The Law of Delict and Gender-Based Violence in South Africa

Abstract

South Africa’s law of delict has undergone much development, most of which has taken place by virtue of the Constitution of the Republic of South Africa, 1996, and its predecessor, the Constitution of the Republic of South Africa, Act 200 of 1993. This has been particularly important in the context of gender-based violence (GBV) and police liability for omissions and commissions. In a number of groundbreaking cases, the courts developed the common law by casting the net of the law of delictual liability wider to ensure that there is accountability for serious instances of GBV. The question of whether this development has been successful in abating the scourge of GBV is complicated. While the police have been held liable over a period of two decades for failures to protect the vulnerable, specifically women and children, statistics paint a sad picture of violence continuing unabated. Moreover, the amounts of damages that are being paid out to individual plaintiffs could be utilised to prop up an ailing police force.