Gender-Based Violence within Marriage in South Africa: Legal Framework Reforms and Challenges

1 Introduction

Gender-Based Violence (GBV) remains a devastating crisis in South Africa, with the country’s femicide rate reported to be five times higher than the global average . Within the context of marriage and domestic relationships, GBV manifests in physical, sexual, emotional, and economic forms, creating a war-like environment for countless women. In response to this national emergency, South Africa has undertaken significant legal reforms, culminating in a robust legislative framework designed to protect victims, hold perpetrators accountable, and dismantle the patriarchal norms that perpetuate this violence. This article examines the evolution of South Africa’s legal response to marital GBV, analysing key legislation, pivotal case law, and the persistent challenges in implementation.

2 The Legal Framework for Combating GBV

South Africa’s approach to GBV is grounded in its Constitution, which enshrines the rights to equality, human dignity, freedom, and security of the person. The Bill of Rights imposes a duty on the state to protect these rights, creating a positive obligation to enact laws that prevent, combat, and punish violence against women.

2.1 The Domestic Violence Act and Its Amendment

The Domestic Violence Act 116 of 1998 (DVA) was a landmark piece of legislation that provided the first comprehensive definition of domestic violence, extending beyond physical abuse to include sexual, emotional, psychological, and economic abuse, as well as intimidation, harassment, and stalking . The DVA empowered victims to apply for protection orders, placing a statutory duty on police to assist them.

Despite its progressive nature, implementation gaps persisted. This led to the Domestic Violence Amendment Act 14 of 2021 (DVAA), which came into operation on 5 August 2022 . The DVAA strengthened the original act by, among other things, providing clearer definitions, expanding the duties of law enforcement, and offering greater protections for vulnerable persons.

2.2 The “Anti-GBV Laws” of 2021/2022

In a concerted effort to address systemic failures, the South African parliament passed a package of three powerful laws often collectively referred to as the “anti-GBV laws” . These are:

• The Criminal and Related Matters Amendment Act 12 of 2021: This act specifically tightened bail conditions and strengthened sentencing provisions for offences against vulnerable persons, including victims of domestic violence .
• The Criminal Law (Sexual Offences and Related Matters) Amendment Act 13 of 2021: This legislation amended the Sexual Offences Act to improve the management of sexual offenders and enhance protections for survivors.
• The Domestic Violence Amendment Act 14 of 2021: As noted above, this act modernized and strengthened the original DVA.

3 Key Legal Reforms and Their Impact on Marital GBV

The recent legal amendments have introduced paradigm-shifting procedures that fundamentally alter how GBV cases within marriage are handled within the criminal justice system.

3.1 Stricter Bail Provisions

The amendments to the Criminal Procedure Act (CPA) have revolutionized bail proceedings in GBV cases, making victim safety the paramount concern.

• Reverse Onus: Section 60(11)(c) of the CPA now places a reverse onus on the accused in GBV-related offences . This means the detention of the accused is the default position, and the accused bears the burden to demonstrate why their release would be in the interests of justice. This places GBV on par with other serious Schedule 5 offences.
• Elimination of Police Bail: The law has completely removed the ability of police officials or prosecutors to grant bail in GBV cases. Only a court now holds this authority, ensuring a more rigorous judicial assessment and preventing perpetrators from being released within hours of arrest, which previously allowed them to return home and intimidate victims.
• Mandatory Disclosure: Accused persons are now compelled to disclose any existing protection orders issued for the complainant’s protection. Failure to do so results in an automatic bail refusal.

3.2 Integrated Protection Order Process

One of the most innovative reforms is the integration of protection orders into the bail process. Section 60(12)(b) of the CPA now requires criminal courts to conduct inquiries into the need for a protection order during the bail hearing itself . This allows magistrates to issue final protection orders, equivalent to those under the DVA, without the victim having to navigate a separate civil application process. This streamlines access to protection and eliminates bureaucratic barriers that often left women vulnerable .

3.3 Consequences for Divorce and Family Law

The stricter bail regime and integrated protection orders have significant ripple effects in family law. A protection order issued during a bail hearing can profoundly influence subsequent divorce proceedings. For instance, if an accused spouse is barred from the family home as a bail condition, this can shift the status quo, granting the victim de facto occupancy and strengthening their position in claims for interim maintenance and primary child custody . Family courts give considerable weight to such protection orders as evidence of risk when determining the best interests of the child under the Children’s Act 38 of 2005 .

4 Judicial Sentencing and Pervasive Attitudes

The judiciary has consistently condemned GBV, recognizing its corrosive impact on society. In S v Makatu, the court emphasized that violent crimes like murder and sexual offenses “significantly threaten the fundamental societal and ethical structure” and that “virtually every female in the country is at risk of becoming a victim” . This sentiment was echoed in Tshabalala v S, where the court observed that hardly a day passes without a reported incident of GBV .

Despite strong judicial language, deeply ingrained societal attitudes continue to fuel the crisis. A 2024 national study by the Human Sciences Research Council revealed troubling norms: nearly 70% of men surveyed believed a wife should obey her husband, and 15% felt a husband had the right to “punish” his wife . Furthermore, almost 23% believed a wife may not refuse sex with her husband, indicating a poor understanding of marital rape . These statistics underscore that while the legal framework is robust, changing societal consciousness is a parallel and essential battle.

5 Challenges and the Path Forward

Despite the progressive legal framework, significant implementation challenges remain.

• Systemic Strain: Channeling all GBV bail applications through the courts has increased the workload on an already strained judicial system, potentially creating backlogs .
• Inconsistent Application: There are observations of inconsistent implementation of the new laws across different courts, leading to unequal protection for victims .
• Resource and Training Gaps: Effective implementation requires continuous training for police, prosecutors, and magistrates, as well as adequate resources for victim support services .
• Cultural and Patriarchal Norms: As the 2024 study shows, harmful traditional beliefs about gender roles and the acceptability of violence remain a significant driver of GBV .

The path forward requires a multi-pronged approach. The government must intensify efforts to fully implement the National Strategic Plan (NSP) on GBV and Femicide and promptly establish the coordinating body required under the 2024 National Council on GBV and Femicide Act . Furthermore, holistic interventions targeting individual, interpersonal, community, and societal levels are needed to change the attitudes that enable violence .

6 Conclusion

South Africa has established one of the world’s most advanced legislative arsenals to combat GBV within marriage. The recent amendments to bail laws and the DVA represent a courageous and necessary shift towards a victim-centric justice system that prioritizes safety and accountability. However, the law alone is not a panacea. The persistent “scourge” of GBV, as termed by the courts, demands not only flawless implementation of these laws but also a concerted societal project to dismantle the patriarchal norms that sustain it. For the thousands of women living in fear within their own homes, the promise of the Constitution and these laws must be translated into tangible safety and justice.

7 Reference(S):

1. South Africa’s New GBV Bail Laws: Complete Guide to Criminal Procedure Act. DivorceLaws.co.za. Available at: https://www.divorcelaws.co.za/south-africa-gbv-bail-law-changes-criminal-procedure-act-guide.html [Accessed 31 October 2025].
2. Gender Based Violence. DivorceLaws.co.za. Available at: https://www.divorcelaws.co.za/gender-based-violence.html [Accessed 31 October 2025].
3. The Efficacy of “Anti-Gender-Based Violence Laws” in Addressing the Scourge of Gender-Based Violence in South Africa. Law and World Journal. Available at: https://www.lawandworld.ge/index.php/law/article/view/791 [Accessed 31 October 2025].
4. Confronting South Africa’s Crisis of Gender-Based Violence. Human Rights Watch. Available at: https://www.hrw.org/news/2024/11/25/confronting-south-africas-crisis-gender-based-violence [Accessed 31 October 2025].
5. Criminal and Related Matters Amendment Act 12 of 2021.
6. Domestic Violence Amendment Act 14 of 2021.
7. S v Makatu (Case No. 236/05) [2006] ZASCA 72.
8. Tshabalala v S (Case No. 169/2019) [2020] ZASCA 93.