Gender-Based Violence as a Human Rights Violation: Evaluating Legal Responses in South Africa and the International Sphere.

Abstract

Gender-Based Violence (GBV) remains one of the most serious human rights challenges worldwide, violating fundamental rights to equality, and affecting individuals across social, cultural, and economic divides. This article analyses GBV through the lens of human rights law, examining both international and South African legal frameworks established to address it. Internationally, instruments such as the Universal Declaration of Human Rights (UDHR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the Maputo Protocol create state obligations to prevent and respond to GBV. In South Africa, the Constitution of 1996, the Domestic Violence Act 116 of 1998, and the Criminal Law (Sexual Offences and Related Matters) Amendment Acts form the core of the national response. The article will examine the Cwecwe's case, it exposed the failure of a school to protect a seven-year-old girl from sexual assault, and the case of Carmichele v. Minister of Safety and Security, which affirmed the state’s duty to protect individuals from violent crimes. 

Introduction

Gender-Based Violence (GBV) represents one of the most pervasive violations of human rights globally, cutting across boundaries of age, race, class, and culture. The gender-based violence involves act of physical, sexual, psychological, or economic harm directed against individuals most women on the basis of their gender. Additional, GBV violate the core values of equality, dignity, and freedom that form the foundation of human rights. The international laws such as the Universal Declaration of Human Rights (UDHR) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) gives the right of every person to live free from violence and discrimination. Furthermore, the Maputo Protocol known as the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa further reinforces the obligation of African states to protect women from all forms of abuse and exploitation.

In 1996, the constitution of Republic of South Africa it came in power in order to address the issue of Gender based and inequality. The Constitution of the Republic of South Africa gives  the rights to equality (Section 9), human dignity (Section 10), and freedom and security of the person (Section 12), it provide a powerful human rights foundation for addressing GBV. The are statutes that work together with this constitutional framework such as the Domestic Violence Act 116 of 1998 and the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, which seek to offer protection and justice for victims.

However, despite these legal provisions, GBV still continue to entrenched in South African society. This article, therefore seeks to examine the intersection between human rights and gender-based violence, evaluating both international and South African legal responses. 

1. The Human Rights Framework: International Perspective

The international community has long recognized Gender-Based Violence (GBV) as a violation of human rights that undermines human dignity and equality. Over the years, several global and regional instruments have been adopted to ensure that states take legal, social, and institutional measures to eliminate violence against women and other vulnerable groups. These instruments establish a binding obligation on governments to prevent GBV, protect victims, and prosecute perpetrators.

The Universal Declaration of Human Rights (UDHR) of 1948, states that all human beings are born free and equal in dignity and rights.The Elimination of All Forms of Discrimination against Women (CEDAW), it represents the most comprehensive international treaty addressing women’s rights. According to CEDAW, it require member states to eliminate discrimination against women in all spheres of life and to take appropriate measures to protect them from gender-based violence. In 1992, the CEDAW Committee issued General Recommendation No. 19, directly recognising gender-based violence as a form of discrimination that stop women’s enjoyment of human rights and fundamental freedoms. This recognition marked a turning point in linking violence against women directly to state responsibility.

2. The South African Legal Framework

The Constitution of the Republic of South Africa forms the cornerstone of the national response to GBV. The Bill of Rights guarantees equality, dignity, and freedom from violence principles directly relevant to addressing gender-based abuse. According to Section 9 of the constitution it states that everyone is equal before the law and prohibits discrimination based on gender, sex, or any other status, while Section 10 states that everyone has right to dignity and the right to have their dignity respected and protected. Moreover, Section 12 ensures the right to freedom and security of the person. These constitutional provisions reflect South Africa’s commitment to a rights-based approach that places human dignity and equality at the centre of its fight against GBV. The Domestic Violence Act 116 of 1998 it provides a broad definition of domestic violence that includes physical, sexual, emotional, psychological, and economic abuse. 

The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 expanded the definition of sexual offences and strengthened procedural protections for survivors. According to the criminal Law (Sexual Offences and Related Matters) Amendment Act it emphasizes consent, broadens the categories of sexual crimes, and introduces measures to protect vulnerable victims, such as children and persons with disabilities. Similarly, the Protection from Harassment Act extended protection to individuals who experience stalking and harassment outside of domestic relationships, reflecting a growing recognition that GBV comes in many forms and contexts. 

An important case that illustrates the intersection between GBV and human rights in South Africa is Carmichele v Minister of Safety and Security in this case, the applicant, Ms. Carmichele, was brutally assaulted by a man who had been released on bail despite a known history of violence against women. The Constitutional Court held that the state has a duty to protect individuals from violations of their constitutional rights. The Court emphasized that this duty arises not only from the Constitution but also from South Africa’s international obligations under instruments such as CEDAW. In essence, the South African legal framework provides a solid foundation for addressing GBV from a human rights perspective, yet the challenge lies in bridging the gap between law and practice. 

Challenges in Implementation

Despite South Africa’s robust legal framework for addressing Gender-Based Violence (GBV), including the Domestic Violence Act and the Criminal Law (Sexual Offences and Related Matters) Amendment Act, the country continues to raise with high rates of violence against women and children. The gap between legal provisions and their practical application underscores systemic issues within law enforcement, and institutional responses. Many victims choose not to report incidents due to fear of retaliation, social stigma, and a lack of trust in the criminal justice system to offer real protection or justice. Even when cases are reported, long delays in prosecution and conviction discourage survivors from pursuing justice and often deepen their trauma. 

For example, JusticeForCwecwe campaign for alleged sexual assault of a seven-year-old girl at Bergview College in Matatiele, Eastern Cape. The school's inadequate response and subsequent public outcry led to national protests and calls for stricter child protection measures in educational institutions.This case illustrates that while legal frameworks exist, their effectiveness is often weakened by inconsistent enforcement, and institutional failures. Therefore, in order to end gender-based violence needs more than just strong laws it also requires proper enforcement and public education. GBV calls for unity and a shared commitment to achieving gender justice.

Conclusion

Gender-Based Violence (GBV) is one of the most pervasive human rights violations in South Africa and around the world. Despite progressive constitutional and legislative frameworks both nationally and internationally the persistence of GBV reveals that legal provisions alone are insufficient to protect victims and eradicate violence. Additional, Cases such as Cwecwe’s in South Africa and ongoing GBV-related crises in conflict zones globally underscore the urgent need for effective enforcement, societal transformation, and comprehensive support for survivors.

Bibliography

The Constitution of the Republic of South Africa,1996.

Articles

Anastacia, “Human Rights Practices and Gender-Based Violence in South Africa: A Legal Perspective” 2025.

Wunrn, “CEDAW Committee General Recommendation No. 19 on Violence Against Women” 2016.

Oshin Johari, “Gender-Based Violence and Human Rights: Legal Responses to Protect Vulnerable Population” 2024 IJHRLR p2009.

Melody, “The rape of seven-year-old Cwecwe reignited the debate about the safety of women and children in South Africa”2024.

Books

Terry Gender-based violence. Oxfam 2007.

Cases

Carmichele v Minister of Safety and Security 2001 4 SA 938 CC.

Legislations

The Convention on the Elimination of All Forms of Discrimination against Women.

 The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

The Domestic Violence Act 116 of 1998.

The Universal Declaration of Human.

The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa 2003.

The Protection from Harassment Act 17 of 2011.

This article is authored by Mpho Cynthia Raat, who was among the Top 40 performers in the Quiz Competition on International Human Rights organized by Lets Learn Law.