Gender-Based Violence Bills in South Africa Explained

Gender-based violence has been described by the South African President as a second pandemic facing the country, and the legislative response to it has been substantial. Over the past two decades Parliament has built a layered framework of statutes that together govern protection orders, the prosecution of sexual offences, the regulation of bail and sentencing in domestic matters, and the support owed to victims by State institutions. For anyone trying to understand that framework, the difficulty is not a lack of law but the number of overlapping instruments and amendments.

This article explains the principal Acts that make up South Africa’s gender-based violence regime: the Domestic Violence Act 116 of 1998, the Sexual Offences and Related Matters Amendment Act 32 of 2007, the Protection from Harassment Act 17 of 2011, the three Gender-Based Violence Amendment Acts of 2021, and the National Strategic Plan on Gender-Based Violence and Femicide. It sets out what each statute does, how the 2021 amendments changed the original framework, and where the two systems, civil protection and criminal prosecution, meet in practice.

The Domestic Violence Act 116 of 1998

The Domestic Violence Act 116 of 1998 is the civil backbone of the regime. It allows a complainant in a defined domestic relationship, including spouses, partners, cohabitants, parents of a child, family members, and people who are or were in an engagement or dating relationship, to approach a magistrate’s court for a protection order without laying a criminal charge and without waiting for an arrest.

The Act defines domestic violence broadly to include physical, sexual, emotional, verbal, psychological, and economic abuse, as well as intimidation, harassment, stalking, damage to property, entry into a complainant’s residence without consent, and any other controlling or abusive conduct. A protection order can prohibit the respondent from committing further acts of violence, evicting them from a shared home, requiring them to pay rent or maintenance, surrendering firearms, and forbidding direct or indirect contact with the complainant or children in the household.

Crucially, contravening a protection order is itself a criminal offence under section 8 of the Act. The civil order and the criminal sanction therefore run side by side: the protection order manages the ongoing risk to the complainant, while section 8 punishes any breach.

The Sexual Offences and Related Matters Amendment Act 32 of 2007

The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, commonly referred to as the Sexual Offences Act, comprehensively rewrote the criminal law of rape, sexual assault, and related crimes. It replaced a patchwork of common-law and statutory offences with a single coherent code, introduced a gender-neutral definition of rape, and created new offences including compelled rape, compelled sexual assault, sexual exploitation, and the trafficking of persons for sexual purposes.

The Act also established the National Register for Sex Offenders, originally limited to offenders who committed sexual offences against children or persons with mental disabilities. It imposes a duty on any person who has knowledge of a sexual offence against a child or a person with a mental disability to report that knowledge to the South African Police Service, and it sets out a framework of services for victims, including access to post-exposure prophylaxis and forensic examination at designated Thuthuzela Care Centres.

The Protection from Harassment Act 17 of 2011

The Protection from Harassment Act 17 of 2011 fills a gap that the Domestic Violence Act could not. The Domestic Violence Act applies only between parties in a defined domestic relationship. Where the harasser is a stranger, a neighbour, a colleague, or any other person outside that domestic nexus, the Protection from Harassment Act provides the remedy.

The Act allows a complainant to obtain a protection order against stalking, loitering, watching a residence or workplace, repeated unwanted communication, sexual harassment, and any conduct that causes harm or inspires the reasonable belief that harm may ensue. It was also the first South African statute to permit a complainant to approach a court for an order directing an electronic communications service provider to furnish the identity and address of an anonymous online harasser, an important tool in cyber-stalking and online harassment matters.

The Three Gender-Based Violence Amendment Acts of 2021

In January 2022, three amendment Acts, often referred to collectively as the Gender-Based Violence Bills, came into operation. They are:

• The Domestic Violence Amendment Act 14 of 2021, which amends the Domestic Violence Act 116 of 1998.
• The Criminal Law (Sexual Offences and Related Matters) Amendment Act 13 of 2021, which amends the Sexual Offences Act 32 of 2007.
• The Criminal and Related Matters Amendment Act 12 of 2021, which amends the Criminal Procedure Act 51 of 1977 and related statutes.

What the Domestic Violence Amendment Act 14 of 2021 Changed

The Domestic Violence Amendment Act expanded the definitions in the principal Act from around 24 to more than 50, adding the concepts of controlling behaviour and coercive behaviour, and broadening the scope of domestic violence to include spiritual abuse, elder abuse, and the exposure of children to domestic violence in the household. It also introduced express protection for persons in engagements, dating relationships, and customary relationships.

Procedurally, the amendment Act allows a complainant to apply for a protection order electronically, removing the need to attend a clerk of the court in person. It places duties on the Department of Health, the Department of Social Development, and the South African Police Service to provide specific services, including shelters, counselling, and victim-friendly reporting facilities, and it tightens the obligations on police officials who receive a complaint.

What the Sexual Offences Amendment Act 13 of 2021 Changed

Act 13 of 2021 widened the reach of the National Register for Sex Offenders so that it now captures all persons convicted of sexual offences, not only those whose victims were children or persons with mental disabilities. It extended the categories of protected vulnerable persons to include women under the age of 25, persons with physical, intellectual, or mental disabilities, and persons over the age of 60.

• The register is no longer limited to offences against children and persons with mental disabilities.
• New offences were created, including a broader offence of incest and the offence of sexual intimidation.
• The period for which an offender’s particulars remain on the register before they may apply for removal was extended.
• The duty to report knowledge of a sexual offence against a vulnerable person was reinforced and broadened.

The cumulative effect is to make the register a more comprehensive tool for protecting vulnerable groups and to harden accountability for offenders who would previously have escaped registration.

What the Criminal and Related Matters Amendment Act 12 of 2021 Changed

Act 12 of 2021 is the procedural counterpart to the other two amendments. It amended the Criminal Procedure Act 51 of 1977 in three main respects.

• It reclassified certain domestic-violence-related offences as Schedule 5 and Schedule 6 offences, so that an accused must bring a formal bail application and the court must apply the stricter “interests of justice” test before release is granted.
• It expanded the use of intermediaries and audio-visual links so that vulnerable witnesses, including children and persons with disabilities, may give evidence through closed-circuit television or a supported intermediary.
• It gave complainants in domestic-violence-related matters the right to participate in parole proceedings and to make representations when an offender is being considered for release, a right that previously did not exist in the criminal process.

Together these changes push the criminal system to take the safety of the complainant into account at the bail stage, the trial stage, and the correctional-services stage, rather than only at sentencing.

The National Strategic Plan on Gender-Based Violence and Femicide

Alongside the statutes, the National Strategic Plan on Gender-Based Violence and Femicide 2020 to 2030 sets out the State’s policy response. The plan is structured around six pillars: accountability, coordination and leadership; prevention and rebuilding social cohesion; justice, safety and protection; response, care and support; economic power; and research and information management.

The plan does not create enforceable rights in the way a statute does, but it shapes the way Departments are funded and the way front-line services, including Thuthuzela Care Centres, Khuseleka One Stop Centres, and the GBVF Response Fund, are rolled out. It is the policy frame against which the 2021 amendments were designed.

How the Civil and Criminal Routes Interact

A recurring source of confusion is the relationship between the civil protection regime and the criminal prosecution route. They are distinct, and they run in parallel rather than in sequence.

• A protection order under the Domestic Violence Act or the Protection from Harassment Act is a civil remedy and does not depend on a conviction or even on an arrest.
• The criminal prosecution, whether for assault, rape, contravening a protection order, or any other offence, proceeds independently and is decided by the National Prosecuting Authority on the basis of the docket prepared by SAPS.
• An alleged breach of a protection order triggers section 8 of the Domestic Violence Act, which is itself a criminal offence and is prosecuted in the ordinary criminal courts.
• Statements made in the protection-order proceedings can, in certain circumstances, become relevant in the criminal trial, which is why legal advice should be sought before papers are filed.

Frequently Asked Questions

What are the Gender-Based Violence Bills in South Africa?

The Gender-Based Violence Bills are three amendment Acts that came into operation in January 2022: the Domestic Violence Amendment Act 14 of 2021, the Criminal Law (Sexual Offences and Related Matters) Amendment Act 13 of 2021, and the Criminal and Related Matters Amendment Act 12 of 2021. Together they amend the Domestic Violence Act 116 of 1998, the Sexual Offences Act 32 of 2007, and the Criminal Procedure Act 51 of 1977 to strengthen protections for victims and tighten bail, sentencing, and evidence procedures.

What is the difference between the Domestic Violence Act and the Protection from Harassment Act?

The Domestic Violence Act 116 of 1998 applies only between parties in a defined domestic relationship, such as spouses, partners, family members, or cohabitants. The Protection from Harassment Act 17 of 2011 applies where no such domestic relationship exists, for example where the harasser is a stranger, a neighbour, or a colleague. Both statutes allow a complainant to obtain a protection order, but they cover different categories of respondent.

When does a protection order become a criminal matter?

A protection order itself is a civil order. It becomes a criminal matter when the respondent breaches any of its terms. Section 8 of the Domestic Violence Act 116 of 1998 makes contravening a protection order a criminal offence, which is prosecuted in the criminal courts and can carry a sentence of imprisonment or a fine, or both.

What did the 2021 amendments change about bail in domestic violence cases?

The Criminal and Related Matters Amendment Act 12 of 2021 reclassified certain domestic-violence-related offences as Schedule 5 and Schedule 6 offences. This means an accused must bring a formal bail application under section 60 of the Criminal Procedure Act 51 of 1977, and the court may grant bail only if the interests of justice permit, applying a stricter test than applied previously.

Who is on the National Register for Sex Offenders?

Following the Criminal Law (Sexual Offences and Related Matters) Amendment Act 13 of 2021, the National Register for Sex Offenders captures all persons convicted of sexual offences, not only those whose victims were children or persons with mental disabilities. The register exists to prevent offenders from working with or gaining access to vulnerable groups, including children, young women, persons with disabilities, and persons over 60.

Get help with a criminal law matter. If you need advice on a protection order, a domestic violence charge, a contravention allegation, or any prosecution arising under the Sexual Offences Act, Otrebski Attorneys’ Criminal Law department in Sandton can assist. Director Nastasja Otrebski leads a 100% women-led, Level 4 B-BBEE practice that carries a 5-star Google rating across 12 reviews.

Disclaimer. This article is general information about the South African statutes governing gender-based violence, not legal advice for a specific matter. Legal outcomes in domestic violence cases under the Domestic Violence Act, the Sexual Offences Act, and the Criminal Procedure Act turn on the particular facts of each case. For advice on a real protection-order application, charge, or bail hearing, consult a qualified attorney or the Legal Aid South Africa office nearest you.