Authored By: Alusani Audrey Mbedzi
Abstract
This article dives into the systemic and legal implications experienced as a result of the declaration of Gender Based Violence as a National Disaster in South Africa. The themes to be explored follow suit with the analysis of how a declaration as such would function within the parameters of the Disaster Management Act (57 of 2002) and in suite intersect with constitutional obligations under the Bill of Rights. This declaration could aid in the mobilization of urgent resource access and state action, however this kind of access poses questions about whether this would be a sustainable action, would it safeguard constitutional expectations, and would it be able to maintain institutional coordination. In total this article argues that as much as a national disaster declaration could spark the encouragement of emergency responses, its longevity would depend on the capability of the state to integrate emergency measures with addressing the structural drivers of Gender Based Violence and permanent legal reforms.
Introduction
South Africa’s Gender Based Violence cases have reached crisis levels, this being proven by the evident statistics of sexual and domestic violence cases in South Africa surpassing those of all countries globally. Due to these alarming statistics, civil society movements such as Women for Change have advocated to the declaration of Gender Based Violence as a national disaster. The declaration is being posed as a means to prompt a significant legal and policy movement. All of which lead us to ask ourselves,’ what would this kind of declaration mean for the South African legal system?’ Would it have the ability to open up channels to new mechanisms for resource allocation or rather risk providing a temporary solution to a deep-rooted societal issue? This article explores the different themes of the legal implications of a GBV disaster declaration and aligning it with South Africa’s constitutional democracy, and analyzing the potential it has to change the manner in which the state responses to GBV. It argues that as much as the declaration provides a framework for urgent responses, its longevity and success hinges on the alignment of the development of sustainable legal and policy reforms and constitutional beyond the emergency timeframe.
Legal Framework
2.1 The Disaster Management Act (57 of 2002)
The Disaster Management Act sets a statutory guideline for declaring a national disaster. The first section defines a disaster as follows,‘a progressive or sudden, widespread or localized, natural or human caused occurrence which causes or threatens to cause death, injury or disease; damage to property, infrastructure or the environment; or disruption of the life of a community.’
The Act provides a work ethic for disaster management in municipal, provincial, and national levels. The Minister of Cooperative Governance and Traditional Affairs is equipped and empowered to declare a national state of disaster after discussing the parameters with relevant Cabinet members as per Section 27 of the Act. As soon as a matter is considered as a national disaster, the Act enables government interaction as far as the creation of regulations, directives, resource reallocation to aid with the management of the disaster and coordinate responses across the departments.
2.2 Constitutional obligations
Fundamental rights established by the Constitution of the Republic of South Africa in 1996 are directly violated by the occurrence of gender-based violence. Some sections of the Constitution that stipulate this are as follows,
- Section 12: Enshrines the right to freedom and security of the person, this intertwining with the rights violated by GBV in a sense of allowing people to be free from all forms of violence from either public or private resources.
- Section 9: Enshrines the right equality, this right of which is violated and fundamentally undermined by gender-based violence.
As is reinforced by the Constitutional Court, in instances of cases such as Carmichele v Minister of Safety and Security, it is stated that the state has a duty to take reasonable steps to prevent the violation of Constitutional rights.
State obligations and Judicial Precedents.
3.1 Judicial Precedents on state obligations
The state’s constitutional duty to address matters such as GBV has been outlined extensively by the judiciary. This being evident in cases such as S v Baloyi whereby the Constitutional Court mentioned GBV to be a ‘pervasive evil’ the violates the right to equality, dignity and security as stated in the constitution. On a more direct note, to GBV the state Court reinforced the obligation it has to protecting women from GBV in K v Minister if Safety and Security. In this case it was stated that ‘the rights to life, dignity and freedom of security are meaningless in the face of systemic violence against women.’ Due to these kinds of judgements, it is important for the state to act both reasonably and decisively against the occurrence of GBV.
3.2 Existing Legislative Framework.
South Africa has adopted comprehensive legislation to aid and address GBV in the following manners:
- The Criminal Law (Sexual Offences and Related Matters) Amendment Act (32 of 2007)
- The Criminal Law (Forensic Procedures) Amendment Act (6 of 2010)
- Domestic Violence Act (116 of 1998)
It is stated that regardless of the complexity of the legislative framework, institutional inefficiencies, implementation gaps, and limited resources which limit effectiveness in general, a national disaster declaration would aid the operation and speed up action through emergency powers and enhanced coordination.
Legal implications of a GBV national disaster declaration
Potential Positive Legal System impacts
Enhanced Coordination.
As is stated in the national disaster framework, clear instructions on authority and coordination mechanisms have been set across government departments. The aiding the current bridge that GBV cases face as far as police response is concerned. But not only that but also enforce faster and more effective responses from health services, social development, and justice systems. A set coordinated system could improve communication, improve referral pathways, and overall make the response to GBV cases better.
Resource Mobilization
The national disaster declaration could also mean access to emergency funding; this bridges the gap between the criminal justice system. This provides relief in cases of under resourced police services, detective units, overburdened courts, case backlogs, shelter shortages, and victim support services.
Suggestions
In order for a national disaster declaration to be effective the following attributes should be considered:
Legislative Clarification and framework development
The Disaster Management Act should clarify the application and work ethic required in order to apply the disaster status to a social phenomenon such as GBV. This of course is being done by the Parliament. Parameters for this case being sectioned as “social disaster” created with the intent of creating custom response mechanisms that account for long term prevention strategies, and fast track protection requirements.
Constitution based mechanisms.
Urgent requirements issued in the declaration should include clauses set with clear response timelines, an independent body dedicated to the cause, recurring parliamentary oversight and reports and judicial reviews of emergent matters.
Integrated justice
The disaster should include systems that establish emergent GBV courts, create a diverse team aimed at addressing GBV, and develop legislation for their permanent establishment.
Tracked resource allocation.
With regular parliamentary oversight, emergency funds should be distributed and allocated with the intent of increasing community-based prevention forums, frontline service provision, research, and data collection to inform evidence-based responses and ensure that the accounting behind all of this is accounted for.
Conclusion
Having gender-based violence declared as a national disaster could spark a largely transformative agenda in the South African legal system. This declaration could increase the sense of urgency when addressing these cases, mobilizing unprecedented state resources, and altogether addressing the large scale of the matter. The occurrence of this, however, sparks complex legal implications as this declaration could potentially hinder constitutional boundaries, emergency powers, and institutional capacities.
In order for the declaration to be deemed successful, its success shouldn’t be calculated by the emergent capabilities of the response teams disposed by the state but rather by the possibility of this declaration to align with the parts of the legal system that effectively respects, protects, and fulfils constitutional rights altogether with the ultimate goal of demolishing GBV gradually altogether. Its enforcement should act to ensure that the long-term challenges faced by GBV are relinquished, and that its declaration encourages the evolution of the legal system, enduring change and encouraging emergency legal action.
References / Bibliography
- The Constitution of the Republic of South Africa, 1996.
- Disaster Management Act 57 of 2002.
- Domestic Violence Act 116 of 1998.
- Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.
- Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC).
- S v Baloyi 2000 (1) SACR 81 (CC).
- K v Minister of Safety and Security 2005 (6) SA 419 (CC).
- South African Government, National Strategic Plan on Gender-Based Violence and Femicide, 2020.
- South African Police Service, Crime Statistics 2022/2023, 2023.
- Commission for Gender Equality, Status of Gender-Based Violence in South Africa, 2022.
- Statistics South Africa, Crime Against Women in South Africa Report, 2021.
