Authored By: Lanzar Williams
University of the Witwatersrand
I. Introduction
The Republic of South Africa remains one of the most dangerous places to be a woman globally,1 albeit described as a progressive constitutional democracy. The rapidly growing rates of femicide and gender-based violence (GBV) continue to expose this devastating paradox: a constitutional dispensation that promises dignity, equality, and freedom,2 and a social reality that routinely denies women these guarantees. This dissonance between constitutional aspiration and lived experience demands jurisprudential interrogation, as mere moral outrage cannot suffice.
“Painting the Republic Purple” evokes the historic 1989 Cape Town protest, which saw police officers spraying anti-apartheid demonstrators with purple dye to mark and disperse them. The motif of bodies stained purple became a symbol of state violence and public resistance, coining the phrase: “The purple shall govern.”3 This colour thus carries with it the spirit of resistance in the hopes of freedom, one that the country saw relived in 2025. The Women for Change G20 Women’s Shutdown on 21 November 20254 saw the country changing profile pictures on social media to purple backgrounds in solidarity with survivors and victims of GBV and femicide.5 As such, the metaphor acquires a renewed meaning. The purple that stains South Africa is no longer simply the residue of apartheid repression; it is the bruising of women’s bodies, the institutional indifference that allows violence to persist, and the systemic failure to translate constitutional rights into material protection.
This article undertakes a jurisprudential enquiry into femicide and gender-based violence in South Africa, examining whether constitutional frameworks — including the rights to equality, dignity, life, and freedom and security of the person — have been meaningfully realised in judicial practice. Through an analysis of key Constitutional Court decisions and the development of state liability, the argument herein centralises around the idea that while South African jurisprudence has recognised positive duties to protect women, the legal system remains largely reactive. Transformative constitutionalism demands more than post-hoc accountability; it requires proactive disruption of the structural conditions that sustain gendered violence.
II. An Examination of the Core Issues
(a) Constitutional Framework
The post-democratic dispensation and constitutional order in South Africa are often described as transformative, advocating for a concept of transformative constitutionalism in order to achieve a true “post-apartheid becoming.”6 The Constitution of the Republic of South Africa, 1996 (“the Constitution”) commits itself to healing the divisions of the past, enacted in response to the grotesque human rights violations of the Apartheid regime. In so doing, the state is vested with the responsibility of establishing a society based on democratic values, social justice, and fundamental human rights. As the supreme law of the land,7 the rights contained in the Bill of Rights must form the cornerstone of this transformative project.8
The public is often fed the notion that “all are equal before the law,” a provision enshrined in section 9 of the Constitution prohibiting discrimination on, among other factors, gender and sex. Coherently, section 10 protects the right to human dignity, while section 11 protects the right to life.9 Additionally, section 12 provides that everyone has the right to be free from all forms of violence, from either public or private sources. Taken together, these provisions create a robust normative framework against gender-based violence. Arguably, this is the promise to the nation — that every individual is, and should be, protected — though it seems that certain individuals are placed at the upper end of the hierarchy when it comes to state protection. The Constitution does not conceive of rights as mere negative protections against state interference, but imposes a positive obligation on organs of state to “respect, protect, promote and fulfil” the rights enshrined in the Bill of Rights.10 Upon reflection, this formulation is critical, recognising that violence against women is not merely a private matter, but a constitutional tragedy requiring active state intervention.
In light of the above, the persistence of femicide and GBV raises the following troubling question: if the constitutional architecture is so progressive, why does South Africa continue to experience endemic gendered violence? The answer does not lie in the absence of rights, but in the fundamental issue of the constitutional right overpromised, and the institutional implementation underdelivered.
(b) State Liability and Case Law
In several landmark cases, the Constitutional Court has recognised that the state bears an active and positive duty to protect those persons who are most vulnerable from violence and prejudice. While the general rule remains that omissions are prima facie lawful, a positive duty to act is created in exceptional circumstances that the law regards as sufficient to give rise to a legal duty to prevent harm — specifically in this context, a special relationship to protect.11
In Carmichele v Minister of Safety and Security,12 the court confronted the failure of the police and public prosecutors to oppose bail for a man with a history of sexual violence. Due to the state’s failure, the accused subsequently attacked the applicant. The judgment affirmed that the development of the common law must align with constitutional values, including the protection of women from sexual violence, and confirmed that the state may be held delictually liable where it fails to fulfil its constitutional obligations to protect fundamental rights.13 Once again, the promise has been made on paper; the execution of such remains but a fiction. Surely the judgment in Carmichele should have acted as a call to action for organs of state to implement stricter systems for the protection of women from sexual violence — alas, as we presently observe in South Africa today, this is not the case.
The court in Minister of Safety and Security v Van Duivenboden emphasised the same issue, in that the state’s constitutional duties require proactive measures to prevent harm where authorities are aware of foreseeable risks.14 This case reinforced the concept that omissions, not only direct actions, may attract constitutional accountability.15 The issue thus becomes: in a country where women are a vulnerable demographic owing to the prevalence of sexual violence, is the risk of harm not foreseeable enough for the state to actively take measures to prevent it?
Earlier, in S v Baloyi, the court recognised the nature of domestic violence as a pervasive social problem rooted in patterns of systemic gender inequality. The judgment acknowledged that violence against women is not merely an individual misconduct, but a manifestation of entrenched power imbalances. Notionally, domestic violence has a lucrative and repetitive nature with a ripple effect across other domains of life, cutting across race, class, culture, and geography, and frequently goes unpunished because of its concealed character.16 As such, it is arguable that courts must undertake to critically analyse cases of abuse and expose the inherent underlying power imbalances. To achieve this, greater weight should be accorded to victim impact statements, and the burden of proof should shift to the accused. “Who is the child of a lesser God?”, echo the students at the University of the Witwatersrand — similarly, I ask: whose right to a fair trial17 trumps the constitutional right of another to freedom from violence?18
Collectively, these decisions mark a doctrinal shift from viewing violence as a private matter to recognising it as a constitutional issue requiring positive state duties. The Constitutional Court has taken note of the South African GBV context and must develop the legal framework into one that actively curbs the growing issue of the right overpromised by the Constitution and the protection underdelivered by organs of state. Jurisprudence in this regard, however, remains largely reactive, as state liability is typically triggered only after harm has occurred. The law compensates; it does not consistently prevent.
(c) Femicide as Structural Violence: A Jurisprudential Frame
While South African courts have increasingly acknowledged the seriousness of gender-based violence, a jurisprudential enquiry requires deeper interrogation into the structural nature of femicide. Feminist legal scholars have long argued that violence against women cannot be understood as isolated criminal acts; rather, it is embedded within social, economic, and institutional structures that reproduce gender-powered hierarchies.
MacKinnon’s dominance theory posits that law has historically reflected and reinforced male power.19 Bartlett concurs, arguing that gender-based violence is not aberrational but systemic, formed by a gendered hierarchy of allegedly neutral standards and principles formulated to develop and foster male advantage.20 It is sustained by cultural norms, economic dependency, and institutional inertia. Within the South African context, these dynamics intersect with race, poverty, and the legacies of apartheid spatial planning — thus, women in economically marginalised communities are disproportionately vulnerable, often lacking access to effective policing, safe housing, or legal resources.
The concept of “structural violence” is equally instructive, denoting harm produced by institutional arrangements that prevent individuals from meeting basic needs or exercising fundamental rights.21 When police fail to respond promptly to protection order violations, when bail is routinely granted without rigorous risk assessment, or when survivors encounter secondary victimisation in courtrooms, the harm is not merely accidental but systemic.
The Constitution explicitly guarantees freedom from violence from both public and private sources,22 recognising that the state cannot retreat behind the public-private divide, though in practice, institutional responses to gender-based violence often remain inconsistent. The persistence of femicide suggests that legal recognition of rights has not been matched by structural transformation. A jurisprudence that truly confronts femicide must therefore move beyond reactive adjudication. It must interrogate how legal processes, evidentiary standards, prosecutorial discretion, and bail practices may inadvertently reproduce vulnerability. The question should not be whether the state is liable after the harm has occurred, but whether the legal system is organised in a manner that meaningfully prevents harm in the first instance.
(d) Legislative Framework: Proliferation without Protection?
There is no dispute that South Africa possesses substantial legislation addressing gender-based violence. The Domestic Violence Act23 and the Criminal Law (Sexual Offences and Related Matters) Amendment Act,24 along with subsequent reforms, have expanded definitions, strengthened protection orders, and enhanced sentencing frameworks. National strategic plans on GBV and femicide further signal political recognition of the crisis. However, legislative proliferation does not automatically translate into effective protection. The jurisprudential challenge lies in implementation: protection orders are often breached without swift enforcement, survivors report inconsistent police responses, and court backlogs delay justice. These gaps reveal a disjuncture between normative commitment and institutional capacity.
Upon reflection, the criminal law model itself may be insufficient. While harsher sentences and expanded offences signal condemnation, they operate retrospectively — the law intervenes after violence has occurred. A purely punitive approach therefore risks obscuring the preventative and socio-economic dimensions of the problem. Specialised sexual offences courts and dedicated GBV units represent important institutional innovations, yet their reach remains uneven, particularly in rural and under-resourced areas. Transformative constitutionalism demands equitable access to justice across geography and class; without sustained funding, training, and accountability mechanisms, however, legislative reform risks becoming symbolic rather than substantive.
The jurisprudential question thus becomes whether the state’s positive obligations are satisfied merely by enacting laws, or whether they require demonstrable effectiveness. If rights are to be meaningful, protection must be practical, not theoretical.
(e) Towards a Transformative Jurisprudence
South Africa’s constitutional project is explicitly transformative, envisioning long-term social change through legal interpretation and institutional development.25 In the context of femicide, this requires courts to adopt a charitable interpretive posture that foregrounds gendered vulnerability and structural inequality.26
First, courts should strengthen the standard for state accountability in cases involving foreseeable risk. Where authorities are aware of patterns of abuse, failure to act should attract rigorous scrutiny, and delictual liability — as recognised in Carmichele and Van Duivenboden — should not remain exceptional but become a meaningful deterrent against institutional complacency. Second, bail jurisprudence warrants closer constitutional examination. Given the recurring reality of repeat offenders, judicial officers must apply constitutional values (dignity, equality, and life) when assessing risk, and the presumption of innocence must be balanced against the state’s duty to protect vulnerable individuals from foreseeable harm. Third, a transformative approach requires intersectional sensitivity. Violence does not affect all women equally: black women, poor women, queer women, and women in rural areas face compounded vulnerabilities.27 A jurisprudence attentive to intersectionality would ensure that equality analysis reflects lived realities rather than abstract neutrality. Finally, reparative justice mechanisms should be strengthened — compensation for state failure, psychosocial support for survivors, and institutional reform orders may better align constitutional remedies with transformative aims.
Courts possess wide remedial powers; the question is whether they are being deployed ambitiously enough to address systemic gendered violence. Transformative constitutionalism is not passive — it demands active disruption of patterns that entrench inequality.28 If femicide continues unabated, the constitutional promise risks becoming aspirational rhetoric rather than lived reality.
III. Conclusion
The metaphor “painting the Republic purple” captures a dual reality: recalling a history of visible state violence and public resistance, and symbolising the pervasive bruising of women’s bodies and the institutional indifference that allows such harm to persist. South Africa’s Constitution provides one of the most progressive normative frameworks in the world. Through decisions such as Carmichele, Van Duivenboden, and Baloyi, the Constitutional Court has affirmed that the state bears positive duties to protect women from violence. Yet jurisprudence alone cannot eradicate femicide if it remains primarily reactive. A meaningful response requires a jurisprudence that is preventative, intersectional, and unapologetically transformative — requiring courts to interpret constitutional rights in a manner that foregrounds gendered vulnerability and demands institutional accountability, and requiring the state to move beyond legislative symbolism towards measurable protection.
Femicide is not merely a criminal justice issue; it is a constitutional crisis. Until the rights to dignity, life, equality, and freedom from violence are materially realised for women, the project of transformation remains incomplete. The answer does not lie in whether South Africa possesses the legal tools to confront gender-based violence, but rather whether those tools will be wielded with sufficient urgency, imagination, and constitutional fidelity to ensure that the purple staining the nation becomes a symbol of resistance and justice, rather than one of recurring harm.
Reference(S):
Primary Sources
Constitution
S. Afr. Const. 1996 §§ 2, 7(2), 9, 10, 11, 12(1)(c).
Case Law
Carmichele v Minister of Safety and Security (2002) 1 SACR 79 CC.
Minister of Safety and Security v Van Duivenboden (2002) 6 SA 431 SCA.
Minister van Polisie v Ewels (1975) 3 SA 590 A.
S v Baloyi (2000) 1 SACR 81 CC.
S v Makwanyane (1995) 2 SACR 1 CC (per O’Regan J, concurring).
Legislation
Criminal Law (Sexual Offences and Related Matters) Amendment Act 13 of 2021.
Criminal Procedure Act 51 of 1977.
Domestic Violence Act 116 of 1998.
Secondary Sources
Journal Articles and Books
Katharine T. Bartlett, ‘MacKinnon’s Feminism: Power on Whose Terms?’ (1987) Duke Law Scholarship Repository 1560.
Kimberle Crenshaw, ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Colour’ (1991) 43 Stanford Law Review 1241.
Johan Galtung, ‘Violence, Peace, and Peace Research’ (1969) 6 Journal of Peace Research 167 (Oxford University Press).
Karl E. Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 South African Journal on Human Rights 146.
Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law (Harvard University Press 1987).
Frank I. Michelman, ‘On the Uses of Interpretive “Charity”: Some Notes on Application, Avoidance, Equality and Objective Unconstitutionality from the 2007 Term of the Constitutional Court of South Africa’ (2008) 1 Constitutional Court Review 1.
Karin van Marle, ‘Reflections on Post-Apartheid Being and Becoming in the Aftermath of Amnesty: Du Toit v Minister of Safety and Security’ (2010) 3 Constitutional Court Review 347.
Internet Sources
‘6 Most Dangerous Countries for Women in 2024’ Times of India (27 August 2024) <https://timesofindia.indiatimes.com/travel/travel-news/6-most-dangerous-countries-for-women-in-2024/articleshow/112778084.cms>.
South African History Archive, ‘The Day the Purple Governed’, Sunday Times Heritage Project <https://sthp.saha.org.za/memorial/articles/the_day_the_purple_governed.htm>.
Women for Change, ‘G20 Women’s Shutdown’ (21 November 2025) <https://womenforchange.co.za/g20-women-shutdown/>.
Xolile Mtembu, ‘Why Is Everyone Changing Their Profile Pictures to Purple?’ IOL (November 2025) <https://iol.co.za/news/crime-and-courts/2025-11-05-women-for-change-call-for-nationwide-shutdown-against-femicide-ahead-of-g20/>.
Footnotes
1 ‘6 Most Dangerous Countries for Women in 2024’ Times of India (27 August 2024) <https://timesofindia.indiatimes.com/travel/travel-news/6-most-dangerous-countries-for-women-in-2024/articleshow/112778084.cms>.
2 S. Afr. Const. 1996.
3 South African History Archive, ‘The Day the Purple Governed’, Sunday Times Heritage Project <https://sthp.saha.org.za/memorial/articles/the_day_the_purple_governed.htm>.
4 Women for Change, ‘G20 Women’s Shutdown’ (21 November 2025) <https://womenforchange.co.za/g20-women-shutdown/>.
5 Xolile Mtembu, ‘Why Is Everyone Changing Their Profile Pictures to Purple?’ IOL (November 2025) <https://iol.co.za/news/crime-and-courts/2025-11-05-women-for-change-call-for-nationwide-shutdown-against-femicide-ahead-of-g20/>.
6 Karin van Marle, ‘Reflections on Post-Apartheid Being and Becoming in the Aftermath of Amnesty: Du Toit v Minister of Safety and Security’ (2010) 3 Constitutional Court Review 347, 350–353.
7 S. Afr. Const. § 2.
8 S. Afr. Const. § 7(2).
9 S v Makwanyane (1995) 2 SACR 1 CC (per O’Regan J, concurring).
10 S. Afr. Const. § 7(2).
11 Minister van Polisie v Ewels (1975) 3 SA 590 A.
12 Carmichele v Minister of Safety and Security (2002) 1 SACR 79 CC, 81–83.
13 Id. at para 43–56.
14 Minister of Safety and Security v Van Duivenboden (2002) 6 SA 431 SCA, 21–23.
15 Id.
16 S v Baloyi (2000) 1 SACR 81 CC, para 11.
17 Criminal Procedure Act 51 of 1977.
18 S. Afr. Const. § 12(1)(c).
19 Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law (Harvard University Press 1987) 71–72.
20 Katharine T. Bartlett, ‘MacKinnon’s Feminism: Power on Whose Terms?’ (1987) Duke Law Scholarship Repository 1560.
21 Johan Galtung, ‘Violence, Peace, and Peace Research’ (1969) 6 Journal of Peace Research 167, 167–191 (Oxford University Press).
22 S. Afr. Const. § 12.
23 Domestic Violence Act 116 of 1998.
24 Criminal Law (Sexual Offences and Related Matters) Amendment Act 13 of 2021.
25 Karl E. Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 South African Journal on Human Rights 146, 150.
26 Frank I. Michelman, ‘On the Uses of Interpretive “Charity”: Some Notes on Application, Avoidance, Equality and Objective Unconstitutionality from the 2007 Term of the Constitutional Court of South Africa’ (2008) 1 Constitutional Court Review 1, 12–15.
27 Kimberle Crenshaw, ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Colour’ (1991) 43 Stanford Law Review 1241, 1245–1253.
28 Klare (n 25) 150.
