The dark side of the rainbow: Violence against women in South Africa after ten years of democracy
| Jurisdiction | South Africa |
| Pages | 171-199 |
| Author | Heléne Combrinck |
| Date | 15 August 2019 |
| Published date | 15 August 2019 |
The dark side of the rainbow: Violence
against women in South Africa
after ten years of democracy
HELÉNE COMBRINCK*
University of the Western Cape
I INTRODUCTION
When considering violence against women
1
in South Africa in 2005, one
is confronted with an apparent contradiction. On the one hand, the levels
of violence against South African women are alarmingly high.
2
For
example, during 2003–2004 a total of 52 733 cases of rape were reported
to the South African Police Service.
3
This constitutes a fifteen percent
increase from the number of cases reported in 1994–1995.
4
Although it is
difficult to establish the national incidence of domestic violence,
5
various
localized studies indicate that it is an extensive problem.
6
Recent South
* B Iur LLB Hons BA (North-West University) LLM (Cape Town); Senior Researcher,
Community Law Centre, University of the Western Cape. This article is an extended and
updated version of a paper read at a conference held by the Women’s Legal Centre in
November 2003 in Cape Town to commemorate five years of the Centre’s existence. The
author expresses appreciation to the Ford Foundation for its financial support of additional
research towards completion of the article.
1
The term ‘violence against women’ is used here to denote acts of gender-based violence
that result in, or are likely to result in, physical, sexual or psychological harm or suffering to
women – see art 1 of the Declaration on the Elimination of Violence Against Women UN
GAOR 48th Session UN Doc A/Res/48/104 (1994) [hereinafter referred to as ‘the Violence
Declaration’]. This article concentrates on two aspects of violence against women, i.e.
domestic violence and sexual assault, and considers the position of adult women only.
2
Various explanations have been advanced for the persistently high incidence of violence
against women. The scope of this article does not permit a detailed discussion of this aspect. For
a general overview, see U Kistner Gender-based violence and HIV/AIDS in South Africa (2003)
17–19; M Govender ‘Domestic violence: Is South Africa meeting its obligations in terms of the
Women’sConvention?’ (2003) 16 SAJHR 663 at 676.
3
South African Police Service: Crime Information Analysis Service Rape in the RSA for
the Financial Years 1994/1995 to 2003/2004 http://www.saps.gov.za/statistics/reports/crimestats/
2004 accessed on 31 January 2005.
4
One should bear in mind that an increase in the number of reported rapes is not an
unambiguous indication of an increase in incidence. It could also be the result of a greater
awareness of the importance of reporting and enhanced confidence in the police and justice
system as compared to ten years ago.
5
One of the main reasons for this difficulty is the fact that the South African Police Service
does not record crimes of violence (eg assault, rape, attempted murder or malicious damage to
property) committed in a domestic relationship as a separate crime category.
6
S v Engelbrecht 2005(2) SACR 41 (WLD) para 152–153.
171
2005 Acta Juridica 171
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African research
7
has furthermore found inordinately high levels of
intimate femicide.
8
These statistics represent the darker, malevolent side
of the so-called ‘Rainbow Nation’, and lead one to question whether
women are in this respect any better off than ten years ago.
On the other hand, the constitutional and legislative environment
appears to be highly conducive to measures addressing violence against
women, with the Bill of Rights in the South African Constitution
containing an explicit guarantee of the right to be free from all forms of
violence from either public or private sources.
9
The Domestic Violence
Act of 1998
10
is generally considered to be one of the more progressive
enactments of its kind internationally. In addition, a draft Bill aimed at
reforming the law relating to sexual assault
11
has been introduced in
Parliament.
12
This article aims to provide an overview of the development of the
constitutional and legislative environment relating to violence against
women, with specific emphasis on the role played by the courts in this
development.
13
It also identifies areas that may require further interven-
tion in order to address the existing dichotomy between the relatively
progressive nature of the formal legal dispensation and the practical
realities experienced by women subjected to violence.
A three-tier scheme is used here to chart the course of progress since
1994.
14
The first level of this scheme consists of a normative framework,
provided by the Constitution (specifically, the Bill of Rights) as informed
by the principles and standards set out in international human rights
law.
15
The second level consists of legislation formulated in order to give
tangible effect to the rights set out in the Bill of Rights. The third level of
analysis is that of implementation, consisting of the components that are
required to ensure that the legislation ‘works’ in practice. On this level,
7
See S Matthews et al Every Six Hours a Woman is Killed by Her Intimate Partner:A National
study of Female Homicide in South Africa South African Medical Research Council Policy Brief
No 5 (June 2004).
8
The killing of a female person by an intimate partner.
9
Section 12(1)(c).
10
Act 116 of 1998.
11
This article uses the term ‘sexual assault’ as a collective term for acts of violence defined in
South African criminal law as ‘rape’, ‘indecent assault’ and ‘crimen iniuria’respectively. The
term ‘rape’, which has a more circumscribed legal meaning, is retained in direct quotes or
where required by the context.
12
Criminal Law (Sexual Offences) Amendment Bill [B50–2003].
13
Due to the vast scope of the topic, a detailed analysis of all recent legal developments
relating to violence against women is not possible here. A notable omission is the intersection
between gender-based violence and HIV/AIDS.
14
See H Combrinck & Z Skepu Bail in Sexual Assault Cases: Victims’ Experiences (2003)
50–51. While this model may be criticized for being overly mechanical, it does provide a useful
outline for a descriptive overview such as the present one.
15
Section 39(1)(b) of the Constitution provides that a court must consider international law
when interpreting a right in the Bill of Rights.
172 ADVANCING WOMEN’S RIGHTS
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