Published On: 12th November 2025
Authored By: Kwanele Msibi
University of the Western Cape
INTRODUCTION
South Africa’s legal framework is rich with statutes aimed at protecting vulnerable populations, particularly survivors of gender-based violence (GBV), children, and marginalized communities. Yet, the persistent failure of these laws to produce meaningful change reveals a deeper constitutional crisis. This article critically examines the gap between statutory intent and practical enforcement, arguing that the mere existence of protective legislation does not guarantee justice. The term “falling statute” reflects a systemic breakdown: laws that are constitutionally sound in theory but ineffective in practice. Despite the Constitution’s commitment to dignity, equality, and life, vulnerable groups continue to experience harm due to poor implementation, lack of accountability, and institutional inertia. This failure amounts to a betrayal not of the law’s text, but of its constitutional promise. The Domestic Violence Act 116 of 1998 and the Children’s Act 38 of 2005 are two such laws that promise safety, dignity, and justice. Yet, despite their progressive language and constitutional alignment, these statutes often fail in practice. Through legal analysis, case law, and statute critique, this article explores how statutory protections collapse under weak enforcement mechanisms, under-resourced institutions, and a justice system that often prioritizes procedure over people. It calls for a shift in legal culture, a move beyond formal compliance toward substantive justice rooted in constitutional values.
CRITICAL ANALYSIS
The Domestic Violence Act 116 of 1998 was introduced to protect victims of gender-based violence, especially in cases where abuse happens within the home.[1] It allows survivors to apply for protection orders, gives police the power to intervene, and offers access to legal remedies. On paper, the Act supports key constitutional rights such as dignity, freedom, and safety from violence. But in reality, its enforcement has been weak, slow, and often harmful to those it was meant to protect. Section 7 of the Act gives courts the authority to issue protection orders that stop abusive behaviour.[2] Section 8 allows police to arrest an abuser without a warrant if they break the terms of the order.[3] These sections are meant to provide quick and effective protection. Yet survivors often face serious obstacles. Police may treat domestic violence as a private issue and refuse to act, even when protection orders are violated. Court processes are slow, forcing survivors to wait while abuse continues. Support services like shelters, counselling, and legal aid are underfunded and hard to access. Many survivors also face secondary victimization they are blamed, doubted, or pressured to forgive their abusers. This undermines the purpose of the law and leaves survivors feeling unsafe and unsupported. The failure to enforce the Act properly reveals a deeper problem: a constitutional betrayal. The law promises protection, but without strong implementation, it becomes a hollow promise. Vulnerable people are left to navigate a legal system that seems helpful on the surface but is, in practice, unresponsive and indifferent. This failure is not just procedural; it is constitutional. In S v Baloyi 2000 (2) SA 425 (CC), the Constitutional Court affirmed that the State has a duty to protect individuals from private violence under Section 12.[4] Yet, the gap between legal promise and lived experience remains vast. The Domestic Violence Act, without proper enforcement, becomes symbolic rather than substantive.
On the other hand Children’s Act 35 of 2005 was created to protect children and promote their well-being, in line with Section 28 of the Constitution.[5] Section 9 emphasizes that the best interests of the child must be the most important consideration in any matter involving children.[6] Section 150 of the Act also outlines when a child is considered in need of care and protection, such as in cases of abuse, neglect, or abandonment.[7] On paper, the Act is progressive and rights-based. It gives children the right to be heard, to receive care, and to be protected from harm. But in practice, many children continue to suffer because the law is not properly enforced. Social workers are often overwhelmed and under-resourced, which leads to delays in responding to cases. Schools, clinics, and police do not always work together, meaning warning signs are missed and children remain in unsafe environments. Many children do not have access to legal representation, especially in custody disputes or when they are in conflict with the law. Even though the Act says children should be involved in decisions that affect them, their voices are often ignored in courtrooms and care proceedings. This failure to implement the Act properly is not just a technical issue; it is a constitutional betrayal. The law promises protection, but without strong systems and proper support, those promises mean little. Children are left vulnerable, and the rights guaranteed to them by the Constitution are denied in practice. This disconnect is deeply troubling. In Centre for Child Law v Minister of Justice 2009 (6) SA 632 (CC), the Court ruled that mandatory sentencing laws for children conflicted with their constitutional rights.[8] Similarly, M v The State 2007 (2) SACR 539 (CC) emphasized the need to consider children’s well-being when sentencing primary caregivers.[9] These cases show that while the judiciary tries to uphold constitutional values, the statutory system often fails to deliver.
SUGGEST WAY FORWARD
The failures of the Domestic Violence Act and the Children’s Act are not simply technical errors; they reflect deeper moral and constitutional shortcomings. These laws were created to protect vulnerable groups, yet their poor implementation has left many survivors and children without real support. To persuade the country, we must move beyond pointing out problems and begin building meaningful solutions. A new path forward requires several key changes. First, enforcement must be strengthened. Police officers and court officials need proper training to handle cases of gender-based violence and child protection with urgency and care. There must also be clear systems to hold officials accountable when they ignore or mishandle complaints. Fast-track procedures for protection orders and child welfare hearings should be introduced to prevent delays that put lives at risk. Second, support services must be expanded. Shelters, counselling, and legal aid, especially in rural and underserved areas, need proper funding. Strong coordination between schools, clinics, police, and social workers is essential to ensure children do not fall through the cracks. Third, survivors and children must be placed at the center of legal processes. Their voices should shape outcomes, not be treated as an afterthought. Legal representation and trauma-informed support must be made available to help them navigate the system safely and with dignity. Fourth, legislative reform is needed. Outdated or vague sections of both Acts must be reviewed and updated to reflect current realities and international standards. The law must clearly require state actors to act when rights are at risk, not leave it to discretion. Finally, public education and cultural change are vital. National campaigns should help communities understand the seriousness of domestic violence and child abuse, encouraging people to report it and support survivors without stigma. Statutes must be more than words on paper. They must be enforced, understood, and upheld with integrity. The Constitution demands action, not just promises. If we are to persuade the country, we must rebuild our legal system in a way that truly protects the vulnerable. Only then will the falling statute rise again, not as a broken promise, but as a living commitment to justice, dignity, and safety for all.
CONCLUSION
The Domestic Violence Act and the Children’s Act were crafted to protect the vulnerable and uphold the constitutional values of dignity, equality, and life. Yet, as this article has shown, the gap between statutory promise and lived experience remains wide. Survivors of gender-based violence face delayed justice, under-resourced support systems, and secondary victimization. Children, despite being at the heart of constitutional protections, continue to suffer due to weak enforcement, poor coordination, and exclusion from decisions that shape their lives. Case law from S v Baloyi to Centre for Child Law v Minister of Justice reveals how courts have tried to uphold constitutional principles in the face of statutory failure. But judicial intervention alone cannot repair a structurally indifferent system. The law must be more than symbolic; it must be enforced with urgency, compassion, and accountability. To persuade the country, we must demand a legal culture that protects survivors and children not just in theory, but in practice. This means strengthening enforcement, investing in support services, reforming legislation, and shifting public attitudes. Only then can we transform falling statutes into living instruments of justice. The Constitution calls us to act not with words alone, but with systems that protect, empower, and restore.
BIBLIOGRAPHY
CASE LAWS
M v The State 2007 (2) SACR 539 (CC).
Centre for Child Law v Minister of Justice 2009 (6) SA 632 (CC).
S v Baloyi 2000 (2) SA 425 (CC).
LEGISLATION
Domestic Violence Act 116 of 1998.
Children’s Act 38 of 2005.
[1] Domestic Violence Act 116 of 1998.
[2]Domestic Violence Act 116 of 1998, s 7.
[3] Domestic Violence Act of 1998, s 8.
[4] S v Baloyi 2000 (2) SA 425 (CC).
[5] Children’s Act 38 of 2005.
[6] Children’s Act 38 of 2005, s 9.
[7] Children’s Act 38 of 2005, s 150.
[8] Centre for Child Law v Minister of Justice 2009 (6) SA 632 (CC).
[9] M v The State 2007 (2) SACR 539 (CC).
