2.1 Are there civil and criminal legal remedies for domestic violence victims?
Yes. Please refer to Sections 4 and 5 below.
2.2 Is domestic violence identified in national law as a human right (noting that at a European level protection from domestic violence has not been explicitly identified as a human right but is indirectly captured by the other provisions)?
Yes. Under the Constitution, everyone has the fundamental right to:
- inherent dignity and the right to have their dignity respected and protected[4]
- life[5]
- freedom and security of the person, which includes the right:
- to be free from all forms of violence from either public or private sources
- not to be tortured in any way
- not to be treated or punished in a cruel, inhuman or degrading way[6]
2.3 Has your country signed and ratified the conventions?
Yes. South Africa signed and ratified the Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa ("Maputo Protocol") in 2004.[7] In addition, South Africa is also a state party to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), having ratified the convention in 1995.[8]
2.4 If it has ratified the Maputo Protocol, how has it been implemented into national law (African Union member states only)?
Prior to the ratification of the Maputo Protocol, and having regard to CEDAW as well as the right to inter alia equality, freedom and security of person contained in the Constitution,[9] South Africa enacted national laws that serve to prevent and prohibit the unfair discrimination of women and promote women's rights, as well as responding to the high incidence of domestic violence in South Africa, such as the DVA. Since then, the Maputo Protocol has been localized in a piecemeal manner through law reform in certain areas, and has been referred to in instances where, for example, common laws have been developed such as the application of the doctrine of common purpose to the common law crime of rape.[10]
2.5 If it has ratified the 1979 Convention (CEDAW), how has the recommendations part of General Comment No. 35 been implemented into national law?
Having regard to CEDAW, South Africa has inter alia enacted the DVA and the Promotion of Equality and Prevention of Unfair Discrimination Act No. 4 of 2000, which regulates and echoes the legal framework on gender-based violence as adopted in CEDAW's General Recommendation No. 35 ("Recommendation 35"). The DVA recognizes that domestic violence is a serious social evil and strives to afford the victims of domestic violence the maximum protection from domestic abuse that the law can provide.
In addition, the South African Criminal Law (Sexual Offences and Related Matters) Amendment Act explicitly highlights that a marital or other relationship, previous or existing, cannot be a defense for rape, compelled rape or sexual assault.[11] This expands the understanding of violence to include violations of a sexual nature that women suffer at the hands of their partners or spouses.