Authored By: Swaartbooi Sekho
Swaartbooi Sekho
ABSTRACT:
This article examines South Africa’s legal response to rape and gender-based violence (GBV) through the lens of the constitutional right to human dignity. It evaluates how the Constitution, particularly sections 9, 10, and 12, alongside key legislation such as the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 and the Domestic Violence Amendment Act 14 of 2021, protect victims and promote accountability. The article further analyses judicial interpretations, highlights recent reforms, and suggests ways to strengthen implementation.
- INTRODUCTION:
Rape and gender-based violence (GBV) remain some of the most severe violations of human rights in South Africa. According to recent crime statistics, tens of thousands of rape cases are reported annually, with many more going unreported due to fear, stigma, and distrust in the justice system1.
The South African Constitution of 1996 guarantees every person the right to human dignity, equality before the law, freedom, and security of the person, including the right to be free from all forms of violence2. However, despite a robust legislative framework, including the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (SORMA) and the Domestic Violence Amendment Act 14 of 2021 (DVAA), challenges persist in realising these rights in practice.
- LEGAL FRAMEWORK:
2.1 CONSTITUTIONAL FOUNDATION:
The Constitution establishes human dignity, equality, and freedom as founding values of South Africa’s democracy3. Section 10 explicitly provides that “Everyone has inherent dignity and the right to have their dignity respected and protected”4. Section 12 (1) (c) guarantees the right “to be free from all forms of violence from either public or private sources,” which includes sexual violence5. Moreover, section 9 ensures the right to equality and prohibits discrimination on grounds such as sex and gender6. Together, these provisions impose a positive obligation on the State to prevent, investigate, and punish acts of sexual violence.
2.2 THE CRIMINAL LAW (SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT ACT 32 OF 2007:
This Act was enacted to reform and unify the law relating to sexual offences7. The Act further introduced offences such as sexual assault, compelled rape, and the creation of a National Register for Sex Offenders.
Section 3 defines rape as any act of sexual penetration without consent, regardless of gender or the nature of penetration8. Importantly, SORMA also emphasises victims’ rights to post exposure prophylaxis (PEP), psychological support, and protection from secondary victimisation. This aligns with the constitutional obligation to respect and protect human dignity and bodily integrity.
2.3 THE DOMESTIC VIOLENCE AMENDMENT ACT 14 OF 2021:
The Act strengthens the protection available to victims of domestic and intimate partner violence, recognising that many rapes occur within domestic relationships9. It broadens the definition of “domestic violence” to include coercive control, sexual abuse, intimidation, stalking, and digital abuse10. It also introduces an integrated electronic system for protection orders and enhances inter-departmental coordination between the police, prosecutors, and health departments11.
2.4 INTERNATIONAL AND STATUTORY OBLIGATIONS:
South Africa is a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Maputo Protocol, both of which impose obligations to prevent and punish GBV12. These commitments inform the constitutional duty under section 39 (1) (b) to interpret the Bill of Rights in accordance with international law.
- JUDICIAL INTERPRETATION:
3.1 THE CENTRALITY OF DIGNITY AND EQUALITY:
In S v Chapman, the Supreme Court of Appeal described rape as “a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim.” The Court affirmed that sexual violence violates not only the body but also the constitutional right to dignity and equality13.
Similarly, in Carmichele v Minister of Safety and Security, the Constitutional Court held that the State has a positive duty to protect women from sexual violence. The Court found that failure by police or prosecutors to act on known threats could amount to a breach of constitutional rights to dignity, equality, and security of the person14. This case set a precedent for State accountability in gender-based violence matters.
In S v Baloyi, the Court acknowledged domestic violence as a form of systemic gender oppression and declared that the right to be free from private violence is inherent in section 1215, The Court emphasised that gender-based violence undermines the very values on which the Constitution is founded16.
3.2 CONSENT AND BODILY INTERGRITY:
The Teddy Bear Clinic for Abused Children v Minister of Justice decision expanded the constitutional understanding of sexual autonomy17. The Court held that criminalising consensual sexual activity between adolescents violated their rights to dignity and privacy18.
This case demonstrated the balance between protecting victims and respecting individual autonomy under section 10 and section 12 (2) (b) of the Constitution.
- CRITICAL ANALYSIS:
Despite strong constitutional and statutory protections, South Africa faces deep implementation challenges. Rape survivors often experience secondary victimisation at police stations, during medical examinations, and in courtrooms19. Delays in prosecution, low conviction rates, and inadequate victim support erode trust in the justice system.
While SORMA broadened the definition of rape and improved access to post-assault care, its effectiveness depends heavily on institutional performance. The National Policy Framework on the Management of Sexual Offences introduced under SORMA, which aims to ensure a coordinated response, but inconsistent enforcement across provinces remains a major barrier20. Reports by civil society organisations indicate that many protection orders are delayed or not enforced, exposing victims to ongoing abuse21. These failures amount to systemic violations of dignity. As academic commentators such as Bonthuys and Albertyn argue, the constitutional right to dignity demands both respect and material protection, meaning the State must ensure that legal rights translate into lived safety for women22.
- RECENT DEVELOPMENTS:
In recent years, the South African government has intensified efforts to combat GBV through legal and institutional reforms. In 2021, President Ramaphosa signed three key GBV-related laws:
The Criminal Law (Sexual Offences and Related Matters) Amendment Act (Amendment) Act 13 of 2021 – which strengthens reporting obligations and expands the National Register for Sex Offenders;
The Domestic Violence Amendment Act 14 of 2021 – broadening definitions and protection mechanisms; and
III. The Criminal and Related Matters Amendment Act 12 of 2021 – which tightens bail and sentencing provisions in GBV cases23.
- SUGGESTIONS AND WAY FORWARD:
Enhanced Enforcement and Training: Continuous training for law enforcement officers, prosecutors, and medical personnel on gender sensitivity and trauma-informed procedures is essential.
Victim-Centred Justice: Courts should adopt restorative approaches that prioritise victims’ dignity and participation, including specialised sexual offences courts and survivor support units.
III. Community Education and Prevention: Legal measures must be complemented by education campaigns challenging patriarchal norms that perpetuate sexual violence. IV. Improved Monitoring and Accountability: The State should publish annual reports on GBV prosecutions and outcomes, as part of its constitutional obligation under section 195 to promote transparency.
Integrated Data Systems: The electronic repository introduced under the Domestic Violence Amendment Act should be fully operationalised to track protection orders and offender compliance.
7. CONCLUSION:
Rape fundamentally violates the constitutional rights to dignity, equality, and freedom from violence. South Africa’s legal framework, anchored in the Constitution, The Criminal Law (Sexual Offences and Related Matters) Amendment Act, and the Domestic Violence Amendment Act, provides robust protection on paper. Yet, persistent gaps in enforcement and societal attitudes undermine these guarantees.
BIBLIOGRAPHY:
Books
∙ Artz, L., Fear or Failure: Why Victims of Sexual Offences Withdraw from Cases (University of Cape Town, 2008).
Constitutional Statute
∙ Constitution of the Republic of South Africa, 1996.
Cases
∙ Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC). ∙ S v Baloyi 2000 (1) SA 425 (CC).
∙ S v Chapman 1997 (3) SA 341 (SCA).
∙ Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development 2014 (2) SA 168 (CC).
Legislation
∙ Criminal and Related Matters Amendment Act 12 of 2021.
∙ Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.
∙ Criminal Law (Sexual Offences and Related Matters) Amendment Act (Amendment) Act 13 of 2021.
∙ Domestic Violence Amendment Act 14 of 2021.
International and Regional Instruments
∙ Convention on the Elimination of All Forms of Discrimination Against Women (1979).
∙ Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) (2003).
Journals
∙ Bonthuys, E., “The Personal and the Political: South African Women’s Right to Equality and Dignity” (2008) 24 South African Journal on Human Rights 1.
Reports
∙ Gender Justice Project, Review of the Implementation of the Domestic Violence Act (2022).
∙ South African Police Service, Annual Crime Report 2023/2024, RP 318/2024 (Aug. 28 2024) (S. Afr.).
1 South African Police Service, Annual Crime Report 2023/2024, RP 318/2024 (Aug. 28 2024) (S. Afr.).
2 Section 9, 10, 12 of the Constitution of the Republic of South Africa, 1996.
3 Section 1 (a) of the Constitution of the Republic of South Africa, 1996.
4 Section 10 of the Constitution of the Republic of South Africa, 1996.
5 Section 12 (1) (c) of the Constitution of the Republic of South Africa, 1996.
6 Section 9 (3) of the Constitution of the Republic of South Africa, 1996.
7 Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.
8 Section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.
9 Section 1 of the Domestic Violence Amendment Act 14 of 2021.
10 Section 2 of the Domestic Violence Amendment Act 14 of 2021.
11 Section 6A of the Domestic Violence Amendment Act 14 of 2021.
12 Convention on the Elimination of All Forms of Discrimination Against Women (1979; Protocol to the African Charter on Human and People’s Rights on the Rights of women in Africa (Maputo Protocol) (2003).
13 S v Chapman 1997 (3) SA 341 (SCA).
14 Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC).
15 S v Baloyi 2000 (1) SA 425 (CC).
16 IBID
17 Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development 2014 (2) SA 168 (CC).
18 IBID.
19 Artz, L., Fear or Failure: Why Victims of sexual Offences Withdraw from Cases (University of Cape Town, 2008).
20 Section 62 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act (Amendment) 13 of 2021.
21 Gender Justice Project, Review of the implementation of the Domestic Violence Act (2022).
22 Bonthuys, E., “The Personal and the Political: South African Women’s Right to Equality and Dignity” (2008)
23 The Criminal and Related Matters Amendment Act 12 of 2021.
24 South African Journal on Human Rights 1.
