A Legal Duty To Safeguard Individuals Against GBV

South Africa is unfortunately faced with many cases involving femicide and gender-based violence. Gender-based violence (GBV) refers to harmful acts directed at an individual (or a group of individuals) based on their gender. It is generally accepted that the overriding cause of GBV is gender equality. This term is primarily used to underscore the fact that structural, gender-based power differentials, place women (including girls) at risk of multiple forms of violence.

According to Reports, it has been estimated that a woman is killed in South Africa every four hours, and at least half of those murdered, by an intimate partner or a person known to them. Furthermore, instances of rape in South Africa rank among the highest in the world, the unfortunate reality being that only an estimated one in 25 cases being reported to the South African Police Services (SAPS).

SAPS has a legal duty under section 205(3) of the Constitution ‘to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law’. Under section 7(2) of the Constitution, the state must respect, protect, promote, and fulfill the rights highlighted in the Bill of Rights. Pertinent in this regard is the enshrined rights to human dignity, freedom and security of the person. Section 13(3)(a) of the SAPS Act provides that ‘a member who is obliged to perform an official duty, shall, with due regard to his or her powers, duties and functions, perform such duty in a manner that is reasonable in the circumstances’.

In Carmichele v The Minister of Safety and Security (CCT 48/00) [2001] ZACC; 2001 (4) SA 938 (CC), the applicant sued the two Ministers concerned for damages resulting from a brutal attack on her by a man who was awaiting trial for charges relating to rape. Despite his background of sexual violence, the police and prosecutor had recommended his release on bail. The Constitutional Court underlined that the State is obliged by the Constitution and international law to prevent gender-based discrimination and to protect the dignity, freedom, and security of women.

In AK v Minister of Police [2022] ZACC 14, the primary issue for determination was whether the failure of the SAPS to conduct a reasonable and effective search (including the necessary follow-up actions) to find the applicant when she had been abducted, assaulted and raped, and thereafter, to hold her perpetrators accountable, was wrongful in terms of the law of delict and in light of the constitutional obligation on the State to eradicate gender-based violence. The applicant submitted that SAPS is under a legal duty to take reasonable, practical, and appropriate measures to protect women against gender-based violence and to give effect to the constitutional values and rights conferred by the Constitution on women.

These rights include the values of dignity, equality, freedom and the rights to physical and psychological integrity. It was noted here that crimes against women and children are of alarming proportions in South Africa and that SAPS has a duty to attend to its investigations thoroughly and to make use of all skills and resources at its disposal.

There is thus a duty to protect women against all forms of gender-based violence which impairs their enjoyment of fundamental rights and freedoms and it is required that reasonable and appropriate measures be taken to prevent the violation of those rights.

Article by Jean-Pierre van Zyl (LLB), Candidate Attorney.