Written by Brandon Mxolisi Sifuba,
Intern- Lex Lumen Research Journal,
December 2025
Introduction
South Africa experienced a nationwide shutdown on 21 November 2025, led by Women for Change, highlighting a glaring spotlight on a scourge that has haunted the rainbow nation for decades: Gender-Based Violence (GBV) and femicide. Despite constitutional promises and legislative reforms, women across the country and internationally continue to face systemic threats to safety and dignity. The shutdown was more than a protest; it demanded urgent legal reform, stronger enforcement, and societal change. Behind the headlines lie real stories of courage and survival, reminding us that progressive laws mean little when structural barriers and cultural attitudes continue to deny victims justice.
Insufficient Legal Protection Against Gender-Based Violence
South Africa’s Constitution protects equality in terms of Section 9 and Section 10 human dignity. However, gender-based violence such as rape, domestic abuse, and economic exploitation remains underreported and inadequately addressed by the legal system. For instance, the Domestic Violence Act 116 of 1998 provides civil remedies and protection orders but does not adequately address economic abuse or systemic prevention measures. Similarly, the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007[1] criminalizes marital rape, yet enforcement is inconsistent due to limited resources, undertrained law enforcement officers, and societal resistance to reporting intimate-partner violence. These gaps underscore the need for both legislative innovation and practical implementation strategies that extend beyond criminal sanctions.
Recognizing Femicide as a Separate Crime
Gender-based violence (GBV) refers to harmful acts directed at an individual because of their gender. It includes physical, emotional, sexual, verbal, psychological, economic, or cultural abuse. While women and girls are most affected, GBV can impact anyone, including men and LGBTQI individuals. Femicide refers to the deliberate killing of women due to their gender, including private or intimate femicide by current or former partners, same-sex partners, or rejected suitors.[2]
The current South African law treats femicide under general homicide provisions in the Criminal Procedure Act 51 of 1977[3], which fails to address the social and cultural patterns that underpin violence against women. Recognizing femicide as a separate crime can help courts focus on cases, enforce stricter punishments, and show society rejects gender-based killings. South Africa can set a precedent by creating laws that hold perpetrators accountable and prevent gender-based violence.
The Struggle Between Law and Tradition
Legislation alone is insufficient if enforcement mechanisms remain weak. Reports from the South African Human Rights Commission indicate that many women do not report GBV due to fear of retaliation, social stigma, or distrust in authorities. Fear of further harm from the perpetrator also discourages victims from coming forward. Additionally, societal stigma and shame play a significant role, often captured by the “Abantu bazothini” syndrome, “what will people say?”. This mindset leads individuals to place the opinions of others above their own safety and well-being, preventing them from reporting incidents and perpetuating cycles of victimization (Mdletshe & Makhaye, 2025).[4]
In some rural areas, cultural traditions give elders or local councils authority to resolve conflicts, often focusing on family harmony rather than ensuring the safety and rights of abuse victims. While such mediation has a place in customary law under the Traditional Leadership and Governance Framework Act 41 of 2003[5]. The legal reforms must carefully combine statutory law, customary practices, and human rights protections so that women’s constitutional rights are not undermined, ensuring victims of gender-based violence are safeguarded without allowing cultural traditions to justify abuse.
Transforming Family Law for Gender Equity
Family law is a critical site for addressing structural gender inequality. The Maintenance Act 99 of 1998[6] provides for financial support of children and spouses, but it does not fully address controlling or misusing money domestically. Similarly, the Children’s Act 38 of 2005[7], this South African law, prioritizes children’s best interests, but it does not fully prevent them from seeing or suffering gender-based violence. Updating South Africa’s family law is important to better protect people, especially women, from abuse and controlling behavior within families.
The Role of Constitutional Advocacy
South African constitutional law offers unique opportunities for strategic litigation. Section 9[8] of the Constitution guarantees that everyone is equal before the law, and Section 12[9] affirms the right to freedom and security of the person. In the case of Padayachee v Gauteng Department of Education,[10] the court held that the conduct of unfair treatment by senior managers and the Gauteng Department of Education resulted in harassment and unfair discrimination, and humiliation. This shows that the lawyers and the civil society have successfully challenged discriminatory policies concerning school hair policies, which set a precedent for arguing against systemic forms of gender based discrimination concerning the grounds of race, ethnicity, culture, and language. In MEC for Education: Kwazulu-Natal v Pillay[11] the Chief Justice concluded that the school’s discrimination against Sunali Pillay was unfair. He granted an order declaring that the refusal by the school to grant her an exemption from the Code unfairly discriminated against her. The two cases are identical in the nature of the merits, and the two cases of gendered discrimination and humiliation suffered for the choice of their culture and religion at the hands of the strict or demanding school’s Code.
Thus, precedents show that constitutional advocacy can go beyond formal legislation to challenge harmful social norms that perpetuate violence. Strategic litigation can compel state institutions to enforce laws effectively, adopt gender-aware training, and ensure courts protect victims. By treating GBV as a violation of constitutional and social rights, not only a criminal issue. South Africa can also reinforce its commitment to gender equality.
Movements That Matter
The movements remain essential for mobilizing awareness and accountability. Organizations like Women for Change have emerged as a leading GBV movement, using protests, campaigns, and workshops to amplify survivors’ voices, challenge cultural stigmas, and push for reforms. The Tears Foundation offers 24/7 mobile reporting, partners with schools and clinics for sexual violence education, and provides alternative complaint pathways where police access is limited. Shelters such as Nissa Institute for Women’s Development provide Lifeline, and faith-based safe houses offer refuge, rehabilitation, and counselling, often donor-funded, while survivor-led networks advocate for systemic change.
These movements often collaborate with international human rights bodies. The United Nations Women implements programs and policies to protect women’s rights. The United Nations Human Rights Council advances global human rights, addresses violations, and provides recommendations. The World Health Organization provides GBV guidelines, promoting safe reporting, trauma care, and awareness. Engaging communities through workshops, school initiatives, and media campaigns can challenge gender biases, inform men and women of their legal rights, and advocate for statutory reform, gradually creating a culture of zero tolerance for GBV.
Conclusion
South Africa is at a pivotal point in the fight against gender-based violence. Even though the Constitution and laws protect women’s problems, such as weak enforcement, cultural obstacles, and not recognizing femicide as a separate crime, they still put women at risk. Real change requires updating criminal law and family law, stronger enforcement, and raising awareness through education, advocacy, and activism. The nationwide shutdown demonstrated that public pressure remains a vital force in pushing the state toward accountability. Furthermore, only through sustained cooperation among legal professionals, civil society, and communities can we ensure safety, equality, and justice for women and children.
Bibliography
Legislation
The Constitution of the Republic of South Africa, 1996.
The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
The Criminal Procedure Act 51 of 1977
The Domestic Act 116 of 1998
The Children’s Act 38 of 2005.
Maintenance Act 99 of 1998.
The Traditional Leadership and Governance Framework Act 41 of 2003.
Journal Articles
L.C. Mdletshe & M.S. Makhaye, Suffering in Silence: Reasons Why Victims of Gender-Based Violence in Higher Education Institutions Choose Not to Report Their Victimization, 14 Soc. Sci. 336 (2025). https://doi.org/10.3390/ socsci14060336
Jemina Mofokeng & Nhlanhla Simelane, Views on Gender-Based Violence and Femicide: Implications for Policy and Practice Interventions, 6 Innovation J. Soc. Sci. & Econ. Rev. 10 (2024).
Case Law
MEC for Education: Kwazulu-Natal v Pillay, 2008 (1) SA 474 (CC).
Padayachee v Gauteng Department of Education (JS485/23) [2024] ZALCJHB 501; [2025] 4 BLLR 428 (LC).
[1] The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.
[2] Mofokeng “Views On Gender-Based Violence And Femicide: Implications For Policy And Practice Interventions. Innovation Journal of Social Sciences and Economic Review” Google Scholar.
[3] The Criminal Procedure Act 51 of 1977.
[4] Mdletshe “Suffering in Silence: Reasons Why Victims of Gender-Based Violence in Higher Education Institutions Choose Not to Report Their Victimization. Social Sciences” Google Scholar.
[5] The Traditional Leadership and Governance Framework Act 41 of 2003.
[6] The Maintenance Act 99 of 1988.
[7] The Children’s Act 38 of 2005.
[8] The Constitution of the Republic of South Africa, 1996.
[9] The Constitution of the Republic of South Africa, 1996.
[10] Padayachee v Gauteng Department of Education [2025] 4 BLLR 428 (LC).
[11] MEC for Education: Kwazulu-Natal v Pillay 2008 1 SA 474 (CC), paras 4, 5 and 15.
