Gender-Based Violence in South Africa: Does the Current Legal Framework Provide Meaningful Protection to Victims?

I. Introduction

Gender-based violence (GBV) is any injurious act aimed at an individual on the basis of their sex, gender identity or perceived gender that leads to, or is liable to result in, sexual, physical, psychological or financial harm or hardship.¹

GBV is ranked among the most vital human rights, public health and social justice challenges facing South Africa. Activists and government commonly characterise it as a “second pandemic”, and it has been classified as a national disaster.² It is a serious problem that infringes basic human rights, undermines communities and carries significant economic costs for South Africa. The legal problem at hand is that, despite a comprehensive legal framework, there is a serious failure of implementation to protect human rights, and this failure allows the crisis to continue growing. This essay examines the constitutional and legislative framework governing GBV, analyses relevant case law, evaluates the effectiveness of the current protections, and argues that implementation failures prevent victims from receiving substantive protection.

II. Legal Framework

South Africa’s response to GBV rests on both constitutional rights and specific legislation. The constitutional rights discussed below provide the foundation on which the statutory framework is built.

A. Section 9 – The Right to Equality

Section 9 states that every person is entitled to be treated equally before the law and has the right to equal protection.³ It strictly forbids unfair discrimination on the basis of gender, sex, pregnancy or marital status.⁴ This is significant because GBV is firmly rooted in gender inequality. Section 9 makes clear that treating women as lesser, or permitting abusers to act without punishment or fear of consequences, is inconsistent with equality.

B. Section 10 – The Right to Human Dignity

Section 10 states that everyone has inherent dignity and the right to have their dignity respected and protected.⁵ Abuse constitutes an attempt to control, humiliate and diminish another person. This is relevant because physical, emotional or sexual assault can entirely strip a victim of their sense of self-worth. South African courts have held that GBV directly undermines this basic constitutional value.⁶

C. Section 12 – Freedom and Security of the Person

Section 12 stipulates that everyone has the right to be free from all forms of violence.⁷ It expressly safeguards persons against violence from either public or private sources, and it is there to protect physical and psychological integrity.⁸ The reference to “private sources” is significant, as it means the State is constitutionally compelled to protect women from abuse that happens inside their private homes, not only in public spaces. The section also secures control over one’s own body and choices, making rape and domestic abuse direct constitutional violations.

D. Domestic Violence Act 116 of 1998

South Africa has established a legislative framework that seeks to prevent GBV, protect victims and ensure that perpetrators are held accountable for their unlawful actions. The two principal statutes within this framework are the Domestic Violence Act 116 of 1998 and the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.⁹

The Domestic Violence Act 116 of 1998 aims to protect those affected by domestic violence by offering victims legal remedies, especially protection orders. It acknowledges domestic violence as a significant societal problem and intends to offer victims the maximum protection the law can provide.¹⁰ It also imposes duties on relevant officials, including members of the SAPS, to assist complainants and inform them of their rights. The Act does not only seek to respond to domestic violence after it has happened; it also offers mechanisms through which victims can receive protection from continued abuse. Its provisions were strengthened by the Domestic Violence Amendment Act 14 of 2021, whose significant amendments came into operation in April 2023.¹¹

E. Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007

The Sexual Offences Act offers a thorough statutory framework for dealing with sexual offences. It replaced the common law offences of rape and indecent assault with statutory offences, and it goes beyond the common law to cover multiple forms of sexual violence and exploitation for gain.¹² The purpose of the Act is to protect victims of sexual offences, enhance the investigation and prosecution of perpetrators, minimise secondary victimisation and offer a more coordinated response from the criminal justice system.¹³

III. Case Law and Judicial Responses

Protection orders are meant to protect victims of GBV by providing quick and effective protection from continuing abuse. Nevertheless, their effectiveness is often undermined by delays and poor implementation.¹⁴ Courts have recognised the importance of making protection orders “accessible, speedy, simple and effective” so that victims can obtain the protection and justice they seek. However, in cases such as Naidoo v Minister of Police, victims may receive insufficient support from the police when seeking protection.¹⁵ The court found that the police failed to comply with their duties under the Domestic Violence Act, showing the gap between legal protection on paper and actual protection in practice.

IV. Critical Evaluation of the Legal Framework

A. Protection Orders and Victim Protection

Even though South Africa has established a comprehensive legal framework to counter GBV, the continuing prevalence of violence against women raises concerns about whether these protections are being put into practice effectively. Although the law offers measures such as protection orders, do victims really receive the effective protection they need?

Are victims actually protected? Protection orders are very effective for victims who have self-sufficient financial standing and access to a reliable police station, because these two pillars keep victims safe. However, for vulnerable groups, this tool remains practically out of reach and institutionally fragile, owing to the shortage of state implementation resources for those who lack self-sufficient financial standing and a reliable police station. Victims of GBV know that they have a right not to be abused, yet they often lack deep, practical legal understanding to a significant degree. Although prominent national campaigns have effectively conveyed basic awareness that GBV is a crime, evidence-based research has shown that, when crises occur, substantial information gaps prevent victims from exercising those rights properly.

Concerns also exist about breaches of protection orders and whether the police respond effectively. In the Western Cape between 2020–2025, 47 457 charges were laid for breaching protection orders, resulting in 37 938 arrests and 6 486 convictions.¹⁶ This clearly demonstrates that the violation of protection orders is common, while the relatively low number of convictions compared with the number of charges raises concerns about the effectiveness of enforcement and the progression of cases through the criminal justice system.

Consider a scenario in which a victim obtains a protection order, but the perpetrator continues to threaten or even assault her and the order is not properly enforced. In such a case, the legal protection that exists on paper is rendered ineffective.

B. Police Response and Enforcement

Under the Domestic Violence Act, police are legally obliged to assist victims, open cases, attend to reported incidents and enforce protection orders.¹⁷ Despite these requirements, problems persist in the adequacy of police responses.¹⁸ This is shown by Parliament’s reporting of non-compliance, including cases in which police failed to open cases, failed to submit protection orders and provided inadequate service to victims. Concerns also exist about inadequate training, a lack of resources and the renewed trauma that victims suffer.¹⁹

C. Prosecution and Access to Justice

Perpetrators are not always successfully prosecuted because of legal, systemic and investigative challenges. Although complaints must be investigated, evidence collected and cases sent for prosecution, delays, lack of evidence and the withdrawal of cases can lead to cases being struck from the roll or dropped. This essentially means that many perpetrators may not face conviction, which leaves victims with less confidence in the criminal justice system. Accordingly, a gap remains between the reporting of GBV and the successful prosecution of perpetrators.²⁰

Even though legislation sets out a broad system and prescribes harsh sanctions, its punitive and deterrent impact can be undermined where perpetrators are unlikely to be investigated, prosecuted or convicted.

D. Law on Paper and Law in Practice

South Africa shows a significant gap between the law on paper and the law in practice.²¹ Although the Constitution and legislation stipulate the importance of protection from GBV, the effectiveness of these protections relies mainly on implementation by the police, courts and public institutions. Where victims encounter challenges in accessing protection orders, reporting offences and obtaining legal recourse, the existence of comprehensive legislation does not inherently guarantee effective protection. Consequently, comprehensive legal protection does not necessarily translate into meaningful protection for victims.

V. Challenges and Gaps

South Africa has a comprehensive legal framework for mitigating GBV; however, numerous challenges constrain its effectiveness. These persistent challenges reveal the gap between the protection mandated by law and the lived experience of victims.

Victims may encounter a number of challenges when attempting to report GBV. In some cases, they fear their perpetrators, are not taken seriously by the police, or are even discouraged from opening a case. Delays in obtaining protection orders can leave victims at risk. In certain cases, victims struggle when their matters come to court because of delays, insufficient evidence or the withdrawal of cases. Such barriers can discourage victims from seeking justice and protection.

Many GBV cases go unreported because victims fear retaliation, stigma and financial repercussions, or fear being dismissed rather than properly assisted.²² A lack of trust in the justice system and delays in obtaining assistance can discourage victims from reporting abuse.²³

A shortage of personnel, training, facilities and other resources can negatively affect how GBV cases are handled. Having fewer trained officers may result in delays and poor investigations, whereas insufficient forensic resources can complicate the collection of evidence. Victims are likely to receive less support when social workers, facilities or shelters are in short supply. This can, ultimately, delay prosecutions and lower the chances of successful convictions, as demonstrated by ongoing investigation and DNA testing backlogs.²⁴

VI. Recommendations

Given these challenges, the following measures are recommended:

• The government ought to improve the implementation and enforcement of GBV laws to ensure that they function in practice.
• Training for police, court officials and social workers should be enhanced so that they know how to deal with GBV victims.
• More resources, staff and victim support should be made available and accessible to decrease delays and enhance access to justice.
• Where applicable, legislation ought to be amended to close gaps and strengthen protection for victims.
• Greater accountability is needed for officials who fail to carry out their legal duties.

VII. Conclusion

Ultimately, South Africa possesses a comprehensive legal framework designed to combat gender-based violence and safeguard victims. The Constitution, the Domestic Violence Act and the Criminal Law (Sexual Offences and Related Matters) Amendment Act provide important legal protection for victims and place duties on institutions such as the police and courts. However, the effectiveness of these laws is limited by the gap between the law on paper and the law in practice. Problems such as poor implementation and enforcement, lack of resources, inadequate training, delays and difficulties in accessing justice continue to affect victims of GBV.

Therefore, although the current legal framework provides the necessary legal protection, it cannot be considered fully effective if victims do not receive the protection and support that the law provides for. The government should improve the implementation and enforcement of GBV laws, provide better training and resources to officials, strengthen victim support services and ensure that those who fail to perform their legal duties are held accountable. Legislative amendments should also be considered where necessary to ensure that the legal framework responds effectively to the challenges faced by victims.

Overall, stronger implementation and enforcement are required to ensure that legal protection becomes substantive protection for victims of gender-based violence.

Footnote(S):

¹ Council of Europe source, ‘Glossary’ https://www.coe.int/en/web/gender-matters/glossary accessed 2 September 4, 2026.

² The Presidency of the Republic of South Africa, https://www.thepresidency.gov.za accessed 2 September 4, 2026.

³ Constitution of the Republic of South Africa, 1996 s 9(1).

⁴ Constitution of the Republic of South Africa, 1996 s 9(3).

⁵ Constitution of the Republic of South Africa, 1996 s 10.

⁷ Constitution of the Republic of South Africa, 1996 s 12(1)(c).

⁸ Constitution of the Republic of South Africa, 1996 s12(1)(c)-(e).

⁹ Domestic Violence Act 116 of 1998; Criminal Law (Sexual Offence and Related Matters) Amendment Act 32 of 2007.

¹⁰ Domestic Violence Act 116 of 1998 ss 4, 7.

¹¹ Domestic Violence Act 14 of 2021.

¹² Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

¹³ Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

¹⁴ Naidoo v Minister of Police (20431/2014) [2015] ZASCA 152.

¹⁵ Naidoo v Minister of Police (20431/ 2014) [2015] ZASCA 152.

¹⁶ Western Cape provincial Parliament, ‘Police Oversight and Community Safety’ https://www.wcpp.gov.za/?q=node/20019 accessed 3 September 4, 2026.

¹⁷ Domestic Violence Act 116 of 1998 ss 2, 2A, 3 ad 18.

¹⁸ Naidoo v Minister of Police (20431/2014) [2015] ZASCA 152.

¹⁹ Domestic violence Act 116 of 1998 https://www.gov.za/documents/domestic-violence-act accessed 3 September 4, 2026.

²⁰ Parliament of the Republic of South Africa, ‘Media Statement: Shocking Non-compliance with Provisions of Domestic Violence Act at Police Station-level’ (30 October 2024) https://www.parliament.gov.za/press-releases/media-statement-shocking-non-compliance-provisions-domestic-violence-act-police-station-level accessed 4 September 4, 2026.

²¹ Heidi Mogstad, Dominique Dryding and Olivia Fiorotto, ‘Policing the Private: Social Barriers to the Effective Policing of Domestic Violence’ (2016) 56 South African Crime quarterly https://www.researchgate.net/publication/305747768_Policing_the_private_social_barriers_to_the_effective_policing_of_domestic_violence accessed 4 September 2026.

²² Commission for Gender Equality, ‘Pockets of Excellence but also Gaps in our Country’s Police Stations in Dealing with GBV’ https://cge.org.za/pockets-of-excellence-but-also-gaps-in-our-country/ accessed 4 September 2026.

²³ Centre for the Study of Violence and Reconciliation, ‘Justice Denied, Silenced Maintained: Women’s voices from the Margins of South Africa’s justice System’ (17 July 2026) https://csvr.org.za/justice-denied-silenced-maintained-women-voices-from-the-margins-of-south-africas-justice-system/ accessed 4 September 2026.

²⁴ Parliament of the Republic of south Africa, ‘Media Statement: shocking Non-compliance With Provisions of Domestic Violence Act at Police Station-Level’ (30 October 2024) https://www.parliament.gov.za/press-realses/media-statement-shocking-non-compliance-provisions-domestic-violence-act-police-station-level accessed 5 September 2026.

References and Bibliography

Cases

• Naidoo v Minister of Police (20431/2014) [2015] ZASCA 152.

Legislation

• Constitution of the Republic of South Africa, 1996.
• Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.
• Domestic Violence Act 116 of 1998.
• Domestic Violence Amendment Act 14 of 2021.

Government and Policy Documents

• National Strategic Plan on Gender-Based Violence and Femicide, 2020–2030.

Journal Articles

• Heidi Mogstad, Dominique Dryding and Olivia Fiorotto, ‘Policing the Private: Social Barriers to the Effective Policing of Domestic Violence’ (2016) 56 South African Crime Quarterly https://www.researchgate.net/publication/305747768_Policing_the_private_social_barriers_to_the_effective_policing_of_domestic_violence

Online Sources

• Commission for Gender Equality, ‘Pockets of Excellence but also Gaps in our Country’s Police Stations in Dealing with GBV’ https://cge.org.za/pockets-of-excellence-but-also-gaps-in-our-country/
• Centre for the Study of Violence and Reconciliation, ‘Justice Denied, Silenced Maintained: Women’s Voices from the Margins of South Africa’s Justice System’ (17 July 2026) https://csvr.org.za/justice-denied-silenced-maintained-women-voices-from-the-margins-of-south-africas-justice-system/
• Parliament of the Republic of South Africa, ‘Media Statement: Shocking Non-compliance with Provisions of Domestic Violence Act at Police Station-Level’ (30 October 2024) https://www.parliament.gov.za/press-releases/media-statement-shocking-non-compliance-provisions-domestic-violence-act-police-station-level
• Western Cape Provincial Parliament, ‘Police Oversight and Community Safety’ https://www.wcpp.gov.za/?q=node/20019
• Council of Europe, ‘Glossary’ https://www.coe.int/en/web/gender-matters/glossary