Troubling judicial double standard around gender-based violence in South Africa

From 25 November to 10 December 2024, South Africa will participate in the global 16 Days of Activism Against Gender-Based Violence campaign. This period offers a vital opportunity to listen to the experiences of survivors, mourn the absence of those who did not survive, reflect on the society we live in, and think about the kind of society we want to create moving forward.

We all know too well that South Africa is a place that is not safe for women. Approximately 11 women are murdered every day in the country, which equates to one woman being murdered every two hours. Although we often use the term “femicide” to refer to the murder of women, a term that acknowledges the gendered and discriminatory nature of the violence, Nechama Brodie perhaps provides a more suitable term when she refers to these murders as “woman-slaughter”.  

In a study by the Medical Research Council on femicide or woman-slaughter during the period of 2020/2021, it was found that 60% of women who were murdered were killed by their intimate partners, with one in six women who were murdered also having signs of sexual violation. Furthermore, only one in five cases resulted in a conviction of the abusive perpetrator. 

What becomes very clear from the statistics is there is a relentlessness in the slaughter of women in the country, which is also accompanied by an ineffectual criminal justice system. 

There is an irony, however, around the tenacity of the State to punish women who kill their abusive partners when trying to defend themselves, as opposed to punishing those who violate and murder women.

Although we do not have official statistics on the conviction rate of women who kill, a reflection on some of the appeal cases still reveals a strong theme of punishing women for surviving. Looking at 17 previous appeal cases of women who killed their abusive partners, one woman was acquitted, and 16 women were convicted of murder. In 35.7% of cases, women received sentences of more than 20 years.  

The theme of punishing women for surviving can be seen very starkly in the current case of “MN”. MN is a client of the Centre for Applied Legal Studies who experienced harrowing and unyielding abuse by her intimate partner before killing him.

The Palmridge Magistrate’s Court heard how she had been raped by him earlier in the evening of the incident, having also been locked in his home and having her life threatened if she tried to leave. A struggle over a knife, which she was using to pry open the shack door and escape, resulted in his death.

She was found guilty of murder and sentenced to 10 years in prison. She had been consistently denied bail during the period before her hearing and spent four years as an awaiting-trial prisoner. Although courts ordinarily offset time spent as an awaiting trial prisoner against the total sentence, she would not receive this reduction. 

Consistent uncertainties