence and the limits of laws’ Powers to Alter Behaviour: The case of South Africa’ (2018) Journal of international women’s studies 84-103,3
4.4 Zenani N Nkonzo, Rofhiwa Ntshagovhe, Bekezezala T Mambo, ‘A conceptual framework of gender-based violence and femicide drivers in South Africa’ (12)(5) (2023) IJRBS 315-330,1
4.5 Indiran-Govender,’ Gender-based violence-An increasing epidemic in South Africa’ (20230 South African family practice 1-2,
1 Domestic Violence Act 116 of 1998.
2 World Health Organization, Global Report on Violence and Health (WHO 2021).
3 Constitution of the Republic of South Africa, 1996, s 10–12.
4Indiran Govender, ‘Gender-Based Violence—An Increasing Epidemic in South Africa’ (2023) South African Family Practice 1.
5 Constitution of the Republic of South Africa, 1996, s 7(1).
6 Domestic Violence Amendment Act 14 of 2021.
7 Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.
8 Child Justice Act 75 of 2008.
9 UN Human Rights Council, Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences (2019).
10 Domestic Violence Act 116 of 1998, s 2–3.
11 Human Rights Watch, World Report 2018: South Africa Chapter (2018).
12 South African Police Service, Strategic Plan 2020–2025 (SAPS 2020).
13 Enhance SAPS Training: All officers should undergo mandatory GBV and victim support training.
14 Omar v Government of the Republic of South Africa and Others (Commission for Gender Equality Amicus Curiae) 2006 (2) SA 289 (CC).
15 Constitution of the Republic of South Africa, 1996, ch 2.
16 ibid ss 10–12.
17 Ian Currie and Johan de Waal, The Bill of Rights Handbook (6th edn, Juta 2015) 64.
