- Positive State Duties to Protect Women from Violence: Recent South African Developments*
“A right provides the rational basis for a justified demand.” 1
In the past, attempts to improve legislative, judicial, and executive responses to violence against women in South Africa met with limited success at best. 2 For instance, in 1985 the South African Law Commission considered, and rejected, various submissions that were aimed at improving the state’s approach to sexual offenses. 3 In S v. M., 4 the Supreme Court (Witwatersrand Local Division) rejected a challenge to the rule of evidence [End Page 666] that requires a judicial officer to regard the evidence of complainants in sexual offense cases with caution (known as the cautionary rule). 5 In retrospect, one likely could attribute this situation on the one hand to a lack of political commitment to improve the position of women generally, and on the other hand to a lack of clarity on the government’s duties towards women who are subjected to violence. Judicial insensitivity to gender reform also played a role. 6
The 1993 Interim Constitution 7 guaranteed a right to freedom and security of the person; however, protection against violence as an aspect of the right to security of the person was not explicitly mentioned. 8 The question whether positive duties exist to protect individuals against violence (and whether such duties would apply in the case of violence against women) was unspecified and thus left to judicial interpretation. 9
The adoption of section 12(1)(c) of the 1996 Constitution, 10 which specifically entrenches the right “to be free from all forms of violence from public or private sources,” 11 has altered this position significantly. Although the inclusion of this right might have far-reaching implications generally, its effect likely will be felt most keenly in the area of violence against women.
The issue of state obligations has also been drawn into sharp focus recently by the participation of the South African government at the UN Fourth World Conference on Women held in Beijing in 1995, and the commitments undertaken by the Beijing Declaration and Platform of Action. 12 Subsequent to the Beijing Conference, the South African government also ratified the Convention on the Elimination of All Forms of Discrimination against Women. 13 [End Page 667]
A civil action recently instituted by a rape survivor 14 against the South African Ministers of Safety and Security and Justice raises a number of interesting questions regarding the state’s duties to take particular steps to protect women against violence and liabilities that could arise from failure to take such action. The plaintiff in this matter, who was brutally raped and assaulted by two men, is alleging that various state officials were negligent in granting the two accused men bail on similar, though unrelated, charges before her attack. 15
Against this background, this article aims to establish the combined influence of the South African Constitution and recent developments in the sphere of international human rights law on state obligations to address violence against women. It first examines the nature of state duties created by human rights generally. It evaluates the role of international law in the interpretation of the South African Bill of Rights, and subsequently analyzes the obligations created under a number of international human rights instruments. This analysis is then used as a basis for examining the effect of the inclusion of the right to be free from violence in the Final Constitution. 16 The article finally draws conclusions regarding the scope and implications of this right and related duties created by international law.
II. The Nature of Obligations Generated by Human Rights
As a general point of departure it is useful to examine the nature of duties created by human rights. Shue suggests a conceptual typology of duties that goes beyond the usual assumption that every right has “a correlative duty.” 17 He instead proposes that every basic right assumes three types of duties (all of which must be performed if the basic right is to be fully honored, though not necessarily by the same individuals or institutions): a duty to avoid violating the right in question, a...