Gender-Base Violence and the Constitution: Are Current Laws Enough?

Abstract

Due to profoundly ingrained patriarchal and sexist beliefs, gender-based violence (GBV) is a significant and ongoing problem in South African society. The Republic of South Africa’s 1996 Constitution, which upholds rights like equality, non-sexism, human dignity, and freedom from all types of violence, is a fundamental component in combating this evil. Despite a robust legislative framework, including the Domestic Violence Act, the Criminal Law (Sexual Offences and Related Matters) Amendment Act, and the Protection from Harassment Act, the nation continues to grapple with alarmingly high rates of GBV and femicide, suggesting significant gaps in the application and enforcement of these laws. This article critically examines the existing legal landscape, drawing on constitutional jurisprudence, statutory provisions, and national strategic plans, to assess the sufficiency of current laws in combating GBV and to propose a multi-faceted approach towards a more effective and victim-centric justice system.

Introduction

Gender-based violence in South Africa has reached crisis proportions, attracted significant media attention and prompting national responses from the highest levels of government as a result President Cyril Ramaphosa has unequivocally acknowledged the severity of the issue, referring to it as a “second pandemic” in the context of the COVID-19 crisis[1]. This pervasive violence, often targeting individuals based on their factual or perceived sex, gender, sexual orientation, and/or gender identity, is fundamentally linked to unequal power relations and deeply entrenched patriarchal norms[2].

The South African Constitution, Act 108 of 1996, stands as a beacon of human rights, foundational values, and principles, including human dignity, the achievement of equality, the advancement of human rights and freedoms, non-racialism, and non-sexism[3]. It specifically guarantees the right to freedom and security of the person, including the right to be free from all forms of violence from either public or private sources[4]. This constitutional imperative places a direct obligation on the state to protect against both private and domestic violence[5].

In response to this constitutional mandate and the persistent societal challenge, South Africa has developed a comprehensive legal and policy framework to prevent and respond to various forms of GBV[6]. This article aims to critically analyse the efficacy of these existing laws and the extent to which they adequately address gender-based violence within the constitutional framework. By examining legislative provisions, judicial interpretations, and current implementation challenges, it seeks to determine whether the current legal arsenal is sufficient or if further reforms and systemic changes are required to achieve a society free from GBV.

1.Legal Framework

South Africa’s legislative and policy framework to address GBV is rooted in its Constitution and is among the most progressive globally[7].

1.1 Constitutional Provisions

The Constitution of the Republic of South Africa, 1996, establishes the fundamental principles for an effective legislative response to GBV[8]. Its founding values include human dignity, the achievement of equality, the advancement of human rights and freedoms, non-racialism, and non-sexism[9]. Chapter 2, the Bill of Rights, further affirms equality, human dignity, life, and freedom and security of the person[10]. Specifically, Section 12(1)(c) guarantees the right to be “free from all forms of violence from either public or private sources”, directly enshrining protection against interpersonal violence and placing a positive obligation on the state to protect this right[11].

1.2 Key Legislation

Several pieces of legislation form the bedrock of South Africa’s legal response to GBV:

• The Domestic Violence Act 116 of 1998 (DVA): This Act provides a civil remedy for victims of domestic violence, enabling them to obtain protection orders[12]. When a protection order is issued, it is accompanied by a suspended warrant of arrest, which is activated upon breach of the order[13]. The DVA also places a mandate on police officials and clerks of the court to assist complainants and inform them of their rights to lay a criminal charge where the act constitutes an offence[14].
• The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007: This landmark Act codified and broadened the definition of rape and other sexual offences, including the recognition of forced anal penetration as rape[15]. It introduced new offences and expanded the National Register of Sex Offenders (NRSO) to protect all victims of sexual offences, irrespective of age or mental status[16]. Crucially, the Act scrapped the cautionary rule in sexual offence cases and mandated that courts should not draw negative inferences from delayed reporting, thereby addressing historical biases against victims[17].
• The Protection from Harassment Act 17 of 2011: This legislation allows for the issuance of protection orders against harassment, providing recourse for individuals experiencing various forms of unwanted conduct[18].
• The Criminal Procedure Act 51 of 1977: This Act governs the procedures for arrest, bail, conviction, and sentencing in criminal cases. Recent and proposed amendments aim to make it more victim-centric, particularly through the review of bail provisions to offer greater protection to victims of GBV[19].
• The Criminal Law Amendment Act 105 of 1997: This Act establishes mandatory minimum sentences for certain serious offences, including specific categories of rape, aiming to ensure severe and consistent punishment for offenders[20].

National Strategic Plan on Gender-Based Violence and Femicide (NSP)

The National Strategic Plan on Gender-Based Violence and Femicide 2020–2030 (NSP) provides a multi-sectoral and coherent strategic framework for a coordinated national response to the crisis[21]. It is founded on women constitutionally entrenched right to be free from all forms of violence[22]. The NSP is structured around six pillars: Accountability, Coordination and Leadership; Prevention and Rebuilding Social Cohesion; Protection, Safety and Justice; Response, Care, Support and Healing; Economic Power; and Research and Information Systems[23]. This plan underscores a whole-of-society approach to understanding, responding to, and preventing GBV[24].

2. Judicial Interpretation and Effectiveness

Despite the progressive constitutional and legislative framework, the implementation and practical effectiveness of these laws in combating GBV remain a significant challenge in South Africa.

2.1Prevalence of GBV and Implementation Gaps

Gender-based violence is deeply entrenched in South African society, with high levels of impunity[25]. Research consistently highlights the alarming prevalence of GBV, with official reports of sexual violence, partner violence, and rape cases in higher education institutions, for instance, indicating only a fraction of the actual occurrences due to significant under-reporting[26]. This disparity between strong legal provisions and persistent violence signals critical implementation gaps.

2.3 Constitutional Court Jurisprudence

The Constitutional Court has played a pivotal role in shaping the interpretation and application of laws related to GBV, emphasizing the state’s obligations:

• S v Baloyi [27]: In this seminal case, the Court highlighted the state’s constitutional duty to provide effective remedies against domestic violence, acknowledging its systemic, pervasive, and overwhelmingly gender-specific nature, which reinforces patriarchal domination[28]. Justice Sachs pointed out that the ineffectiveness of the criminal justice system in addressing family violence intensifies the subordination and helplessness of victims, sending a message that “the daily trauma of vast numbers of women counts for little”[29]. The Court recognized the need for effective measures to deal with the gross denial of human rights resulting from pervasive domestic violence, while also upholding the right to a fair trial[30].
• Omar v Government of RSA[31]: The Court affirmed the DVA’s purpose to afford victims “maximum protection” and unequivocally stated the state’s commitment to eliminating domestic violence[32]. However, it also acknowledged the potential for misuse, exploitation, and manipulation of the Act, particularly in the context of divorce and custody battles, emphasizing that such potential “is by far outweighed by its potential to afford protection”[33]. Lawyers were reminded of their responsibility not to exploit the Act for tactical advantage, as this could undermine its effectiveness[34].
• Carmichele v Minister of Safety and Security[35]: This case established the state’s constitutional duty to protect the public, particularly women, against violent crime and reinforced the judiciary’s obligation to develop common law in line with constitutional values[36]. The Court noted South Africa’s duty under international law to prohibit gender-based discrimination and take appropriate measures to prevent violence against women[37].
• Masiya v Director of Public Prosecutions (Pretoria)[38]: The Court extended the common law definition of rape to include non-consensual anal penetration of women, grounding this in the constitutional rights to dignity, equality, bodily integrity, and security of the person. This demonstrated a critical shift from historical definitions rooted in patriarchal property rights to an understanding of rape as a violation of a woman’s fundamental human rights[39].

3. Challenges in Implementation

Despite these legal and jurisprudential advances, several critical challenges hinder the effective combatting of GBV:

• Police Response: Police officials are often the first point of contact for victims[40]. However, there is documented evidence of their reluctance to intervene decisively in domestic violence cases, often perceiving them as private matters and sometimes diverting victims to civil remedies rather than registering criminal complaints[41]. This is compounded by a lack of adequate training and “unprogressive attitudes” among some officers, leading to a culture of disbelief and secondary victimization[42].
• High Attrition Rates: A significant problem is the dramatic fall-out of cases within the criminal justice system, from initial reporting to investigation, prosecution, and ultimately, conviction[43]. This attrition is partly attributed to the unchecked discretion exercised by police and prosecutors and systemic failures.
• Victim Ambivalence: Victims often show reluctance to pursue criminal prosecution due to various factors, including the fear of reprisals from abusers, the potential financial impact if the perpetrator is incarcerated, and the immense emotional and psychological strain of navigating the criminal justice system.
• Lack of a Specific Domestic Violence Offence: The United Nations Committee on the Elimination of Discrimination against Women (CEDAW Committee) observed that the absence of a specific “domestic violence” offence in South African law hinders data collection and fails to send a clear message against this pervasive crime. Although acts constituting domestic violence are covered under general criminal law provisions like assault or rape, the lack of a standalone offense means the incident’s context as domestic violence is not always captured on criminal records, masking patterns of abuse.
• Inconsistent Sentencing: While mandatory minimum sentences exist for some sexual offences, the application can be inconsistent. There is concern that judges may still rely on “rape myths” or lenient interpretations of “substantial and compelling circumstances,” undermining the intent of the legislation to ensure severe punishment.

4. Recent Developments and Proposed Reforms

Acknowledging these challenges, South Africa has undertaken further legislative and policy reforms to enhance its response to GBV.

4.1 Recent Legislative Amendments

Three key pieces of legislation, signed into law by President Ramaphosa, came into effect on 5 August 2021:

• Criminal and Related Matters Amendment Bill: Aims to overhaul the Criminal Procedure Act, 1977, to make it more victim centric. This includes strengthening bail provisions, making it more difficult, though not impossible, for GBV offenders to be released on bail. It also broadens the scope of offences for which bail conditions can be tightened and requires courts to consider the victim’s safety and views during bail applications.
• Domestic Violence Amendment Bill: Seeks to optimize collaboration between government departments, clarify stakeholders’ roles, enhance the Act’s application for maximum civil protection, and address shortcomings like providing for remote online applications. It mandates the arrest of perpetrators where physical violence is involved.
• Criminal Law (Sexual Offences and Related Matters) Amendment Bill: Aims to expand the scope of the National Register of Sexual Offenders to include all sexual offences and vulnerable persons, including victims of domestic violence. It also introduces a new offence of “sexual intimidation”.

These bills aim to transform how government departments, police, and courts deal with cases of violence against vulnerable persons and women.

4.2 Calls for Specific Offences

The South African Law Reform Commission (SALRC) has revisited the need for a specific domestic violence offence or offences, building on recommendations from the High Level Panel on the Assessment of Key Legislation and the UN CEDAW Committee. The CEDAW Committee specifically recommended that South Africa “specifically criminalize and establish penalties commensurate with the gravity of all forms of domestic violence and femicide”.

There is also a growing call for specific offences for manifestations of domestic violence like strangulation or choking. Currently, these acts are typically charged as common assault, which fails to reflect their severity and predictive risk factor for femicide. UN Women has recommended that legislation “should provide specific penalties for strangulation”.

4.3 Whole-of-Society Approach

Both the NSP and the SALRC emphasize that legal reforms alone are insufficient. A “whole-of-society approach” is crucial, focusing on societal and normative change to address deep-rooted patriarchal views that perpetuate inter-generational domestic violence. This involves collaboration between government and civil society in awareness-raising, training, and provision of remedies.

The Commission for Gender Equality (CGE) plays a pivotal role in promoting accountability and monitoring sexual harassment as a form of GBV. The CGE also supports addressing police non-compliance through disciplinary action and ongoing training, monitoring, and evaluation, rather than solely through automatic criminal law responses.

 5. Suggestions / Way Forward

To effectively combat GBV in South Africa, a multi-faceted and integrated approach is essential, transcending mere legislative reform:

• Strengthen Implementation and Enforcement: While the legal framework is largely progressive, its effective implementation remains a critical weakness. This requires urgent and sustained efforts to ensure that police, prosecutors, and judicial officers consistently and competently apply existing laws. Non-compliance by law enforcement and court officials must be addressed through disciplinary action, continuous training, and robust monitoring and evaluation mechanisms. Training should include social context awareness to dispel myths and stereotypes about GBV victims.
• Enhance Victim-Centric Systems: The criminal justice system must prioritize the safety, dignity, and autonomy of GBV survivors. This includes:
• Ensuring efficient and sensitive access to justice that is quick, accessible, and responsive.
• Providing comprehensive, standardized, and confidential care and support services 24 hours a day, seven days a week, including health and mental health care, appropriate after-care, and referral systems.
• Addressing factors that deter victims from reporting, such as fear of reprisals and financial consequences, by providing adequate support systems and safe alternative accommodation.
• Address Societal Norms and Patriarchal Attitudes: Legal changes alone cannot dismantle the deeply rooted patriarchal norms and sexist attitudes that fuel GBV. A “whole-of-society” approach is crucial, integrating content on gender equality into curricula at all levels of education, conducting public awareness campaigns, and challenging toxic masculinities. This also entails addressing the pervasive normalisation of violence and the objectification of women’s bodies.
• Review and Potentially Introduce Specific Offences: The debate around a standalone domestic violence offence and specific offences for high-risk acts like strangulation should continue. While the SALRC is currently undecided on an umbrella offence for domestic violence, it recognizes the need for increased caution and appropriate charges for acts such as strangulation. The current classification of strangulation as common assault fails to adequately reflect its severity and predictive link to femicide.
• Improve Data Collection and Research: The absence of a specific domestic violence offence has hampered comprehensive data collection. Improved disaggregated data collection and robust research are essential to understand the extent and specific manifestations of GBV, including violence against LGBTQIA+ persons, and to assess the impact of interventions.
• Budgetary Allocation and Resource Mobilisation: Adequate and sustained resourcing is critical for the effective functioning of the criminal justice system, support services, and prevention programmes. This includes sufficient funding for forensic laboratories to clear backlogs, mobile police stations, and regional courts in rural areas.
• Leverage Technology: Utilize modern technologies, such as social apps and online platforms, for awareness campaigns, reporting mechanisms, and real-time data collection, ensuring that online spaces are also safe and free from violence.

Conclusion

South Africa has made commendable strides in establishing a progressive legal and policy framework to combat gender-based violence, underpinned by a constitution that champions human dignity, equality, and freedom from violence. Landmark judgments by the Constitutional Court and recent legislative amendments, such as those impacting bail provisions and expanding the National Register of Sexual Offenders, demonstrate a clear intent to strengthen victim protection and accountability for perpetrators.

However, the persistent and alarming rates of GBV and femicide highlight that laws on paper, no matter how progressive, are not enough. The effectiveness of these laws is significantly undermined by deep-seated societal patriarchal norms, systemic failures within the criminal justice system—including police attitudes and high attrition rates—and challenges in consistent implementation. The absence of a specific domestic violence offence and the need for greater recognition of high-risk acts like strangulation also reveal areas for potential legal enhancement.

The journey towards a truly violence-free society requires a sustained, comprehensive, and “whole-of-society” approach. This means not only reinforcing the legal framework and its rigorous enforcement but also investing heavily in prevention, education, and societal transformation to address the root causes of GBV. Until legal provisions are consistently applied, societal attitudes fundamentally shift, and victims are fully supported and empowered, the current laws, while a crucial foundation, will remain insufficient to fully eradicate the scourge of gender-based violence in South Africa.

Reference(S) / Bibliography

Cases

• S v Baloyi, 2000 (1) SACR 81 (CC).
• Carmichele v Minister of Safety and Security, 2001 (4) SA 938 (CC).
• Omar v Government of RSA, 2006 (2) SA 289 (CC).
• Masiya v Director of Public Prosecutions (Pretoria), 2007 (5) SA 60 (CC).
• Teddy Bear Clinic for Abused v Minister of Justice, 2014 (2) SA 168 (CC).

Legislation

• South Africa (S. Afr.). Constitution of the Republic of South Africa, 1996.
• The Domestic Violence Act 116 of 1998 (S. Afr.).
• The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (S. Afr.).
• The Protection from Harassment Act 17 of 2011 (S. Afr.).
• The Criminal Procedure Act 51 of 1977 (S. Afr.).
• The Criminal Law Amendment Act 105 of 1997 (S. Afr.).

Academic Dissertations and Research Papers

• BEATRICE NOMBULELO BOKWA, GENDER-BASED VIOLENCE IN SOUTH AFRICA: TOWARDS LEGAL REFORM (2021) (LL.M. thesis, University of Pretoria).
• Lillian Artz & Dee Smythe, Introduction: Should We Consent? in SHOULD WE CONSENT? RAPE LAW REFORM IN SOUTH AFRICA 1, 1–21 (Lillian Artz & Dee Smythe eds., 2008).
• Dee Smythe & Samantha Waterhouse, Policing Sexual Offences: Policies, Practices and Potential Pitfalls in SHOULD WE CONSENT? RAPE LAW REFORM IN SOUTH AFRICA 198, 198–223 (Lillian Artz & Dee Smythe eds., 2008).
• Yonina Hoffman-Wanderer, Sentencing and Management of Sexual Offenders in SHOULD WE CONSENT? RAPE LAW REFORM IN SOUTH AFRICA 224, 224–261 (Lillian Artz & Dee Smythe eds., 2008).
• Heléne Combrinck, Claims and Entitlements or Smoke and Mirrors? Victims’ Rights in the Sexual Offences Act in SHOULD WE CONSENT? RAPE LAW REFORM IN SOUTH AFRICA 262, 262–282 (Lillian Artz & Dee Smythe eds., 2008).

 Government and Official Publications

• NAT’L STRATEGIC PLAN ON GENDER-BASED VIOLENCE & FEMICIDE, 2020.
• SOUTH AFRICAN LAW REFORM COMMISSION, ISSUE PAPER 42, PROJECT 100, DOMESTIC VIOLENCE: THE CRIMINAL LAW RESPONSE (2021).
• SOUTH AFRICAN LAW REFORM COMMISSION, MEDIA STATEMENT BY THE SOUTH AFRICAN LAW REFORM COMMISSION, PROJECT 100: DISCUSSION PAPER ON DOMESTIC VIOLENCE: THE CRIMINAL LAW RESPONSE (2022).
• Prevention and Combating of Hate Crimes and Hate Speech Bill, Bill No. B9–2018 (S. Afr.).
• COMM. ON THE ELIMINATION OF DISCRIMINATION AGAINST WOMEN, GENERAL RECOMMENDATION NO. 35 ON GENDER-BASED VIOLENCE AGAINST WOMEN, UPDATING GENERAL RECOMMENDATION NO. 19 (2017).
• COMM. ON THE ELIMINATION OF DISCRIMINATION AGAINST WOMEN, Report of the Committee ‘Inquiry concerning South Africa under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women’, CEDAW/C/ZAF/IR/1 (2021).
• COMM. FOR GENDER EQUALITY, A RESEARCH REPORT ON SEXUAL HARASSMENT IN HIGHER EDUCATION INSTITUTIONS (2024).

International Protocols and Conventions

• Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, adopted July 11, 2003 (Maputo Protocol).
• Convention on the Elimination of All Forms of Discrimination Against Women, adopted Dec. 18, 1979, G.A. Res. 34/180, 34 U.N. GAOR Supp. No. 46, at 193, U.N. Doc. A/34/46.

Internet Sources

• President Cyril Ramaphosa: Address to the Nation on Public and Gender-Based Violence (Sept. 5, 2019), https://www.gov.za/speeches/president-cyril-ramaphosa-address-nation-public-and-gender-based-violence-5-sep-2019-0000#.
• Ramaphosa Signs into Law 3 Anti-GBV Bills, Bringing More Protection to Victims (Jan. 31, 2022), https://ewn.co.za/2022/01/31/ramaphosa-signs-into-law-3-anti-gbv-bills-bringing-more-protection-to-victims.

Top of Form

[1] South African Law Reform Commission, Issue paper 42, Project 100 ,Domestic Violence: The Criminal Law Response, 8 Dec 2021, p19, para 2; SALC Research paper on Domestic Violence para 6,11,19

[2] RSA National Strategic Plan on Gender-Based Violence and Femicide 2020-2023 ,p12 para6 & p26,para 13,14,15; S v Baloyi 2000 (1) SACR 81 (CC) para 12

[3] Beatrice Nombulelo Bokwa,Gender-Based Violence in South Africa: Towards Legal Reform,2,p11,2021; South African Reform Commission, Issue paper 42, Project 100, Domestic Violence: The Criminal Law Reesponce, p12, para 1; RSA National Strategic Plan on Gender-Based Violence and Femicide 2020-2030 p35 ,para 5

[4] Omar v Government of RSA 2006 (2) SA 289 (CC) , para 16,17

[5] S v Baloyi 2000(1) SACR 81 (CC), p11,per SACHS J; Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC), P27,29,30, para 57 and 62, per Ackerman and Goldstone JJ

[6] Commission for Gender Equality, A research report on sexual harassment in higher education institutions, p3,7,10,11, Naledi Selebano eds,2024; National Strategic Plan on Gender-Based Violence and Femicide 2020-2030, RSA ,p34

[7] ibid

[8] South African Law Reform Commission, Issue paper 42, Project 100, 8 Dec 2021, p35; National Strategic Plan on Gender-Based Violence and Femicide, RSA, p12

[9] Omar v Government of RSA 2006 (2) SA 289 (CC), per Van Der Westhuizen J, p6,7, para16,17; South African Law Reform Commission, Issue paper 42, Project 100, 8 Dec 2012, p35

[10] ibid

[11] Omar v Government of RSA 2006 (2) SA 289 (CC),per Van Der Westhuizen J, p6,7, para 16,17 ; S v Baloyi 2000 (1) SACR 81 (CC) ,per SACHS J, p11, para 11; South African Law Reform Commission, Issue paper 42, Project 100, 8 Dec 2021, p13; Carmichele v Minister of Safety and Security 2001
(4) SA 938 (CC), per Ackermans and Goldstone JJ, p27,29,30, para 57,62

[12] Omar v Government of RSA 2006 (2) SA 289 (CC), per Van Der Westhuizen J, p1, para1; South African Law Reform Commission, Issue 42, Project 100, 8 Dec 2021, p5, para 1, p20, para 1

[13] ibid

[14] Omar v Government of RSA 2006 (2) SA 289 (CC), per Van Der Westhuizen J, p10, para 21; South African Law Reform Commission, Issue 42, Project 100, 8 Dec 2021, p21 ; Juta, Should We Consent? Rape Law Reform of South Africa, p278, L Artz & D Smythe, eds,2008

[15] Commission for Gender Equality, A research report on sexual harassment in higher education institutions,Naledi Selebono eds, p9, 2024; National Strategic Plan on Gender-Based Violence and Femicide , RSA , 2020-2030, p36; South African Law Reform Commission , Issue paper 42, Project 100, 8 Dec 2021, p13; Juta, Should We Consent? Rape Law Reform of South Africa, p8,9, L Artz & D Symthe eds, 2008

[16] Beatrice Nombulelo Bokwa, Gender-based violence in South Africa: Towards Legal Reform, GBVSATLR, 2 ,p 14 , 2021; National Strategic Plan on Gender-Based Violence and Femicide ,RSA, 2020-2030, p75

[17] National Strategic Plan on Gender Based Violence and Femicide , RSA, 2022030, p 90; Juta , Should We Consent? Rape Law Reform of South Africa, p9, L Artz & D Symthe eds, 2008

[18] Protection from Harrassment Act 17, 2011, Preamble, 2 Dec, SA

[19] National Strategic Plan on Gender-Based Violence  and Femicide, RSA, 2020-2030, p100; South African Law Reform Commision , Issue paper 42, Project 100, 8 Dec 2021, p23,24

[20] South African Law Reform Commission , Issue paper 42, Project 100, 8 Dec 2021, p13; Juta, Should We Consent? Rape Law Reform of South Africa, p225, L Artz& D Symthe eds, 2008

[21] National Strategic Plan on Gender-Based Violence and Femicide, RSA, 2020-2030, p18,22

[22] ibid

[23] National Strategic Plan on Gender-Based Violence and Femicide, RSA, 2020-2030,p23

[24] National Strategic Plan on Gender-Based Violence and Femicide, RSA, 2020-2030,p48

[25] Committee on the Elimination of Discrimination against Women, Convention on Elimination of All forms of Discrimination against Women, CEDAW 1, p3, 2017

[26] Commission for Gender Equality, A research report on sexual harassment in higher education, p5,2024; National Strategic Plan on Gender-Based Violence and Femicide, RSA, 2020-2030, p28

[27] 2000 (1) SACR (CC)

[28]  S v Baloyi 2000 (1) SACR 81 (CC), p11, para10, 12, per SACHS J

[29] ibid, p14, para 12,13

[30] S v Baloyi 2000 (1) SACR 81 (CC), p29,para 26, per SACHS J

[31] 2006 (2) SA 289 (CC)

[32] Omar v Government of RSA 2006 (2) SA 289 (CC), para 11, per Van Der Westhuizen

[33] Ibid,para 60,61

[34] ibid

[35] 2001 (4) SA 938 (CC)

[36] Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC), para 29,30,38,56,57,62,64, per Ackermann and Goldstone JJ

[37] Omar v Government of RSA 2006 (2) SA 289 (CC), para 17, per Van Der Westhuizen; Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC), para 62,64, Ackermann and Goldstone JJ

[38] Juta, Should We Consent? Rape Law Reform of South Africa, p24,25, L Artz & D Symthe eds, 2008

[39] ibid

[40] Beatrice Nombulelo Bokwa, Gender-based Violence in South Africa: Towards Legal Reform, GBVSATLR,2, p6,2021

[41] Ibid;Omar v Government of RSA ,para 17

[42] Juta, Should We Consent? Rape Law Reform of South Africa, p 209, L Artz & D Symthe eds, 2008

[43] Ibid, p 1,204