THE CONSTITUTIONAL ROLE OF THE JUDICIARY IN CASES OF SEXUAL GBV: AN ANALYSIS OF TSHABALALA v S; NTULI v S 2020 (5) SA 1 (CC)

Abstract

The Constitution of the Republic of South Africa is the supreme law, and it imposes obligations on all arms of the State, including the judiciary. In performing their functions and exercising their powers, all three arms of the State are obliged to fulfil the obligations imposed by the Constitution. In particular, all three arms of the State are bound by the provisions of the Bill of Rights. The Bill of Rights, provided for in the Constitution, is a cornerstone of democracy in the country. The Bill of Rights provides for fundamental human rights, which must be respected, protected, promoted and fulfilled by the State. Different legal systems recognised in the Republic also have to comply with the provisions of the Bill of Rights. In particular, section 39(2) of the Constitution provides that whenever legislation is interpreted and when the common law and customary law are being developed, the spirit, purport and objects of the Bill of Rights must be promoted. Therefore, even when a case before a court calls for the application of common law and all the principles applicable under common law, such application must comply with the provisions of the Constitution, including in cases of common-law rape. Gender-based violence has reached alarming rates in South Africa. The country is referred to as the “femicide nation” and the “rape capital of the world”. With a Constitution that is supreme and entrenched, a Bill of Rights that provides for the protection and promotion of fundamental human rights, and obligations incurred in terms of international and African human-rights treaties, there are particular obligations placed on all three arms of the State, including the judiciary. All three arms of the State are obliged to comply with these provisions when addressing the scourge of gender-based violence in the country. This article conducts a critical analysis of the constitutional role of the judiciary in cases of sexual gender-based violence, with a focus on section 39(2) of the Constitution. The analysis is based primarily on the case of Tshabalala v S; Ntuli v S 2020 (5) SA 1 (CC).