Fractured justice: A critical examination of the justice system in addressing Gender-Based Violence through a human rights lens

Mlondolozi Mvikweni ORCID iD & Zibele Norless NodangalaORCID iD

Issue: Vol. 7 No.8 2026 Article 17 pp.2413 – 2432
DOI: https://doi.org/10.38159/ehass.20267817  Published online 22nd October 2026

© 2026 The Author(s). This is an open access article under the CCBY license (http://creativecommons.org/licenses/by/4.0/).

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Gender-Based Violence (GBV) remains one of the most pervasive human rights violations in South Africa, exposing persistent structural weaknesses within the criminal justice system and undermining constitutional guarantees of dignity, equality, freedom, and access to justice. Despite an extensive legislative and policy framework aimed at combating GBV, the continued prevalence of violence against women and other vulnerable groups raises critical questions about the effectiveness of existing legal and institutional responses. This article critically examined South Africa’s justice system in addressing GBV through a human rights-based approach, with particular emphasis on the implementation of constitutional obligations, the protection of victims, and the broader social implications of systemic failures. The study adopted a qualitative doctrinal research methodology, analysing constitutional provisions, domestic legislation, international and regional human rights instruments, judicial decisions, government policies, and relevant academic literature to evaluate the suitability of the current legal framework for responding to GBV. The findings reveal that, although South Africa has one of the most progressive constitutional and legislative frameworks globally, significant implementation gaps persist. These include delayed investigations, secondary victimisation, inadequate victim support services, etc. It recommends strengthening institutional accountability, improving specialised training for justice sector officials, expanding survivor-centred support services, increasing resource allocation, and promoting community-based preventative interventions grounded in constitutional values and Ubuntu. This study contributes to scholarship by advancing an integrated human rights critique of South Africa’s GBV justice framework and proposing context-specific reforms to bridge the gap between legal protection and substantive justice for survivors.

Keywords: Constitution, Gender-Based Violence, Justice, Ubuntu, Dignity.

Legislation

Constitution of the Republic of South Africa, 1996

Criminal and Related Matters Amendment Act 12 of 2021

Criminal Procedure Act 51 of 1977

Domestic Violence Act 116 of 1998

Domestic Violence Amendment Act 14 of 2021

Drugs and Drug Trafficking Act 140 of 1992, Government Gazette No. 14143, 15 July 1992

Prevention of and Treatment for Substance Abuse Act 70 of 2008

Sexual Offences and Related Matters Amendment Act 32 of 2007

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AK v Minister of Police 2022 (11) BCLR 1307 (CC)

Botha v The State (546/2021) [2022] ZASCA 87

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

Centre for Child Law v Director of Public Prosecutions, Johannesburg and Others 2022 JDR 2656 (CC)

Guggenheim v Rosenbaum 1961 (4) SA 21 (W)

Maila v The State [2023] ZASCA 3

S v Baloyi [2019] ZAGPJHC 7

S v Makwanyane 1995 (3) SA 391 (CC)

S v Manyathi [2025] ZAECMKHC 5

S v Mbatha (SS118/19) [2020] ZAGPJHC 343

S v Mthembu (2018) ZAGPJHC 12

S v Ndlovu [unreported]

S v Mgobhozi [unreported]

S v P 2022 2 SACR 81 (WCC)

S v Robertson [2022] ZAWCHC 104

State v Oscar Pistorius [2014] ZAGPPHC 618; [2016] ZAGPPHC 734

The State v Omotoso (ECP) (unreported case number 71/2019, 2024-03-22)

International and Regional Instruments

African Union. African Charter on Human and Peoples’ Rights. 1981

African Union. Protocol to the African Charter on Human and Peoples’ Rights on Women’s Rights in Africa (Maputo Protocol). 2003

Convention on the Elimination of Discrimination against Women (CEDAW), 1979, UN Doc. A/34/46

CEDAW General Recommendation No. 19 on Violence against Women (1992)

United Nations. Declaration on Eliminating Violence against Women, A/RES/48/104 (1993)

United Nations. Sustainable Development Goals. 2015. https://sdgs.un.org/goals

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Mr. Mlondolozi Mvikweni is a Junior Lecturer in the School of Law at iYunivesithi Walter Sisulu, with research interests anchored in Transformative Constitutionalism, Private Law, and the intersection of law, governance, and emerging technologies. His scholarship explores how constitutional values reshape traditional private law doctrines and how legal frameworks can be reimagined to address systemic inequality and promote social justice. His work spans procedural fairness in administrative and constitutional litigation, the regulation of artificial intelligence in research and governance, corporate governance in emerging markets, and the legal implications of technological advancements in healthcare and local government. He has presented his research at national and international conferences, contributing to academic discourse on the transformative potential of law in South Africa and beyond.

Zibele Norless Nodangala is a Lecturer in Public Law at the School of Law and Secretary of the FLHSS Advisory Board. He holds an LLB and an LLM from Walter Sisulu University, a Postgraduate Diploma in Higher Education from Rhodes University, and is pursuing an LLD at the University of the Free State. His research focuses on human rights, constitutional law, and socio-economic transformation, including the Marikana tragedy. He has published on child protection, gender-based violence, and access to education in under-resourced institutions. Nodangala is dedicated to using the law to advance social justice and sustainable development.

Mvikweni, Mlondolozi, and Zibele Norless Nodangala. “Fractured justice: A critical examination of the justice system in addressing Gender-Based Violence through a human rights lens.” E-Journal of Humanities, Arts and Social Sciences 7, no.8 (2026): 2413 – 2432. https://doi.org/10.38159/ehass.20267817

© 2026 The Author(s). Published and Maintained by Noyam Journals. This is an open access article under the CCBY license (http://creativecommons.org/licenses/by/4.0/).

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