Gender-based and domestic violence (“GBV” and “DV”) remains one of South Africa’s most serious and persistent human rights challenges. Despite a comprehensive legislative framework and repeated acknowledgment by the courts that domestic violence is systemic and unacceptable, violence continues at devastating levels — often in circumstances where warning signs were present and intervention was possible.

Recent community mobilisation, including lawful advocacy initiatives such as those led by the Get Nosey Movement, reflects a growing refusal to accept silence and inaction as inevitable. While public action plays an important role in drawing attention to the crisis, meaningful protection and prevention ultimately depend on how the law is understood, accessed, and implemented. On the instructions of our client, the Get Nosey Movement, our firm formally handed over an open letter to the President of the Republic of South Africa, calling for urgent, constitutionally grounded action on GBV and domestic violence in light of it recently being declared a national disaster.

Domestic Violence Is a Constitutional Issue
Domestic violence is not a private matter. The Constitutional Court has consistently held that it implicates fundamental constitutional rights, including dignity, equality, and the right to freedom and security of the person.

In S v Baloyi and Omar v Government of the Republic of South Africa, the Court recognised the systemic nature of domestic violence and the State’s positive duty to protect those at risk. What distinguishes domestic violence is its hidden, repetitive, and escalating character — often occurring behind closed doors, across all communities, and with devastating consequences when early intervention fails.

The Domestic Violence Act: Broad Protection, Wide Access
South Africa’s Domestic Violence Act 116 of 1998, as amended, provides wide-ranging protection to those in domestic relationships. Importantly:

• There is no age restriction on applicants. Children may apply for protection in their own right — a feature unique to South African law.
• A “domestic relationship” is broadly defined and includes current or former intimate partners, spouses, family members, people who share or shared a residence, and parents of a child.
• Domestic violence includes not only physical abuse, but also emotional, psychological, verbal, sexual, and economic abuse, intimidation, harassment, stalking, coercive behaviour, controlling behaviour, damage to property, and exposure of a minor child to domestic violence.

An interim protection order may be granted urgently where harm is proved on a prima facie basis. Once confirmed, a final protection order remains valid indefinitely, unless varied or set aside by a court.

What a Protection Order Can Provide
A protection order can include practical and enforceable relief, such as:

• Prohibiting any form of direct or indirect contact or harassment;
• Ordering the respondent to vacate a shared residence;
• Regulating contact or care arrangements relating to children;
• Granting emergency monetary relief for essential needs;
• Seizing firearms or dangerous weapons.

The amended Act also introduced Safety Monitoring Notices, intended to enhance early intervention in high-risk cases. While these mechanisms exist in law, their effectiveness has been limited by insufficient resources, highlighting the ongoing gap between legislation and implementation.

Criminal Proceedings, Bail, and Escalation Risk
Where domestic violence results in criminal charges, the Criminal Procedure Act becomes critical. In matters involving a domestic relationship, serious violence, or breaches of protection orders, bail proceedings frequently fall under Schedule 5, placing the onus on the accused to show why release would be in the interests of justice.
Breaches of protection orders are not administrative inconveniences. They are often indicators of escalation and imminent danger and must be treated with appropriate seriousness by law enforcement and the courts.

Protection from Harassment Act: A Distinct Remedy
The Protection from Harassment Act 17 of 2011 provides protection where there is no domestic relationship between the parties. While commonly misunderstood as a remedy for neighbourly or interpersonal disputes, its purpose is to address serious, persistent harassment that causes harm or fear.

Harassment protection orders are:
• Available regardless of age;
• Valid for five years, unless extended by a court on good cause shown.

Duty of Good Faith
These types of proceedings require applicants to act in good faith. Courts are clear that protection legislation must not be abused for tactical advantage, retaliation, or to harass others through the legal process. Applicants bear a duty of honesty, proportionality, and lawful use of court mechanisms.

Why Legal Advice Matters — Even If You Do Not Need Representation
While legal representation is not required to apply for a protection order, consulting an attorney can be invaluable. 
An attorney can:

• Explain which Act applies to your situation;
• Assist in properly framing allegations and relief sought;
• Assist with the correct presentation of evidence;
• Help avoid procedural errors that delay protection;
• Ensure the court process is used responsibly and in good faith.

Early legal guidance can strengthen protection, reduce re-traumatisation, and ensure that court processes are not misused or misunderstood.

The Real Crisis: Implementation, Not Law
South Africa’s challenge is not a lack of legal tools. It is the persistent failure to implement them effectively. Under-resourced police stations, inaccessible courts, lack of training, and dismissive responses by stakeholders continue to place victims at risk.
Where officials fail to act on known dangers, the courts have made it clear that the State may be held constitutionally and delictually liable, as affirmed in Carmichele v Minister of Safety and Security, and in the current climate, it might be time to start pursuing these remedies.

Conclusion
Gender-based and domestic violence is not inevitable. It is enabled by silence, under-resourcing, and failures of accountability.
The law provides strong, constitutionally grounded mechanisms to protect victims and prevent escalation. What is required now is consistent application, proper resourcing, and a collective refusal, by institutions and communities alike, to look away.
If you are experiencing domestic violence, harassment, or are unsure of your legal options, you are not required to navigate the system alone.
If you have any concerns or require guidance, please feel free to contact our offices for advice and assistance.