Gender-Based Violence and Femicide in South Africa: Are the Current Legal Frameworks Effective, or Is Legislative Reform Necessary?

Authored By: Nana Apathia Mbabama

University of South Africa

In 1995, Alix Jean Carmichele was attacked by Francois Coetzee, who struck her head, broke her arm, and stabbed her in the chest with a knife. During the vicious attack, Carmichele saw an opportunity to escape when her attacker lost his balance; she fled and sought assistance. Coetzee had a history of sexual misconduct and violence: earlier that year, on 4 March 1995, he had been charged with the rape of a 17-year-old minor and released on warning. Under section 35(1)(f) of the Constitution, an accused person may be released on bail where it is in the interests of justice, and as a South African citizen accused of a crime, Coetzee was entitled to that right.¹ The state bore the onus of placing Coetzee’s previous convictions before the court. Given his history of violence, it was arguably not in the interests of justice to release him on warning, since he was likely to reoffend while out on bail.

This article examines the effectiveness of South Africa’s current legal framework in combating gender-based violence and femicide. It analyses the constitutional and legislative measures enacted to protect victims, considers the development of the law through landmark judicial decisions, and critically examines instances where the implementation of these legal measures has failed to provide adequate protection to victims. It further evaluates whether the continued prevalence of gender-based violence and femicide results from deficiencies in the law itself or from failures in its implementation, and considers whether legislative reform is necessary to strengthen the protection afforded to victims.

2. Constitutional Framework

Section 10 of the Constitution provides that everyone has the right to have their dignity respected and protected.² Section 11 further provides that everyone has the right to life.³ Sections 9(1) and 9(2) provide that everyone is equal before the law and entitled to equal protection and benefit of the law,⁴ as well as the full and equal enjoyment of all rights and freedoms.⁵ The importance of these constitutional rights is illustrated by Carmichele v Minister of Safety and Security.⁶ It may be argued that Carmichele was failed by the state through its own negligence: the police failed to provide the prosecution with the accused’s SAP69 form to verify his previous convictions, while the prosecution failed to oppose his release despite information suggesting that he posed a risk to the public. As a result of these omissions, Coetzee was released and subsequently attacked Carmichele.

3. Legislative Framework

The Domestic Violence Act 116 of 1998 was enacted to protect victims of domestic violence by allowing them to obtain protection orders and immediate legal relief without having to wait for a criminal trial.⁷ Protection orders are one of the essential remedies put in place to protect victims of domestic abuse, intended to prevent further acts of violence by placing legally enforceable, stringent restrictions on the respondent. Where a respondent breaches the terms of a protection order, the victim may report the breach to the South African Police Service, which is required to take appropriate steps in accordance with the law. The effectiveness of a protection order therefore depends not only on the order being granted, but also on its prompt enforcement by law enforcement authorities. The duty does not fall on the South African Police Service alone; it also falls on the courts, prosecutors, and other state institutions, all of which must work together to achieve an effective, coordinated implementation of the law.

Victims who are not in a domestic relationship are protected through other legislation, including the Criminal Procedure Act 51 of 1977. Although the Criminal Procedure Act provides a comprehensive framework that regulates arrests and ensures that criminal proceedings are prosecuted without prejudice, fear, or favour, its effectiveness still depends on proper implementation by state institutions.⁸ The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 similarly forms part of South Africa’s broader legal framework aimed at preventing and prosecuting gender-based violence and protecting victims.⁹ Moreover, the Act has been modernised, expanded, and strengthened over time to protect victims of sexual offences. Nonetheless, the continued prevalence of gender-based violence demonstrates that legislation alone is not enough — its success depends on efficient policing, prosecution, and victim support services.

Collectively, these statutes show that South Africa possesses an extensive legislative framework to combat gender-based violence and femicide. Even so, the continued prevalence of these offences raises the question of whether the challenge lies in the law itself, or in the state institutions responsible for implementing it — a question the case law below helps to answer.

4. Case Law and Critical Analysis

The constitutional rights to life and dignity have not always translated into effective protection for victims. This is demonstrated in S v Manyathi,¹⁰ where the deceased’s constitutional rights were violated in a particularly brutal manner. In Manyathi, the court declined to impose the prescribed minimum sentence of life imprisonment after finding substantial and compelling circumstances, including that the accused was a first offender, had pleaded guilty, expressed remorse, and was under the influence of alcohol — a factor the court found had reduced the element of premeditation. The court also found that the accused had acted with dolus eventualis. He was sentenced to 23 years’ imprisonment for attempted murder in respect of the first incident in 2023, and 28 years’ imprisonment for murder in respect of the 2024 incident, resulting in an effective sentence of 28 years.

The court further observed that alcohol consumption is a recurring feature in many gender-based violence and femicide cases. While alcohol consumption remains a relevant sentencing factor, treating it as a mitigating circumstance raises concerns as to whether the criminal justice system adequately reflects the seriousness of these offences. Given the prevalence of gender-based violence and femicide in South Africa, it is submitted that reliance on alcohol consumption to justify a departure from the prescribed minimum sentence warrants careful reconsideration.

On 25 March 2022, Ntuthuko Shoba was found guilty of murder. Although Shoba did not kill the deceased himself, he actively facilitated her murder by hiring another person to carry it out for R70,000. As in Carmichele, the deceased’s constitutional rights to life and dignity were not protected; however, unlike in Carmichele, the law was properly implemented. Where the state in Carmichele failed to place essential information before the court, the state in Shoba’s case relied on CCTV footage from the Westlake complex and cell-site analysis to prove that Shoba and his co-accused, Malepane, had been in the same location on numerous occasions. The state proved Shoba’s guilt beyond reasonable doubt, demonstrating effective implementation of the law in this instance. Yet despite this conviction, gender-based violence and femicide remain a national crisis — a fact that raises the question of whether legislative reform is necessary.

5. Evaluation of the Current Legal Framework

Although South Africa has enacted extensive legislation to combat gender-based violence and femicide, the continued prevalence of these offences raises questions about the effectiveness of the existing legal framework. It is submitted that implementation remains the more significant challenge. The Carmichele case illustrates how failures by state officials can undermine the protection legislation is intended to provide, while cases such as Manyathi raise questions as to whether the current sentencing framework adequately reflects the seriousness of gender-based violence and femicide.

The Criminal Procedure Act 51 of 1977 regulates bail proceedings in South Africa.¹¹ Section 60 of the Act governs the interests-of-justice test for bail, placing the onus on the accused to show that release would be in the interests of justice, and imposes stricter requirements where the accused is charged with a Schedule 5 or Schedule 6 offence. Depending on its nature, femicide may fall within Schedule 5 or 6. This shows that the legislature has strengthened bail proceedings; however, the effectiveness of these provisions still depends on whether investigating officers, prosecutors, and the courts apply them consistently — even the most stringent bail provisions cannot protect victims if the relevant information is never placed before the court. While this article acknowledges the importance of effective implementation, it is further submitted that legislative reform should also be considered in order to strengthen the protection afforded to victims.

6. Conclusion

This article has examined the effectiveness of South Africa’s current legal framework in combating gender-based violence and femicide by analysing the constitutional rights afforded to victims, the legislative measures enacted to protect them, and the role played by the courts in interpreting and enforcing these laws. The case of Carmichele v Minister of Safety and Security demonstrated how the failure of the relevant authorities to implement the law resulted in the infringement of the victim’s constitutional rights, with devastating consequences. Meanwhile, S v Manyathi and S v Shoba illustrated the different ways in which the criminal justice system has responded to offences involving gender-based violence and femicide.

It is submitted that South Africa possesses an extensive constitutional and legislative framework capable of protecting victims of gender-based violence and femicide. However, the continued occurrence of these offences suggests that, while legislative reform may be necessary, the effective implementation and enforcement of existing laws by the relevant state institutions remains paramount.

This article recommends strengthening the implementation of existing legislation through improved police investigations, diligent prosecution, effective enforcement of the Domestic Violence Act 116 of 1998, and greater accountability for state officials who fail to fulfil their constitutional and statutory obligations. Furthermore, while alcohol consumption may constitute a mitigating factor, this article submits that voluntary intoxication should not justify a deviation from the prescribed minimum sentence in cases involving gender-based violence and femicide. Lastly, legislative amendments should be considered — amendments that provide clearer guidance on the role of voluntary intoxication in sentencing for gender-based violence and femicide, ensuring that sentences appropriately reflect the seriousness of these offences while promoting justice for victims.

Case Law

Carmichele v Minister of Safety and Security (CCT 48/00) [2001] ZACC 22; 2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC); 2002 (1) SACR 79 (CC) (16 August 2001)
S v Manyathi (CC 70/2024) [2025] ZAECMKHC 5; 2025 (1) SACR 446 (ECMk) (24 January 2025)
S v Shoba (SS36/2021) [2022] ZAGPJHC 174 (25 March 2022)

Bibliography

Carmichele v Minister of Safety and Security (CCT 48/00) [2001] ZACC 22; 2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC); 2002 (1) SACR 79 (CC) (16 August 2001)

S v Manyathi (CC 70/2024) [2025] ZAECMKHC 5; 2025 (1) SACR 446 (ECMk) (24 January 2025)

S v Shoba (SS36/2021) [2022] ZAGPJHC 174 (25 March 2022)

Legislation