Authored By: Basetsana Moatshe
University of South Africa
ABSTRACT
On the 20th of November 2025, President Cyril Ramaphosa of South Africa declared gender-based violence as a national disaster. This followed after there was a nationwide protest against gender-based violence ahead of the G20 summit that was set to take place in South Africa. This remarkable declaration was the first step towards combating this national crisis. Historically, there have been other constitutional and legislative frameworks put in place to protect victims of violence as well as their rights. South Africa as a democratic state advocates for equality among its people. However, gender-based violence cases in South Africa have been aggressively increasing over the years. It remains one of the country’s pervasive human rights challenges, directly affecting women, men and children. It encompasses physical, sexual, psychological, emotional and economic abuse, mostly directed at women, men and children based on their gender. South Africa has continued to experience rapidly high levels of domestic violence, rape and femicide even though it is deemed to have one of the most progressive constitutions in the world as well as a legislative framework whose sole purpose is to protect victims. Gender-based violence cases were at an all time high during the COVID-19 pandemic. This prompted nationwide calls to declare GBV a national disaster under the Disaster Management Act 57 of 2002. At the time, it was not formally declared as a national disaster but this raised important constitutional questions.
This article seeks to examine the legal implications following the declaration of Gender-based violence as a national disaster. It provides the constitutional obligations placed on the State, the legislative framework that is already put in place to govern GBV as well as the jurisprudence that is developed by the South African judiciary. The article argues that while the declaration brought forward strengthened coordination, funding and accountability, the main challenge will be effectively implementing constitutional duties and statutory protections that are already in existence.
CONSTITUTIONAL FRAMEWORK
The Constitution of the Republic of South Africa, 1996 is the supreme law of the land and it forms the foundation of the country’s legal response to GBV. Section 7(2) of the Constitution places a positive obligation on the state to respect, protect, promote and fulfil the rights enshrined in the Bill of Rights. This section requires the government to take the necessary steps to help prevent violence against women and other vulnerable groups.
Section 9 of the Constitution further guarantees equality before the law and prohibits unfair discrimination on the grounds of sex as well as gender. Gender-based violence disproportionately affects women and girls; it undermines substantive equality and reinforce systemic discrimination. Consequently, the State has a constitutional obligation to adopt legislative and policy measures to address gender equality in the country.
Section 10 ensures that everyone has the right to human dignity. Domestic violence, acts of sexual violence and coercive control constitutes a direct violation of this important right by tripping the victim of their autonomy and self-worth.
Section 11 ensures the protection of the right to life, while section 12 guarantees freedom and security of a person. This includes the right to be free from any form of violence whether public or private. This provision is important because it recognises that the state responsibilities even when it comes to violence that is committed by private individuals.
Furthermore, section 27 ensures access to healthcare services, including medical treatment, counselling and psych support for victims of GBV. Section 28 guarantees that children have the right to be protected from abuse, exploitation and neglect. It also recognises that children are frequently witnesses or even victims oof domestic violence.
These provisions highlight that addressing and tackling GBV is not only a policy objective, but it is also a constitutional imperative.
LEGISLATIVE FRAMEWORK
Over the years, South Africa has enacted statutes in an effort to combat GBV.
The Domestic Violence Act 116 of 1998 was introduced to provide protection for victims through protection orders and placed the legal duty on members of the South African Police Service to aid with complaints. Recent amendments have strengthened electronic applications, provided broader definitions of domestic relationships and improved protection mechanisms.
The Criminal Law (Sexual offences and Related Matters) Amendment Act 32 of 2007 provides a comprehensive regulation of sexual offences, broadens definitions of rape and sexual assault, establishes protective measures for vulnerable witnesses and creates the National Register for Sex offenders.
The Criminal and Related Matters Amendment Act 12 of 2021 introduced stricter bail regulations, expanded the list of offences which require compulsory registration and further enhanced protection for complainants during criminal proceedings.
The Protection from Harassment Act 17 of 2011 allows the victims of stalking and harassment to obtain protection orders regardless of the relationship between the parties.
The Disaster Management Act 57 of 2002 gives authority to the state to declare a national state of disaster where extraordinary circumstances need coordinated government intervention. This declaration permits emergency regulations, fast-tracked procurement processes, mobilisation of additional financial resources and coordinated responses across all spheres of the government. Even though GBV is different from traditional natural disasters, its significant rise and devastating impact has led many scholars and normal South Africans to argue that it meets the characteristics of a national disaster requiring exceptional governments intervention. This led to GBV finally being declared a national disaster after weeks of protests and public unrest.
LANDMARK CASE LAW
The South African judicial system has consistently recognised that the State holds the positive constitutional obligation to protect people from gender-based violence.
In the case of S v Baloyi, the Constitutional Court described domestic violence as a serious social evil that is in violation of constitutional rights. The court further acknowledged the unequal power dynamics in abusive relationships and highlighted the importance of effective legal remedies for victims.
In the Carmichele v Minister of Safety and Security, the Constitutional Court held that the State may be held liable where police and the prosecution negligently fail to provide protection to victims from foreseeable violence. The court further emphasised that section 7((2), 10, 11 and 12 of the Constitution vests the obligation upon the State to safeguard individuals against violent crime.
The Minister of Safety and Security v Van Duivenboden case further confirmed that omissions by state officials gives rise to delictual liability in circumstances where constitutional duties require positive action. This judgement reinforced that government cannot escape liability through inaction.
Recently, the Tshabalala v S; Ntuli v S cases transformed South African rape law by recognising that members of a group that act with a common purpose may all be convicted of rape, even in cases where only one physically penetrated the complainant. This has strengthened accountability for gang rape and further improved the prosecution of sexual offences.
These judgements have collectively demonstrated the judiciary’s commitment to interpreting constitutional rights in a way that enhances protection for victims.
LEGAL IMPLICATIONS OF DECLARING GBV A NATIONAL DISASTER
As of 20 November 2025, GBV has been declared a national disaster in South Africa. What are the legal implications following this following this remarkable decision?
This declaration empowers the executive to adopt emergency regulations that are designed to improve prevention, victim support and law enforcement. Emergency powers help facilitate urgent implementation of specialised courts, shelters and victim support services.
This declaration justifies the need for increased budget allocations for policing, forensic labs, healthcare services and shelters. A lot of existing legislative protections have failed because institutions lacked sufficient financial and human resources.
This declaration strengthens coordination among the three spheres of government (national, provincial and local). The fragmented nature of the current GBV interventions have resulted the duplication of efforts and inconsistent service delivery.
Finally, enhanced reporting obligations could improve governmental accountability. Mandatory reporting and measurable performance indicators may assist Parliament and the civil so in evaluating the effectiveness of anti-GBV interventions.
This declaration does raise constitutional concerns. Extraordinary executive powers as mentioned earlier should remain subject to judicial oversight and parliamentary scrutiny to prevent abuse of power. Emergency measures must always be in line with the constitutional principles of legality, proportional and accountability.
Importantly, many commentators have argued that South Africa’s primary challenge is not the absence of legal powers, but it is the weak implementation of legislation that already exists. Police failures, inadequate victim support services, delayed prosecutions and resource constraints continue to undermine legal protections that are already available.
CONCLUSION
Gender-based violence is one of the most serious threats to the South African constitutional democracy. The Constitution imposes clear upon the State to protect individuals from any form oof violence, while several statutes establish effective mechanisms for the prevention, prosecution and victim support. Judicial decisions held in cases such as Carmichele, Tshabalala, and Baloyi, have reinforced these constitutional duties by holding the State accountable for the failure to protect vulnerable individuals.
Although this declaration means an enhanced governmental coordination, unlocks additional funding and strengthens accountability mechanisms, it will not eliminate systemic failures within the criminal justice system by itself. Effective and successful implementation of constitutional obligations that already exist, depend on proper resourcing of public institutions and sustained political commitment. Accordingly, even though GBV has been declared a national disaster, meaningful progress against this crisis ultimately depends on the consistent enforcement of South Africa’s constitutional and legislative framework.
BIBLIOGRAPHY
Legislation
Constitution of the Republic of South Africa,1996
Criminal and Related Matters Amendment Act 12 of 2021.
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.
Disaster Management Act 57 of 2002.
Domestic Violence Act 116 of 1998.
Protection from Harassment Act 17 of 2011.
Cases
Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC).
Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA).
S v Baloyi 2000 (2) SA 425 (CC).
Tshabalala v S; Ntuli v S 2020 (5) SA 1 (CC)
Secondary sources
Republic of South Africa, National Strategic Plan on Gender-Based Violence and Femicide 2020–2030 (2020).
