THE EPISTEMOLOGY OF JUSTICE IN SOUTH AFRICA:WAR AGAINST WOMEN AND CHILDREN

Abstract

This article explores key issues related to justice in South Africa, with a focus on the protection of women and children. It examines several constitutional sections, including Section 28(1)(d), Section 9(1), Section 28(2), and Section 7(1), and evaluates how these are applied in practice. The article also discusses the roles of advocacy groups like Women for Change and Women in Law and addresses the lingering impact of colonialism on racial inequality, particularly the value placed on Black versus White lives.

While the Constitution promises strong protections for women and children, this article argues that these rights are not effectively enforced. It recommends practical reforms in the justice system—particularly in the courts, prosecuting authorities, and police services—to better address gender-based violence, sexual assault, and racial injustice. Using a normative approach and textual analysis, the article ultimately highlights the gap between constitutional promises and the lived reality in South Africa

Introduction

The concept of Justice has been an issue to my thoughts when I think about our justice system, the epistemological concept of it becomes unclear on what the Constitution seeks to achieve in certain aspects of it. South Africa prides itself as a human rights country, at least in theory, and a sovereign state founded on the values of human dignity, advancement of freedom and achievement of equality[1]. I emphasise in theory for a specific reason that it highlights its value in the text of the Constitution and fail to put some of the into practice. The Constitution as a document serves to protect and promote human rights amongst the society, it voices for the voiceless and defends the defenceless. Hence, according to its supremacy, any law or conduct that is inconsistent with it is declared invalid and its obligations that it imposes must be fulfilled[2]. The Constitution declared women and children vulnerable, and it imposed an obligation for them to be protected. However, the patriarchal notion has made women voiceless, as men are believed to be dominant in the society, thus their voices are louder than those of women[3]. And masculinity has made them defenceless. The Constitution became a hope for women, but never a commitment. I emphasise masculinity because women are not sexually assaulting each other currently in South Africa, children are not dominantly sexually assaulted by women too, men are, in majority of cases, the one subjecting women and children to these atrocities. Section 23(1)(d) of the Constitution is there only in theory, but not in practice, to protect children as they are deemed vulnerable, and this is evident in the recent case of Cwecwe. Cwecwe is a young 7-year-innocent girl, who was sexually assaulted, allegedly, at Bergview College, a private school in the Eastern Cape[4]. Moreover, Gender-based Violence (GBV) increases at the highest rate in South Africa, and it is also the leading country worldwide with GBV crimes[5].

This paper also deals with the issue of race in the context of the matters mentioned above. The fundamental question that this paper seeks to address is whether South Africa is losing the war against the Gender-based Violence (GBV) and protecting children? The following subtopics will be analysed and addressed: the epistemology of justice, The Vulnerability of Women and Children: Section 28(1)(d) and Section 9(1) Of the Constitution, The Best Interest of Cwecwe: Section 28(2) of the Constitution, The fracture of the South African Constitution’s Cornerstone: Section 7(1) of the Constitution, The Unbreakable Branch: WOMEN FOR CHANGE + WOMEN IN LAW, Repercussions of the Colonial Colour Acuity in South Africa: “A Black life vs The White Life”, and recommend how challenges in these subtopics may be eradicated.

 All these narrow down to how justice can be achieved in addressing these issues, and without firstly addressing them, then we have a long way to discover the true meaning of the epistemology of justice with the current Constitution in effect.

Background

South Africa pride itself as a country of human rights, this is at the centre of the Constitution[6]. Our Bill of Rights is the cornerstone of our democracy, as it enshrines people’s rights and affirms human dignity, equality and freedom[7]. There has been an outcry throughout the years in South Africa regarding the war against women and children. South Africa is the leading country, worldwide, with cases of GBV. The GBV is a pervasive issue fundamentally rooted in gender inequality and remains one of the most significant human rights violations across all societies. It refers to violence directed at an individual based on their gender. While both men and women may be affected, many victims are women and girls[8]. Since in the past, South Africa has been subjected to racial inequality during Apartheid. Apartheid was an ideology that was formulated to segregate white people from black, and with the belief that whites are masters and blacks are servants[9]. GBV and racial attacks are still troubling South Africa, and they attack its Constitution.

The Epistemology of Justice

It is inevitable that there are broad definitions of justice. Justice as a fundamental element is that everyone must enjoy the equality before the law, it means that every person should have effective means to protect his rights or entitlements under substantive law[10]. This includes the group declared vulnerable by the Constitution. The concept “epistemology”, for the purpose of this paper, is not to be interpreted from the jurisprudential view but from an Oxford dictionary’s[11] definition view, which means the knowledge of South Africa’s justice in this context. The concept of justice is context-sensitive, and in this paper, it will be addressed as such.

The Vulnerability of Women and Children: Section 28(1)(d) and Section 9(1) Of the Constitution

The right in section 28(1)(d) provides for a protection of a child from maltreatment, neglect, abuse or degradation. According to Bekink, this right reflects the belief of the society that children are vulnerable[12]. In section 9 of the Constitution, women are catered for with other genders. This introduces the notion that women are not vulnerable, these are the people who marched to the Union Building, in Pretoria, in 1956, 9 August. They were petitioning against having to carry passes under Apartheid laws[13]. Not only that, but they also marched nationally, in different provinces demanding “Justice for Cwecwe”. This is evident that they are playing their role, the justice system needs to do the same, no one plays a chess game alone. The concept “vulnerability” subjects women to these atrocities. A vulnerable person would not do such, they merely need justice to work for them, as it must.

Women are the foundation of the society, and their role is vital, you kill a woman and the whole society ceases to exist, not only reproductively but foundationally[14].

The Best Interest of Cwecwe: Section 28(2) of the Constitution

Section 28(2) of the Constitution is a right on its own, and it should not be limited to the rights stipulated in section 28(1) of the Constitution only, but it goes beyond and must be interpreted beyond those provisions[15]. Section 28(2) read with section 28(1)(d) emphasises the best interests of Cwecwe, the State is vested a duty to uphold this paramountcy. The DNA sample that was required from a white principal must have been forcefully taken without the need of this principal’s consent, as it was in the best interest of Cwecwe to get justice. In other instance, there was no need for him to be declared a suspect for investigating officers to take his DNA as provided in terms of section 36E(1) subject to subsection (2) and section 36A(5) of the Criminal Law (Forensic Procedures) Amendment Act 37 of 2013[16], because he was reasonably believed to have been a suspect. Thus, the AfriForum’s assertion that the white principal was not a suspect is absurd[17]. However, it is evident why it got involved in the first place and it has nothing to do with the DNA sample but a race matter. Their objective is to protect Afrikaner identity, and everyone know what race an Afrikaner is, and this is found on their website thar they aim for “protection and growth of the Afrikaner identity”[18]

 The concept “equality”, in section 7(1), extends to race equality, there is no race, in South Africa, that should be superior to the other or be given a priority over the other as every person is equal before the law[19]. AfriForum should not always jump whenever a white person is involved in a legal dispute. The principal’s DNA serves the same effect as the one of the other suspects in the case Cwecwe, there are no speciality on white suspects, a suspect is a suspect. Section 36E(1) of the Criminal Law (Forensic Procedures) Amendment Act does not racialize suspects. This illustrates how South Africa has failed its nation to enforce, in to practice, rights afforded to its population.

The fracture of the South African Constitution’s Cornerstone: Section 7(1) of the Constitution

In terms of section 7(1) of the Constitution, the Bill of Rights is the cornerstone of South African democracy as it enshrines people’s rights, and it affirms human dignity, equality and freedom[20]. This cornerstone, the Bill of Rights, is cracked apart by the internal heat of war against women (GBV), and thus, rendered it fractured. Women and children are being sexually assaulted and killed in South Africa[21]. Then, the question becomes, if the Bill of Rights enshrines people’s rights, which people is it talking of, because one of the rights afforded to women[22] and children[23] is protection in the society.

Gender-based Violence is a problem that is jaw-dropping in South Africa, unequal power dynamics between both genders in a culture and normative role expectations lead to gender-based violence (GBV).[24] Gender based violence is often used interchangeably with violence against women and girls. There are forms of violence against a certain gender,7 namely Violence against women and girls (VAWG) which is directly directed to women and children; Violence against LGBTI people which is directed to lesbian, gay, bisexual, transgender and/or intersex people; Intimate partner violence (IPV) which includes physical, sexual, and emotional abuse and controlling behaviours by a current or former intimate partner or spouse, and can occur in heterosexual or same-sex couples; Domestic violence (DV) which is carried out by partners or family members but sometimes against children or other family members; Sexual violence (SV) which is mostly directed to relationship partners who are subjected to unwanted sex and comments or advances and Indirect (structural) violence exists when certain groups, classes, genders or nationalities have privileged access to goods, resources and opportunities over others.7 However, in all of these types of violence, patriarchy plays a role in perpetuating such violence. The social and political system that treats men as superior to women, where women cannot protect their bodies and men feel entitled to dictate over women. Some of the factors driving the Gender based violence are low levels of women’s empowerment, lack of social support, socio-economic inequality, and substance abuse.7 There are international treaties that seeks to combat these violences, but it is just not enough. Treaties such as Domestic Violence Act (DVA) (1998), which issues protection orders regarding domestic violence and any other related matters to it and the Prevention and Combatting of Trafficking in Human Persons (2013) Act which forbids and impose severe punishments to human trafficking.7 This part focuses primarily on Gender Based violence as it is used interchangeably with Violence against women and girls and Violence against LGBTI community. Everyone has a right to gender identification in terms of the Constitution. However, the country is continuously experiencing violence against a specific gender. The fundamental question is what are we missing? In theory these rights are protected but in practice they are not.

“Is South Africa losing the war against the Gender-based Violence (GBV)?” South Africa is not losing the war against the Gender-Based Violence, it had already lost it when we lost:

1. Anene Booysen, a 17-year-old from Bredasdorp, Western Cape, was brutally gang-raped and mutilated. She was found alive but later died in the hospital[25].
2. Rachel Dolly Flavia Tshabalala, allegedly killed by her boyfriend claiming she was giving bad sex[26].
3. Karabo Mokoena, Karabo was murdered and burned by her boyfriend, Sandile Mantsoe[27].
4. Nosicelo Mtembeni, A 23-year-old law student at the University of Fort Hare, Nosicelo was murdered and dismembered by her boyfriend[28].
5. Takalani Mbulungeni (21), A third-year nursing student at the University of Venda, who was stabbed to death[29].
6. Tshegofatso Pule, 28 years and 8 months pregnant, was murdered by a hitman hired by her boyfriend, Ntuthuko Shoba[30].
7. Uyinene Mrwetyana, A 19-year-old UCT student, she was raped and murdered by a post office worker, Luyanda Botha, after she went to collect a parcel[31].
8. Zolile Khumalo, A 21-year-old student at Mangosuthu University of Technology, she was shot and killed in her residence by her ex-boyfriend, Thabani Mzolo.

Every one of these females was a victim of gender-based violence (GBV) in South Africa. This was the time it was no longer Gender-based Violence (GBV), but Gender-based Massacre (GBM). The enshrinement of the rights in the Constitution by the Bill of Rights seems to be more active in theory but not in practice. This illustrates how South Africa has failed its nation to enforce, in to practice, rights afforded to its population.

The Unbreakable Branch: WOMEN FOR CHANGE + WOMEN IN LAW

As painful as this may sound, but South African women and children are all they have, they are on their own. Thus, they should establish a body in the executive to work for them, the judiciary and legislature will validate it and check if it aligns with the constitutional values and frameworks. In South Africa, there are two prominent pillars that advocate for women, the WOMEN FOR CHANGE and WOMEN IN LAW. Firstly, founded in 2016, Women for Change[32] (WFC) has emerged as one of South Africa’s most prominent non-profit organisations committed to addressing Gender-based Violence and Femicide (GBVF). Guided by a mission to raise awareness, advocate for victims, and spark meaningful change, WFC effectively utilizes social media to shed light on the GBVF crisis and call for justice. Secondly, founded Noemi Muyo, For WOMEN IN LAW[33] is a platform committed to empowering women in law by providing mentorship, career support, and access to legal education.

WOMEN FOR CHANGE was a ground-shaking move, an elephant footprint, and For WOMEN IN LAW will be a mahout to guide these footprints. Within it (For WOMEN IN LAW) there must be bodies that advocate for women and at the same time regulating its legal compliance. Institutions and organisations as For WOMEN IN LAW should not operate independently from WOMEN FOR CHANGE. These should be dependent institutions that depends entirely on one another, they should be both sides of the same coin. With this unified collaboration, South Africa would not even have the audacity to put the GBM calls on hold. themselves and for children, expecting the government of South Africa to act in this crisis will only delay justice, and will increase the GBM statistics.

Repercussions of the Colonial Colour Acuity in South Africa: “A Black life vs The White Life”

It is of profound sadness to see the outcry of black South Africans being outraged by the Afriforum organisation. This organisation has always been and will always represents the interests of the white life, guilty or not guilty and suspect or not a suspect. The white life will always be the numerator, and a black life will always be the denominator in South Africa. The utility of “A” and “The” articles in this paragraph illustrate the value these two races receive in South Africa, is purely that and not to undermine the African rooted melanin. Take for example a recent grievous case that took place at the University of the Free State, where a black lecturer, Dr Pedro Mzileni, was subjected to a racial attack because of the lecture he was giving during his guest lecture[34]. What if Dr Pedro Mzileni was a white lecturer, would the procedure of his investigation and suspension be different?

It may perplex many what does this exemplified case has to do with the context of this study. It is to give clarity how these two skin colours, black and white, are treated in this country. If still perplexed, take for example the recent case of a young 7-year-innocent soul, who was sexually assaulted, allegedly, at Bergview College, a private school in the Eastern Cape. Her name is Cwecwe, she was allegedly assaulted at the same school. The suspects were the care taker at school/security and the taxi driver (Umalume), these are black men, and the principal, a white man. These black men gave their DNA without any delay or denial, until it was a time for a white man, the principal, to do the same, and Afriforum said no. Even in sensitive cases as these, the white life is prioritised. The principal is allegedly victimised by the request of his DNA sample, at least according to Afriforum, in this case. Cwecwe was a secondary victim and is treated as such since a white man became a suspect.

Race is a ticket to expedite the wheel of justice to others and to delay it to others. Whiteness is prioritised over blackness. In certain beliefs, if one is fully dressed in white is an angel, one fully dressed in black is a devil. In certain cases, when one is white by race is a primary priority and the one in black by race is a secondary priority. What if Cwecwe was a white girl, and the principal was a black person, how would thing be different now? What if majority of women and children who are brutally murdered, sexually assaulted and kidnaped were white, how would have government reacted?  The country is experiencing these because there is a certain minority group that is deemed to be better than the majority. This illustrates how South Africa has failed its nation to enforce, in to practice, rights afforded to its population.

The Impact of these injustices

To date, South Africa is having an increment of statistics of these crimes. Because there is no reform, development and improvement in these issues, perpetrators are in their comfort zone. To exemplify, last Sunday, a three-year-old boy Mojalefa Savhuli, went missing and he was found dead in a stream in Roodepoort on Thursday around 8am[35]. These injustices influence the public to not believe in the legal justice system. This creates the two arms of justice, on the first arm, it is the legal justice arm that must always act first to restore peace and protection of human rights. On the other arm, is vigilantism where communities take matter in their own hands and force justice. The latter is not constitutionally measured but the former it is. Vigilantism becomes convenient for the community because of the hope they lost in the justice system, especially considering the high number of gender-based violence crimes.

Conclusion

In summing up, South Africa must force a certain minority group to relinquish from whiteness and be treated the same way black people are treated. Resolving that issue first, it will be the beginning of justice. Women and children must be afforded full protection, and this will commence by considering the reforms stated under the “Recommendation” title. If South Africa does not scrutinise its epistemology of justice, then the only time it will stop leading highly with GBV worldwide, is when all women are dead. This country must change its reforms in dealing with these cases, otherwise none will want to bear any children. Who would want to bear a girl child, in South Africa, who will be sexually assaulted or murdered? Who will want to bear a boy child, in South Africa, who might potentially become a perpetrator too or be sexually assaulted? Who will want to live in a country where there are degrees of victims because of race? South Africa is a country that prides itself as the human right country only when one reads about it, if you believe it, take a trip to visit it. School kids are taught about animals most of their pre-school era, and once in a while they do take a trip to zoo to see whether what they had been taught about is real, so, why would not you want to visit and see what headlines talk about. Africa is our motherland[36], South Africa cannot be our fatherland.

Recommendation

Regarding Gender-based Violence (GBV), I propose that there should be an independent body that works hand in hand with the National Prosecuting Authority (NPA), and it should be established as the National Prosecuting Authority for Gender Based Violence (NPAFGBV). The NPAFGBV will solely deal with any matter that involves violence against other gender, it involves all form of violence mentioned above. The WOMEN FOR CHANGE and WOMEN IN LAW should, as a point of departure for urgency, call for this implementation:

STRUCTURE IN SOUTH AFRICAN POLICE SERVICE (SAPS) STATIONS:

•  In each police station in South Africa, there should be a branch that deals with these types of violence, they should not be mixed with general crimes that South African Police Services (SAPS) deals with on daily basis.
•  All victims or complainants of these crimes shall be heard in a private and secured environment, where they will be comfortable to talk.
• A specific task force of police shall be appointed, solely to investigate and gather information relating to allegations of these crimes upon the opening of every case.

STRUCTURE IN NATIONAL PROSECUTING AUTHORITY (NPA):

• There should be an office for NPAFGBV in, at least, every province to deal with these matters
• Each prosecutor shall be given not more than three of these cases per year, for efficiency and competence purposes

STRUCTURE IN COURTS:

• There should be a court every week, at least two times, that hears these matters separately from other general matters.
• The NPAFGBV, not the NPA, should be the one presenting these matters to the court.

Finally, moot courts for law students  in different universities, specifically the South African Women Lawyers Association (SAWLA), should give students these cases to moot on them, hypothetical facts do not resolve any case, in fact they are costly and time consuming. By commencing with this recommendation, South Africa will begin to have justice and fight back against this war against women and children.

Reference(S)

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Sibusiso Biyela, ‘Academic says coloniality stifles critical discourse in universities’ (2024) <https://www.researchprofessionalnews.com/rr-news-africa-south-2024-12-academic-says-coloniality-stifles-critical-discourse-in-universities/ > accessed on 11 April 2025

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[1] Constitution of the Republic of South Africa, section 1(a), 1996.

[2] Constitution of the Republic of South Africa, section 2, 1996.

[3] Sultana Abeda, ‘Patriarchy and Women’s Subordination: A Theoretical Analysis, The Arts Faculty Journal, July’ 2010-June 2011, 3

[4] Khanyisile Ngcobo 2025, ‘Police seek to reassure South Africans over sexual abuse of seven-year-old girl’ https://www.bbc.com/news/articles/c4g2zkpdj4eo accessed on 11 April 2025

[5] George, Lacey. “Gender-Based Violence against Women in South Africa.” Ballard Brief. July 2020. www.ballardbrief.org. accessed 11 April 2025

[6]  Constitution of the Republic of South Africa, 1996, sec 1(a)

[7] Constitution of the Republic of South Africa, 1996, sec 7(1)

[8]  European institute for Gender Equality ‘what is gender-based violence’ https://eige.europa.eu/gender-based-violence/what-is-gender-based-violence?language_content_entity=en accessed on 11 April 2025

[9] SAHO ‘A history of Apartheid in South Africa’ https://www.sahistory.org.za/article/history-apartheid-south-africa accessed on 11 April 2025

[10] Nyenti M “Access to justice in the South African social security: Towards a conceptual approach” [2013] DEJURE 44 https://www.saflii.org/za/journals/DEJURE/2013/44.html, accessed on 27 Aug 2024.

[11]https://www.google.com/search?sca_esv=9b97cf5dfe314dde&rlz=1C1ONGR_enZA1149ZA1149&sxsrf=AHTn8zrsASih5Gp5KDorp_IIqas5t71lSg:1744389975720&q=epistemology&si=APYL9bsiCsNXe-ci7zfr23UVPMz1uyv9ZoYVJiLpy6U35oLY3-86o825LVGN4eaQquNzzwG-njA7gyEfq10eG_Yj9KY5VD3ptT80avEPJZIGfNKxtq-A58I%3D&expnd=1&sa=X&ved=2ahUKEwj25eiGt9CMAxVtTkEAHVUMNakQ2v4IegQIJBAY&biw=1492&bih=680&dpr=1.29 accessed on 11 April 2025

[12] Bekink M, ‘The Constitutional Protection Afforded to Child Victims and Child Witnesses while Testifying in Criminal Proceedings in South Africa’, PER vol.22 n.1 Potchefstroom 2019, 26

[13] African Travel canvas 2021 ‘Why We Celebrate National Women’s Day in South Africa on August 9^th’ https://africantravelcanvas.com/experiences/history-and-politics/the-history-of-national-womens-day-and-how-you-can-celebrate-this-year/ accessed on 11 April 2025

[14]  Simangazo Mokale,‘30 Years of Freedom – Valuing the role of women in society and the workplace’ https://www.gcis.gov.za/30-years-freedom-valuing-role-women-society-and-workplace accessed on 11 April 2025

[15] Bekink M ‘The Constitutional Protection Afforded to Child Victims and Child Witnesses while Testifying in Criminal Proceedings in South Africa’, PER vol.22 n.1 Potchefstroom 2019,32; Minister of Welfare and Population Development v Fitzpatrick 2000 3 SA 422 (CC),17

[16] Criminal Law (Forensic Procedures) Amendment Act 37 of 2013, section 36E(1)

[17] Gerrie Nel 2025, ‘Cwecwe: Principal being falsely accused – Gerrie Nel’ https://www.politicsweb.co.za/documents/cwecwe-principal-being-falsely-accused–gerrie-nel accessed on 11 April 2025

[18] Afriforum ‘cultural identity’ https://afriforum.co.za/en/about-us/ accessed on 11 April 2025

[19] Constitution of the Republic of South Africa, section 7(1), 1996.

[20] Constitution of the Republic of South Africa, section 7(1), 1996

[21]  Shanaaz Mathews ‘Rape murder of women and children in Sout h Africa’ https://ci.uct.ac.za/sites/default/files/content_migration/health_uct_ac_za/533/files/Rape%2520murder%2520of%2520women%2520and%2520children%2520in%2520South%2520Africa%25202%2520June%25202020.pdf accessed on 11 April 2025

[22] Constitution of the Republic of South Africa, 1996, section 9(1),

[23] Constitution of the Republic of South Africa, 1996, section 28(1)(d),

[24] Dartnall E & Channon A “Sexual Violence Research Initiative and the Joint Gender Fund” https://www.saferspaces.org.za/understand/entry/gender-based-violence-in-south-africa [Accessed on 27 Aug 2024.

[25] SABC NEWS 2013, ‘A brutal attack on a 17-year-old girl’ https://www.sabcnews.com/sabcnews/a-brutal-attack-on-a-17-year-old-girl/ accessed 11 April 2025

[26] Heiberg Tanish 2016, ‘DJ gets 20 years for murder of Wits secretary’ https://witsvuvuzela.com/tag/donald-sebolai/ accessed on 11 April 2025

[27] BBC 2018, ‘South Africa’s Sandile Mantsoe guilty of Karabo Mokoena murder’< https://www.bbc.com/news/world-africa-43979207> accessed on 11 April 2025

[28] Malibongwe Dayimani 2021, ‘Nosicelo Mtebeni murder: New twist as court hears love messages on cellphone were sent by accused’ < https://www.news24.com/news24/nosicelo-mtebeni-murder-new-twist-as-court-hears-love-messages-on-cellphone-were-sent-by-accused-20211202> accessed on 11 April 2025

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[31]   Bukola Adebayo 2019, ‘A post office worker was given three life sentences for raping and murdering a student. Now South African women are saying enough’ < https://edition.cnn.com/2019/11/15/africa/south-africa-student-murder-sentence/index.html> accessed on 11 April 2025

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