THE EFFICACY OF LEGAL FRAMEWORK AS A MECHANISM TO REGULATE  GENDER-BASED VIOLENCE IN SOUTH AFRICA

ABSTRACT

South Africa’s legal framework to address gender-based violence (GBV) primarily includes the  Constitution of the Republic of South Africa, 1996 and Domestic Violence Act (DVA) of 1998,  which offers mechanisms for protection orders, criminal prosecution, and enhanced access to  justice for victims. However, the high prevalence of GBV in the country indicates shortcomings  in the efficacy and implementation of this framework. This article examines the strengths and  weaknesses of the legal framework in addressing GBV. It highlights how the framework  theoretically empowers victims and deters perpetrators and explores challenges in the  implementation and enforcement of the law regulating it. Therefore, this article analyses how  challenges impact the effectiveness of South Africa’s legal framework in combating Gender  Based Violence. It explores solutions like public education, victim support, and law  enforcement training. The aim is to inform policy changes and create a safer environment.

THESIS STATEMENT

This article critically examines the efficacy of South Africa’s existing legal framework in  regulating gender-based violence (GBV), highlighting the gap between its progressive  theoretical foundation and the persistent challenges in implementation, with the aim of  informing policy adjustments to enhance protection for victims.

INTRODUCTION

The Constitution provides that the state must respect, protect, promote and fulfil the rights in  the Bill of Rights. Furthermore, it enshrines the rights of all people in our country and affirms  the democratic values of human dignity, equality and freedom. Section 7 of the Constitution  of the Republic of South Africa of 1996 (the Constitution) serves as a cornerstone, guaranteeing  fundamental rights such as dignity, equality, and freedom. Moreover, section 12(1)(c) provides  every person’s right to freedom and security of a person. Section 12(1)(c) is crucial in  protecting individuals from state abuse, as well as private violence, this section says, “Everyone  has the right to be free from all forms of violence from either public or private sources”.  Further, it has been instrumental in cases of human rights violations, police brutality, and  domestic violence it serves as a powerful tool for challenging and addressing these issues. Thus,  the constitutional pledge forms the foundation for protecting the rights and welfare of every  citizen in the country.

Furthermore, South Africa is a signatory to international instruments regulating gender-based  violence, such as Article 18(3) of the African Charter on Human and Peoples’ Rights which it  ratified in 1996. The said article obligates the state to “ensure the elimination of every  discrimination against women and also ensure the protection of the rights of the woman and  the child as stipulated in international declarations and conventions”. This clearly illustrates  that it is not only the Constitution or domestic law that regulates gender-based violence. 

In response to this distressing reality, in terms of the Government Gazette No. 48419. 1998, the  South African government took yet another step forward by adopting the third set of what is  known as the Gender Based Violence Amendments Acts on 14 April 2023, the Domestic  Violence Act. Nonetheless, GBV remains a persistent and devastating issue in South Africa as  a result of the inefficacy of normative legal frameworks and ineffective enforcement. This has  been proven in the incident that occurred in Gqeberha mentioned in paragraphs 1 and 2 of AK  v Minister of Police 2022. 

Despite boasting about a progressive legal framework designed to address GBV, the reality  paints a contrasting picture. The high rates of violence against women and girls in the country  expose a critical gap between the law on paper and its effectiveness in achieving tangible  change, and it is safe to say that the underreporting of cases is one of the major causes of that  gap. This article delves into this paradox, examining the efficacy of the current legal  framework as a mechanism to regulate GBV in South Africa.

The urgency of this investigation stems from the human cost of Gender Based Violence. South  Africa consistently ranks among countries with the highest rates of GBV globally, with a  significant number of incidents going unreported. These statistics translate into countless lives  shattered by physical abuse. Public awareness campaigns and legislative efforts have not  translated into a decrease in GBV incidents, highlighting a critical need to understand the  reasons behind this disconnect, however, there are explanations for violence against women. 

This article seeks to identify the weaknesses within the current legal framework and explore  potential explanations for its shortcomings. In doing so, it will critically examine the existing  body of research, including the works of scholars like Lizelle Ramaccio Calvino, Mafuku  Tholaine Matadi, and Sabil Mokodenseho, aims to shed light on potential areas for  improvement. These areas could encompass inefficiencies in law enforcement and prosecution,  lack of victim support and access to justice, or the continued influence of social norms that  condone violence against women.

Understanding these limitations is crucial for developing more effective strategies to combat  Gender Based Violence. The findings of this paper can inform policymakers, legal  practitioners, and civil society organizations in crafting a more comprehensive approach to  tackling this pervasive issue. Ultimately, the goal is to utilize legal mechanisms alongside social  and cultural interventions to create a South Africa where women and girls are truly safe and  empowered.

The Prevalence and Nature of GBV in South Africa

South Africa has a deeply entrenched problem with gender-based violence (GBV) which  adversely affects women and girls, this even takes away their enjoyment of fundamental rights  as mentioned in the case of Tshabalala v S. Enaifoghe argues that GBV takes various forms,  including physical, sexual, emotional, and economic abuse.

A critical aspect of understanding the efficacy of the legal framework in addressing GBV lies  in comprehending the nature and extent of the problem. Bott argues that GBV is often intertwined with broader societal issues such as poverty, inequality, and patriarchal norms. He  further argues that these factors contribute to the creation of an environment conducive to GBV  and impact the experiences of survivors. In his/her paper, Bott further delves into the longterm consequences of GBV on individuals, families, and communities. These consequences  include physical injuries, mental health problems, economic hardship, and social isolation. His  /her submission then being that in understanding the pervasive nature and devastating impact of GBV, it becomes evident that addressing this crisis requires a multi-faceted approach that  includes effective legal measures. 

A central focus of the legal framework is responding to incidents of GBV and providing  support to survivors. In doing so it is highly expected that most research has examined the  effectiveness of various legal mechanisms, including criminal justice reform, punishing  perpetrators rather than prosecuting them, and victim support services. It is discovered that  criminal prosecution is less prevented of GBV and is a weaker response by the legal framework  to Gender-Based Violence. 

The legal system has been doing whatever it takes to prevent gender-based violence through  legislation as stated in the case of S v Ndebele. Lubaale and Scholtz highlight the challenges in  implementation, including delays in issuing protection orders, difficulties in enforcing these  orders, and the limited availability of support services for victims. 

With regards to the nature of Gender based violence in South Africa and whether it is regulated,  there are certain scholars who have arguments on its regulation. Nikolaos Stamatakis argues  that gender-based violence in South Africa is regulated, submitting that in 1995 South Africa  made a significant commitment to eliminating violence against women by ratifying the  Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The  author further argued that this pivotal moment underscored the nation’s dedication to  safeguarding women’s rights and promoting gender equality. Stamatakis discovered that as a  result, the country enacted various domestic laws aimed at protecting the rights of women and  children, with the Domestic Violence Act being a notable achievement.

Nikolas stipulated that in two decades later, the South African government took a monumental  step forward by introducing the Domestic Violence Amendment Act on April 14, 2023, which  constitutes the third series of amendments to the legislation addressing gender-based violence.  The enactment of this Act represents a crucial effort to fortify the legal framework and  mechanisms aimed at addressing and combating GBV within the country. Although the DVAA  seeks to strengthen the existing legal framework by introducing comprehensive enhancements  and adjustments, a thorough analysis of the specific content and intricacies of these  amendments is necessary to fully understand the legislative modifications implemented. 

Tameshnie Deane is another scholar who spoke about existence of legal frameworks that  regulate Gender-based violence in South Africa, Tameshnie Dean argued by stating that Deane  argued that in accordance with the principles enshrined in the South African Constitution, the government has established a relatively progressive legislative framework and has  implemented policies, programs, and plans of action aimed at eradicating sexual violence,  including the enactment of various sexual offenses legislation and the establishment of  specialized sexual offenses courts . By the arguments of the two mention authors, it can be said  that there are implementations by the state to prevent the violence on people based on their  Gender, therefore GBV is statutory regulated according to the Deane and Stamatakis.

In addressing the issue of gaps and inconsistencies in the legal framework that hinder its  effectiveness, there are arguments by a particular scholar. Deane showed criticism on the  operation of the legislative regulation of Gender Based-Violence by arguing that, despite the  increased focus on women’s rights in South Africa, there has been limited progress in reducing  the incidence of sexual violence against women, highlighting the need for continued efforts to  address this pervasive issue. 

With regards to the same issue, Tshoane et al argues that the law does not protect some  marginalized groups or genders by stating that the assumptions of Domestic Violence initiatives  marginalize men, as campaigns focus on women and portray men as abusive partners.  According to Tshoane et al, men who are victims of Domestic Violence are underserved, as  women are prioritized. In addition, for men experiencing Domestic Violence, society, shelters,  police enforcement, the government, and the legal system do little. Astonishingly, society is  not yet prepared to provide men with the same services as women, leaving them without  adequate support. 

Ayanda Zulu is also one of researchers who have identified the gaps or inconsistencies that  hinder effectiveness of the legal framework. Zulu argued that recent trends reveal that while  the Prevention of Domestic Violence Act has led to increased legal interventions, such as  protection orders, the rates of repeated abuse, however violation of these orders remain  alarming. According to Zulu this is an indication that although the Prevention Domestic  Violence Act has raised awareness and provided a legal framework, its effectiveness is hindered  by inconsistent enforcement, limited resources, and societal attitudes that condone or normalize  domestic violence. 

Considering the arguments of Deane, Tshoane et al, and Zulu, legal framework has gaps and  inconsistencies that hinder its effectiveness which makes the Gender Based- Violence to remain  as a common problem to human beings, for instance inaccessibility of courts.

The mere fact that GBV in South Africa is still a problem when regulating it through domestic  law, application of international law can assist in reducing the problem of GBV. In South Africa,  application is allowed in terms of s233 of the Constitution, which regulates the application of  Internation law, the section states that “When interpreting any legislation, every court must  prefer any reasonable interpretation of the legislation that is consistent with international law  over any alternative interpretation that is inconsistent with international law”  According to Tameshnie Deane it is a solution to apply international law where it is necessary  for purposes of preventing violence against women and other genders as well. Deane argued  that one of the most significant resolutions on Violence Against Women is “The 1993  Declaration on the Elimination of Violence Against Women” (DEVAW). The reason behind  Deane’s argument is because DEVAW established a comprehensive set of standards in  international law for protecting women against sexual and gender-based violence. Deane  further argued that DEVAW acknowledges Violence Against Women as a major obstacle to  achieving equality, a manifestation of unequal power relations between men and women, and  a violation of fundamental freedoms, including the prohibition against torture.

Furthermore, according to Deane, DEVAW not only calls on State actors to refrain from  engaging in Violence Against Women but also emphasizes that States should take proactive  measures to prevent and punish violence committed by both public and private actors and  establish support networks to care for victims of GBV. 

Chitsamatanga and Rember had provided solutions to the problem of gender-based violence by  arguing that it should be ensured in schools that learners are well informed about the cruelty  and sever consequences of violence against women and men. In doing so, these authors stated  that …… “Although the there are numerous reports through media of victims in schools including murder, few  prosecutions and convictions have been made. To curb this evil, it is important to would be perpetrators and more  prosecutions and stiffer sentences should be imposed. What is happening in schools, mirrors what is happening in  families, communities and the wider society. There is need therefore to cascade these measures beyond the school  confines”. 

Conclusion and Recommendations

The literature reviewed highlights the complex nature of gender-based violence (GBV) in  South Africa. While the legal framework represents a significant step forward in addressing  this issue, its effectiveness is hindered by a range of challenges. Research has demonstrated the need for a comprehensive approach that incorporates prevention, protection, and prosecution  strategies.

Key findings from the literature include the high prevalence of GBV, the impact of societal  factors on its perpetuation, and the challenges faced by survivors in accessing justice. While  the legal framework provides a foundation for addressing GBV, implementation gaps, resource  constraints, and systemic biases continue to impede progress.

The legal framework does regulate gender-based violence in South Africa, however, it lacks  some other aspects that would reduce the violence. Amendment of legislation by reviewing and  updating existing legislation to address identified gaps and challenges, such as increasing  penalties for perpetrators, expanding the definition of GBV, and strengthening protection  orders. 

Enhance enforcement by providing adequate resources and training to law enforcement  agencies to improve their capacity to investigate and prosecute GBV cases. Improve access to  justice by expanding legal aid services, establishing specialized GBV courts, and implementing  victim-centred approaches to the justice system.

Furthermore, comprehensive prevention programs by developing and implementing evidence based prevention programs targeting schools, communities, and workplaces to challenge  harmful gender norms and promote gender equality. Initiation of public awareness campaigns  by increasing public awareness of GBV through mass media campaigns and community  outreach programs. Expand support services by increasing the availability and accessibility of  comprehensive support services for survivors, including shelters, counselling, medical care,  and legal assistance.

LIMITATIONS

The regulation of Gender-Based violence through the legal framework in South Africa will be  the subject of this research. This article on gender-based violence (GBV) in South Africa is  limited by factors such as underreporting, inconsistent data, geographical disparities, and  limited longitudinal studies. Additionally, diverse definitions of GBV, methodological  challenges, and the impact of ethical considerations on the quality of the research. The focus  on specific populations and limited exploration of intersectionality further restricts the  understanding of the complex nature of GBV.

REFERENCE(S):

Books

Stamatakis N, Global Trends in Law Enforcement-Theory and Practice (2024)  Cases

S v Ndebele [2023] ZAGPJHC 936 

Tshabalala v S [2019] ZACC 48 

Chapters in Edited Books

Bott S, ‘Initiatives to Prevent and Respond to Gender-Based Violence’ in Morrison A and  Ellsberg M (eds), Preventing and responding to gender-based violence in middle- and low income countries: a global review and analysis (2005) 

Journal Articles

Chitsamatanga C and Rember T, ‘School Related Gender Based Violence as a Violation of  Children’s Rights to Education in South Africa: Manifestations, Consequences and Possible  Solutions’ (2020) JHE 76 

Deane T, ‘gender-based violence in international human rights law – the efficacy of the United  Nations human rights legal framework and CEDAW in addressing the issue’ (2024) ISSN 18 

Deane T, ‘Sexual Violence and the Limits of Laws Powers to Alter Behaviour: The Case of  South Africa’ (2018) JIWS 85 

Enaifoghe A, ‘The Prevalence of Gender-Based Violence against Women in South Africa: A  Call for Action’ (2021) AJGSD 124

Lubaale G and Scholtz W, ‘Violence against Women and Criminal Justice in Africa’ (2020)  SDG 77 

Ntlama N, ‘Gender-based violence ignites the re-emergence of public opinion on the exercise  of judicial authority’ (2020) DJLJ 291

Sibanda-Moyo N et al, ‘Violence against women in South Africa, A country in crisis’ (2017)  CSVR

Tshoane M et al, ‘Exploration of the Gaps in the Enactment and Implementation of the  Domestic Violence Act of South Africa’ (2023) ISSN 65

Zulu A, ‘Evaluating the Effectiveness of South Africa’s Prevention of Domestic Violence Act  in Reducing Gender-Based Violence in Cape Town’ (2024) ISSN 68 

Legislation

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 Criminal Procedure Act 51 of 1977

Domestic Violence Act 116 of 1998 19

Domestic Violence Amendment Act 21 of 2023 

Constitution of the Republic of South Africa, 1996

International Instruments

Declaration on the Elimination of Violence Against Women, 1993 

African Charter on Human and Peoples’ Rights ,1986

Internet Sources

Kioi D, ‘Access to Justice for Survivors of S/GBV’ https://africanfeminism.com/access-to justice-for-survivors-of-s-gbv/ accessed 20 July 2025

Mpako K and Ndoma S, ‘South Africans see gender-based violence as most important  women’s-rights issue to address’ https://www.afrobarometer.org/publication/ad738-south africans-see-gender-based-violence-as-most-important-womens-rights-issue-to-address/ accessed 20 July 2025 

Mulwa B, ‘Ending Gender-Based Violence in Rural Areas’ https://yali.state.gov/yali-voices how-to-raise-awareness-about-gbv-in-rural-areas/ accessed 20 July 2025

SaferSpaces, ‘Gender-Based violence in South Africa – Understand’  https://www.saferspaces.org.za/understand/entry/gender-based-violence-in-south-africa accessed 20 July 2025