A CRITICAL ANALYSIS AND DISCUSSION OF THE STATE'S DUTY AND LIABILITY

TO PROTECT WOMEN AND OTHER VULNERABLE MEMBERS OF THE SOCIETY

AGAINST GENDER-BASED VIOLENCE IN SOUTH AFRICA

By

KL MAKAULA

5301262

Submitted in partial fulfilment of the requirements for the degree

LLM

In the

SCHOOL OF LAW

UNIVERSITY OF SOUTH AFRICA

MHR5904 ASSIGNMENT 01

25 October 2023

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TABLE OF CONTENTS
TOPIC PAGE
1 CHAPTER 1
1.1 INTRODUCTION 3
1.2 PROBLEM STATEMENT 4
1.3 LITERATURE REVIEW BACKGROUND TO THE STUDY 5
2 CHAPTER 2 6
HISTORICAL REVIEW 6
3 CHAPTER 3 8
THE CURRENT LEGISLATIVE FRAMEWORK FOR THE
PROTECTION OF WOMEN AND OTHER VULNERABLE MEMBERS 8
OF SOCIETY AGAINST GBV
4 CHAPTER 4 10
ANALYSIS OF THE STATE'S FAILURE TO ENSURE SUITABLE
PROTECTION OF WOMEN AND OTHER VULNERABLE MEMBERS 10
OF SOCIETY AGAINST GBV
5 CONCLUSION 12
6 BIBLIOGRAPHY 13
ACADEMIC HONESTY DECLARATION 15

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 1. CHAPTER 1
1.1 INTRODUCTION.
Violence is the use of physical force so as to injure, abuse, damage, or destroy1 another
individual or thing. It is the intentional use of physical Force or power threatened or actual
against oneself another person or against a group or community that I love the results in
Ore has been high likelihood of resulting in injury death psychological harm and even
poor development.2 The force is likely to be used by an individual or by a group to another
person or even another group and may result in physical or emotional and psychological
harm.

The Violence can emancipate or be executed in various ways. It may be a stranger that
executes violent acts to another person who is usually of another gender or even the
same gender, but is likely to be a weaker person in strength. It may also be an intimate
partner that may involve physical and sexual abuse another person who is also of weaker
strength.

Gender-based violence is the physical force directed at another person of opposite sex,
resulting in a negative feeling. Gender-based violence in this presentation in not only
confined to the opposite gender, but also include other vulnerable members of the society.
It is also used interchangeably with Violence against women. The vulnerable members
include the children as well as the not so strong members of society that may also include
the elderly.

Furthermore, the United Nations Declaration on the Elimination of Violence Against

Women affirms that violence against women should be understood, to encompass
physical sexual psychological violence which can occur in the family, as well as in the
general community, appearing in the form of rape, sexual abuse, harassment, and
intimidation.3 The violence can also occur in other places like at work and educational
institutions.

1 Merriam.Webster.com Dictionary, Merriam- Webster, https://www.merriam-webster.com/dictionarylviolence.

Accessed 27 May.2023
2 Krug E, Dahlberg L, Mercy J, et al World report on violence and health. Geneva: world Health Organisation

2022
3 UN General Assembly Declaration on The Elimination of Violence Against Women 20 December 1983

A/RES/48/104 Available at https://www.refworld.org/docid/3b00f25d2c.html (accessed (2023-05-27).

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 1.2 PROBLEM STATEMENT.

Is it the state's duty and liability to protect women and other vulnerable members of the
society against gender-based violence in South Africa? In this research I will be
answering positively, to the question and I will be providing literature and evidence as
well as a point of view in support of the answer to the main research question.

The Constitution in supreme law of the country and form the foundation of upon which all
other laws are based. All other laws that are inconsistent with the Constitution will be
invalid to the extent of the inconsistency. It provides for the Bill of Rights in Chapter 2,
where the rights such as equality, human dignity, life, freedom, privacy and others.4

The state is liable to ensure that these rights are promoted and protected, and it's
everyone enjoys them without any infringement of any manner. It would seem the state
is lacking.in ensuring that women and other vulnerable members of the society are
protected.

South African Constitution guarantees everyone the right to be protected from all forms
of violence, either from public or private sources.5

The state has established a number of departments that seeks to ensure that women are
protected from any violence however through the police it seems like not enough is done
in the protection off women and the weak ones is it continuously appears through the
violence that the women are experiencing. The problem is ongoing with various
challenges being the cause that may result in it not being solved. It has been a reported
that the Eastern Cape has more than twice the national rate, with acting national
commissioner of police Lieutenant General Tebello Mosikili presenting that sexual
offences had increased from 46 214 during the 2020/21 financial year to 52 694 during
the 2021/22 financial year.6

4 The Constitution of SA S 9-16

5 The Constitution of SA S 12
6 https://www.sowetanlive.co.za/news/south-africa/2022-11-01-eastern-cape-accounts-for-most-gbv-cases-

with-twice-national-rate/ (accessed 2023-10-22)

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 1.3 LITERATURE REVIEW/BACKGROUND TO THE STUDY

(a) Legislation

The Constitution of the Republic of South Africa, 1996.

The Constitution of the Republic of South Africa is the supreme law of the country. It forms
the Foundation of all the laws that are going to be proclaimed in South Africa. This
constitution provides for equality and dignity principles. It is against any discrimination
that may be effected that is why everyone, including women, children, people with
disabilities and all people that are vulnerable, enjoy the equal status in terms of the
constitution. It is the Constitution that forces the state to ensure protection of everyone
against any violation of the rights of individuals by anyone. The state must not fail to do
its duty. I will show the successes and the failures of the state in protecting it's people
against GBV.

Criminal Law Amendment Act 105 Of 1997

This act provides that stricter sentences in GBV.

the Domestic Violence Act

If the violence occurs between persons who are in a relationship, a protection order can
be applied for under the Domestic Violence Act. Other legislation includes the Protection
from Harassment Act and the Prevention of Combatting of Human Trafficking in Human
Persons Act.

Protection from Harassment Act

This Act goes a long distance to protect all against harassment.

Prevention of Combatting of Human Trafficking in Human Persons Act

This act combat against all the illegal human trafficking that is taking place which is in
violation of the human rights

Case Law

S v Makwanyane and Another 1995 (6) BCLR 665 at 261

In this case the right to dignity was emphasized and it was one case which formed the
foundation off application of various principles. It is a case that pioneered the respect of
the dignity of any individual.

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 CHAPTER 2

2.1 HISTORICAL REVIEW

The problem of Gender-Based Violence has been a longstanding problem in the world,
which prompted the United Nations (UN) to begin and continue its efforts to fight against
gender-based violence.7 The creation of the Commission on the Status of Women which
produced, between 1949 and 1962, a series of documents on the rights that should be
equally applied to men and women, without any kind of distinction was some of the efforts
of the UN.8 Various policies, actions, legal mandates were developed with the aim of
instilling protective and preventing measures for women and their empowerment.

The Council of Europe, Istanbul Convention, mentions the following types of violence,
psychological violence, stalking, physical violence, forced marriages, sexual violence,
including rape, female genital mutilation.9

South Africa have seen a development of legal Acts after the 1994 New Government and
these included acts such as the Domestic Violence Act, The Protection of Harassment
Act as well as The Prevention of Combating Of Human Trafficking In Human Persons
Act. The Criminal Procedure Act was amended with the inclusion of more serious
sentences regarding gender-based violence crimes. The development of these acts was
then followed by advocacy campaigns that were aimed at ensuring that Society becomes
aware of these eggs that are being perpetrated against women and the vulnerable
members of the society. It can be noted in activities such as the 16 days of activism
against violence.

The office of The President has come up with a Summit referred to as the Presidential
Summit on GBV and Femicide, and it has been held twice with the recent one being held
recently. The major aim of the summit is to develop a National Strategic Plan, that is to
strengthen the state's response and align all the activities so as to ensure that the society
is able to fight against the scourge of gender-based violence.

7 World Vision History, what you need to know about Gender Based Violence
https://www.wvi.org/stories/facts-faqs-history-what-you-need-know-about-gender-based- accessed 28 May
2023
8 ibid
9Council of Europe Types of gender-based violence https://www.coe.int/en/web/gender-matters/council-of-

europe accessed 28 May 2023

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 Although the South African Government is currently doing the best that it can to ensure
that Gender-Based Violence is tackled by all possible means, however we still see serious
violations and women being killed like the Gardee, Mrwetyana, Khumalo and many
others.

Gender based violence issues are not only devastating for survivors of violence and their
families, they also have significant social and economic costs. If a member of a family
ends up being killed the family experience at the trauma of having one of its members
passing away in a violent manner and secondly if the member was providing financial
support to other members in the family this will result in other people not receiving
assistance in their economical status then suffice negatively. Violence against women
and women’s economic empowerment, though not linear, are closely interlinked.10 During
Civil War in Africa in many African states, the most likely gender that would experience
pain and rape are usually women and children, who would leave their homes caring
children on their backs running away from confrontations that were having negative
effects on their lives and their health.

South African women have always been living under threatening situation, they feel that
they are not even safe in their homes. This has been happening for quite a long time.
Oosthuizen-Senekal CSP AJ held that GBV is both a human rights and a public health
issue, which not only affects the individual, but has an impact on families and communities
both in the short and long term11. In Carmichele v Minister of Safety and Security and
Another the following was stated:

“Sexual violence and the threat of sexual violence goes to the core of women’s subordination
in society. It is the single greatest threat to the self-determination of South African women.”12

Even though the Courts impose harsh sentences, like in S v Robertson, where the
accused was sentenced to a number of years that included a life sentence running
concurrently13 as per sentencing by the court, the number of incidents of GBV is always
on the rise.

10 https://www.wvi.org/stories/facts-faqs-history-what-you-need-know-about-gender-based-violence
11 N v State 2022 A128 GLD para [37]
12 Carmichele v Minister of Safety and Security and Another 2001 (4) SA 79 (CC) para [62]
13 S v Robertson (CC 4112020) [2022] ZAWCHC 104; 2023 (2) SACR 156 (WCC) (18 May 2022)

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 CHAPTER 3

3.1 THE CURRENT LEGISLATIVE FRAMEWORK FOR THE PROTECTION OF

WOMEN AND OTHER VULNERABLE MEMBERS OF SOCIETY AGAINST GBV.

The lack of decisive action by the South African police has led to the society not believing
that the state is doing enough to protect women and other vulnerable members of the
society. The question that may rise is; To what extent is the state liable if there is damage
that may arise as a result of negligent act by the state?

In the Carmichele Case the applicant was sexually assaulted by a man who was awaiting
trial for the attempted rape of another woman. Despite the seriousness of the alleged
crime and the fact that the man had a prior rape conviction, the police and prosecutor had
recommended that the man be released on bail pending trial. And according to
Carmichele they negligently failed to comply with a legal duty they owed to her to take
steps to prevent Coetzee from causing her harm.14

The applicant sued the Minister for damages. The High Court dismissed the applicant's
claim and the Supreme Court of Appeal affirmed, holding that the police and prosecution
did not owe her a duty of protection. She went further on appeal, the Constitutional Court
set aside the orders of the lower courts and remanded the case to the High Court for trial.
It was held that the State is obligated by the Constitution and international law to protect
the dignity and security of women and in the circumstances, the police recommendation
for the assailant's release could amount to wrongful conduct giving rise to liability. I fully
agree with the Court also it held that prosecutors, who are under a duty to place before
the court any information relevant to the refusal or grant of bail, may be held liable for
negligently failing to fulfil that duty.15

In Kawa Case the Court handed down judgment in Ms Kawa’s favour.16 Justice Tlaletsi
found that the police had been negligent in conducting their search and investigation and
that these failures contributed to the harm experienced by Ms Kawa. Not only was the
police’s inaction negligent, it was also found to be wrongful: the police breached their
constitutional duties to victims of gender-based violence in ways that were significant and
actionable.17

14 Carmichele v Minister of Safety and Security and Another 2001 (4) SA 938 (CC) [2]
15 ibid
16 https://www.wits.ac.za/news/sources/cals-news/2022/constitutional-court-.html accessed 28 May 2023
17 ibid

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 They Kawa case reflects how negligent the police force and the government can
sometimes be where upon they do not act decisively to protect the right of equality, human
dignity and freedom of security in terms of the Constitution.18

The Domestic Violence Act aims to afford the victims of domestic violence the maximum
protection from domestic abuse that the law can provide.19 There is a lot of violence that
is taking place inside the call me in South Africa. A majority of incidents remain unreported
because it is perpetrated by a man who are usually the ones that bring income in the
home. However for those who would like to report legislature has passed this Act to
protect those women.

TLALETSI AJ in AK v Minister of Police Held that the Rape Incident demonstrates how
women in this country are unable to enjoy their freedoms, enshrined in the Bill of Rights,
free from gender-based violence,20 and further that the state has a duty to protect women
against all forms of gender-based violence that impair their enjoyment of fundamental
rights and freedoms. It has to take reasonable and appropriate measures to prevent the
violation of those rights.21 In this case the woman felt that the police did not do enough in
their investigation that is why she sued the minister of police because the police did not
conduct the investigation properly.

Sometimes, the laws are there but the people (police) who are supposed to implement
these laws and enforce them as police officers are not doing enough, that's not protecting
the women as dictated by the Constitution of South Africa.

Another law is the Criminal Law (Sexual Offences and Related Matters) Amendment Act,
No. 32 of 2007 that helps intensify South Africa's efforts to fight sexual crimes against all
persons and, especially, sexual offences being committed against vulnerable groups,
including women, children and people who are mentally disabled.22 The police are armed
with all the necessary laws on their sides and I supposed to be doing well in the protection
of its citizens in general as well as the opposite gender in particular.

18 The Constitution s9 - s12

19 Domestic Violence Act s1
20 AK v Minister of Police (CCT 94/20) [2022] ZACC 14; 2022 (11) BCLR 1307 (CC); 2023 (1) SACR 113

(CC); 2023 (2) SA 321 (CC) (5 April 2022) para 1

21 Ibid para 3
22 Criminal Law (Sexual Offences and Related Matters) Amendment Act, No. 32 of 2007

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 CHAPTER 4

4.1 ANALYSIS OF THE STATE’S FAILURE TO ENSURE SUITABLE PROTECTION

OF WOMEN AND OTHER VULNERABLE MEMBERS OF SOCIETY AGAINST
GBV.

The South African government as a state has not done sufficient to cater for the protection
of women and other vulnerable members of society against GBV. The South African
human rights commission has produced a document where in it has a researched on the
failures and the successes in addressing gender-based violence.

In 2008, the SAHRC released a report on school-based violence in South Africa, which
noted that schools are some of the most common sites where sexual assaults occur. and
the state has not done enough to address these challenges. There is sexual assaults,
bullying, emotional abuse reported by children under the age of 18 occurred while they
were at school. Research undertaken by the Centre for Justice and Crime Prevention
(CJCP) in 2012 further found that while both male and female learners were exposed to
forms of violence such as robbery and assault, sexual violence was highest amongst
female learners.23

There is a huge number of GBV incidents at SA schools. There are a few special schools
and in those schools space is limited which result in stiff competition for places. LO as a
subject has not addressed the root causes of GBV. Poor addressing of this has led to a
number of protests.

The Department of basic education in their action plan promised to increase budget for
schools especially in subject of GBV, however the roll-out of Grant still remains the same
and does not cater for all those children and women. The policies are there but the
commitment to deliver is still lacking and insufficient.

In Rail commuters Action Group v Transnet, it was held that the government and those
exercising public power must be held accountable to the broader community for the
exercise of their powers.24 Those that are in authority are compelled by law to ensure that
the society is protected especially the women and other vulnerable members of society
failure to do so they are held accountable and maybe subjected to litigation as well as
lawsuits.

23 SAHRC Unpacking the gaps and challenges in addressing gender-based violence in South Africa. (last
accessed 2023-10-22)
24 Rail commuters Action Group v Transnet Ltd t/a Metrorail 2005 2 SA 359(CC) para 76.

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Interestingly, the higher authorities in the country are aware of the extent fgtv and the role
that is being played by the state in the protection of these vulnerable members of the society.
President Cyril Ramaphosa in his parliamentary address compared to the incident of
gender-based violence in South Africa to that of a “country at War”.25 In 2019, about 2,700
women and 1,000 children were reported to have been maimed and murdered, and about
100 raped daily.26

In S v Makwanyane Chaskalson CJ, wrote the following:

In section 10, "every person shall have the right to respect for and protection of his or her dignity", and
section 8, "every person shall have the right to equality before the law and to equal protection of the

The constitutional Court was accurate in holding that the emphasis does not lie only on the
crime committed, but it must be noted that the Constitution of South Africa especially section
10 and 8 have a very important role to play in ensuring that everyone receives Justice
correctly, in a democratic South Africa. The state also has that role to play in respecting the
dignity of women and vulnerable people. In some instances, they need to ensure that the
State end up putting the lives of the Citizens of South Africa in danger whilst exercising the
rights of the accused people like in the case AK V Minister Of Police, proper care must be
taken to ensure that those released on bail are not a danger to the society, and do not end
up committing further GBV crimes.

It is also important to Note that the state has a responsibility of educating its citizens and
ensuring that where's the president applied the rules27 in terms of the disaster management
act and many people were kept under lockdown there was an increase in incidence of
violence against women and vulnerable people as many people were kept at home because
of covid-19. During self-isolation in the country, a perfect platform was unintentionally
created, where in the violence against women children and vulnerable people, escalated
and increased.28

25 Udo “COVID-19 Lockdown: South Africa Battles the Deadly Epidemic of Gender-Based Violence”
https://www.africanwomeninlaw.com/post/covid-19-lockdown-south-africa-battles-the-deadly-epidemic-of-
gender-based-violence (last accessed 2023-10-22)
26 Ibid.
27 Disaster Management Act 57 of 2002: Amendment of Regulations issued in terms of s 27(2).
28 Onyango “Sexual and Gender-Based Violence during Covid-19: Lessons from Ebola” The Conversation

(last accessed 2023-10-22)

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5 CONCLUSION

It is very important to Note that the state is in a dilemma where in people that are accused
or even convicted are kept away from women and children who cannot protect themselves
while at the same time ensuring that the rights of those that are accused are not infringed
upon. That is why the state must apply carefully the limitation clause which will ensure that
while respecting the rights but they are also Limited in order to protect those who cannot
protect themselves in our Society.

Regarding the application of limitations, we can draw the following conclusions from what
Kentridge AJ decided:

(1) Zuma confirms that the two-stage approach, as set out in the Canadian case of R v Oakes, 80 will
be followed. This approach is applied by posing two questions, namely:

(i) Has a fundamental right entrenched in the Constitution been infringed?

(ii) If the answer is 'yes', does this infringement comply with all the requirements of the limitation clause,
and is therefore 'saved' by it?29

The State fell foul of its obligations by failing to take active measures to prevent domestic
violence. The above-named cases have proved that the state did not do justice to the women
and those that are vulnerable. At the beginning of the pandemic, it became clear that existing
barriers faced by victims would be exacerbated, aggravated, and worsened by the
pandemic. Due to the forced isolation and restricted movement of persons during the
nationwide lockdown, it became more difficult for victims to seek assistance. Some incidents
went by without being reported. In some cases there were victims that wanted to report but
only to find and face challenges like transport that was not there because of lock-down.

In Soobramoney v Minister of Health, KwaZulu-Natal an important judgement by the

Constitutional Court of South Africa, was delivered in 1997, in which the court had to
adjudicate on the universal constitutional right to medical treatment as against the problem
of an under-resourced health care system30 in the different provinces. The same failure to
provide suitable protection of women against GBV, can be noted even in other departments
like the Health in the Soobramoney Case, which is filled with a number of litigation cases
against the Department.

29 S v Zuma 1995 (2) SA 477 (CC).

30 Soobramoney v Minister of Health (KwaZulu-Natal) 1998 (1) SA765 (CC).
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BIBLIOGRAPHY

Journal Articles

1. Merriam.Webster.com Dictionary, Merriam- Webster, https://www.merriam-

webster.com/dictionarylviolence. Accessed 27 May.2023
2. UN General Assembly Declaration on The Elimination of Violence Against Women
20 December 1983 A/RES/48/104 Available at
https://www.refworld.org/docid/3b00f25d2c.html (accessed (2023-05-27).

3. SAHRC Unpacking the gaps and challenges in addressing gender-based violence in

South Africa

4. https://www.wits.ac.za/news/sources/cals-news/2022/constitutional-court-.html
accessed 28 May 2023
5. World Vision History, what you need to know about Gender Based Violence
https://www.wvi.org/stories/facts-faqs-history-what-you-need-know-about-gender-based-
accessed 28 May 2023
6. Council of Europe Types of gender-based violence
https://www.coe.int/en/web/gender-matters/council-of-europe accessed 28 May 2023
7. Udo “COVID-19 Lockdown: South Africa Battles the Deadly Epidemic of Gender-
Based Violence” https://www.africanwomeninlaw.com/post/covid-19-lockdown-south-africa-
battles-the-deadly-epidemic-of-gender-based-violence (last accessed 2023-10-22)

Statute

The Constitution of the Republic of South Africa, 1996.

South African Schools Act 84 of 1996

Domestic Violence Act

Criminal Law (Sexual Offences and Related Matters) Amendment Act, No. 32 of 2007

Policies

Department of Education. Education White Paper 6: Special Needs Education- Building an

inclusive education and training system (2001).
Case Law/Law Reports

Carmichele v Minister of Safety and Security and Another 2001 (4) SA 938 (CC

AK v Minister of Police (CCT 94/20) [2022] ZACC 14; 2022 (11) BCLR 1307 (CC); 2023
(1) SACR 113 (CC); 2023 (2) SA 321 (CC) (5 April 2022) para 1
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N v State 2022 A128 GLD para [37]

Carmichele v Minister of Safety and Security and Another 2001 (4) SA 79 (CC) para [62]

S v Robertson (CC 4112020) [2022] ZAWCHC 104; 2023 (2) SACR 156 (WCC) (18 May
2022)

Rail commuters Action Group v Transnet Ltd t/a Metrorail 2005 2 SA 359(CC).

S v Zuma 1995 (2) SA 477 (CC).

Soobramoney v Minister of Health (KwaZulu-Natal) 1998 (1) SA765 (CC).

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ACADEMIC HONESTY DECLARATION

Declaration

1. I understand what academic dishonesty entails and am aware of Unisa’s policies

in this regard.

2. I declare that this assignment is my own, original work. Where I have used someone
else’s work, I have indicated this by using the prescribed style of referencing. Every
contribution to, and quotation in, this assignment from the work or works of other
people has been referenced according to this style.

3. I have not allowed, and will not allow anyone to copy my work with the intention of
passing it off as his or her own work.

4. I did not make use of another student’s work and submitted it as my own.

NAME : KL MAKAULA

SIGNATURE :

STUD NUMBER : 530 126 2

MODULE CODE : MHR5904

DATE : 25 October 2023

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