Shifting the legal landscape: SA’s fight against GBV gains ground

In South Africa, gender-based violence (GBV) affects practically every part of life and is a serious and pervasive issue.

GBV is systemic and deeply rooted in South African institutions, cultures, and customs, disproportionately impacting women and girls.

2024 proved to be an important year of landmark rulings and constitutional challenges to improve legal protections for GBV victims in the county.

Landmark rulings, constitutional challenges

The first South African national GBV study, released by Women and People with Disabilities Minister Sindisiwe Chikunga in November, revealed that one in three women aged 18 years and older have experienced sexual and physical abuse in their lifetime.

According to the Human Sciences Research Council (HSRC) study, 35.5% of women 18 and older have experienced physical and sexual violence. This amounts to 7 847 438 women.

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Dr Nompumelelo Zungu, HSRC deputy executive director, said the findings reveal the widespread and severe prevalence of GBV in South Africa.

“The figures that we have once again confirm that violence starts early and continues throughout their life cycle,” she noted.

A September landmark ruling by the Pretoria High Court declaring sections of the Sexual Offences Act unconstitutional will, however, offer new hope for victims of gender-based violence.

New hope for GBV victims

In 2022, survivor Inge Holztrager and the nonprofit organisation The Embrace Project filed a complaint in the High Court to contest the definition of consent in sexual assaults under South African law.

On 30 September, the Pretoria High Court declared parts of the Sexual Offences Act unconstitutional.

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In accordance with the ruling, which is pending confirmation by the Constitutional Court, accused individuals must take “objectively reasonable steps” to ensure the complainant’s consent to sexual activity.

As a result, survivors will have greater protection as the law will change from a subjective to an objective standard for permission.

Director of The Embrace Project, Lee-Anne Germanos Manuel, called the ruling a major step forward for victims of sexual violence.

Major step forward

“For the first time, the law will require people to take active steps to ensure consent. The days of assuming consent unless there was clear resistance, like kicking and screaming, are over. Most victims freeze in such situations. This is a big change.”

The ruling also removes the defence—which frequently results in acquittals—that an accused person may depend on an unreasonable belief in consent.

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This victory for victims also comes amid a constitutional challenge to ask that courts consider a history of domestic violence in determining cases.

The Centre for Applied Legal Studies (CALS) approached the High Court in Johannesburg on behalf of a mother of two who was convicted of murdering her abusive partner in 2022 during an incident of domestic violence.

The centre launched an appeal in the case of MN, as identified in court documents, who was sentenced to ten years’ imprisonment by the Palm Ridge Magistrates Court in November 2022 for murdering her abusive partner.

Sentenced to 10 years for abuser’s murder

According to MN, prior to her arrest, she spent a year facing beatings from her partner so severe that she suffered a miscarriage.

“On the night she was arrested, she was held against her will and raped. This evidence was not challenged by the state at trial and was accepted as fact by the court,” the centre said.

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In court papers, MN’s lawyers stated that Magistrate L. Singh did not adequately consider the facts presented at trial or offer sufficient justification for her guilty verdict.

“The lacuna in South African law contains no guidance for taking into consideration Battered Woman Syndrome and Slow Burn Reaction as grounds and factors in mitigation that concern the sentencing process,” the attorneys said.

Battered Woman Syndrome and Slow Burn Reaction are psychological phenomena that are recognised globally in the context of violence against women.

Battered Woman Syndrome and Slow Burn Reaction

Battered Woman Syndrome explains why women often stay in abusive relationships.

The Slow Burn Reaction is a phenomenon where women in a situation of abuse tend not to react instantly to the abuse.

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This is due in part to psychological factors but also to the physical imbalance between the abuser and the victim, which makes an immediate reaction appear pointless or even more harmful to the victim.

The lawyers said that Singh conceded in her judgment that MN was a victim of abuse and accepted that various incidents of abuse occurred in the past.

“The Learned Magistrate, however, did not accept that any violence had occurred on the night of the incident and concluded that the accused could have exhausted various other options to secure her safety or leave, despite the fact that the applicant had testified that she was worried for the safety of her children as well as hers, and further that she was locked in at the time and could not open the door,” they said in court papers.

Considering sexual abuse and domestic violence

The lawyers added another judge might consider the sexual abuse and domestic violence and determine that a sentence shorter than ten years in jail was appropriate.

“The sentencing of women who kill their abusive partners is left to the discretion of individual judges despite the systemic violence against women.

“The lacuna in the law is a failure by the legislature to discharge its duties to women who are victims of cycles of abuse at the hands of their intimate partners,” they said.

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The case was postponed to December because a court clerk was not available.

The head of the Gender Justice programme at CALS, Dr Sheena Swemmer, said an increasing level of domestic violence will almost certainly result in people dying, most often women.

“In some instances, victims of abuse may respond to violence. For them, it becomes a situation of ‘him or me’,” Swemmer said.

‘Him or me’

“What we’re arguing is that our courts need to take this phenomenon into account to engage properly with psychological aspects of domestic violence and trauma.”

Attorney of the Gender Justice programme at CALS Basetsana Koitsioe said the current trends in sentencing show there is a pattern of courts discounting expert evidence and witness testimony in cases where women are accused of killing their abusers.

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“Our courts make assumptions about what is ‘reasonable’ for a woman who has suffered prolonged abuse to do when they face yet another experience of domestic violence,” Koitsioe said.

“The harsh approach taken to sentencing fails to understand the psychology of abuse.”

Additional reporting by Thando Nondywana