BETWEEN PROTECTION AND DUE PROCESS: HOW SOUTH AFRICAN COURTS HANDLE GBV AND WHAT TO DO WHEN YOU NEED SAFETY OR FACE BASELESS CHARGES

The legal architecture South Africans live under

1. South Africa has steadily tightened its laws to respond to gender‑based violence (GBV) while preserving fair‑trial rights:

   1. Domestic Violence Act No. 116 of 1998 (“DVA”) — the backbone statute for protection orders, now read with the Domestic Violence Amendment Act No. 14 of 2021, which broadened definitions, enabled easier applications (including after‑hours and electronically), and sharpened officials’ duties. It also confirms the court’s powers to issue an interim order with a warrant of arrest and to order seizure of weapons where appropriate.

   2. Protection from Harassment Act No. 17 of 2011 — a parallel route for people not in a domestic relationship (e.g., neighbours, co‑workers, online stalking), with the same interim‑then‑final order structure and a criminal offence for breaching the order.

   3. Criminal and Related Matters Amendment Act No. 12 of 2021 — in force since 5 August 2022, it re‑engineered bail and related procedures for GBV matters (details below).

   4. Criminal Law (Sexual Offences and Related Matters) Amendment Act No. 13 of 2021 — expanded offences (e.g., sexual intimidation) and tightened the National Register for Sex Offenders regime. 

   5. Prevention and Combating of Hate Crimes and Hate Speech Act No. 16 of 2023 -  in force since 14 May 2024, part of the broader equality framework that also protects people on grounds including sexual orientation and gender.

   6. Constitutional jurisprudence sits behind these statutes. In S v Baloyi (CCT29/99), the Constitutional Court affirmed the State’s duty to take domestic violence seriously and upheld robust remedies; in Carmichele v Minister of Safety and Security (CCT 48/00), it recognised delictual liability for police/prosecutorial omissions that unreasonably expose victims to repeat violence; and in K v Minister of Safety and Security (CCT/52/04), it held the State vicariously liable for rape by on‑duty police officers. 

Bail in GBV cases: what has changed—and how courts reason

2. The big shift:

   1. for many GBV‑linked offences, there is no more “station” (police) bail. Section 59 of the Criminal Procedure Act (CPA) was amended so that where an offence is against a person in a domestic relationship or involves breaches of DVA/Harassment protection orders, release may only be decided by a court. This closes a gap that once saw alleged abusers back home before a survivor could get to court. 
      

3. The onus at court:

   1. With Schedule 6 offences (e.g., certain aggravated crimes), the accused must show “exceptional circumstances” justifying release. 

   2. With Schedule 5 offences (serious but a tier lower), the accused must satisfy the court that the interests of justice permit release. 

   3. The 2021 amendment also added a new (c)‑category mirroring this test for domestic‑relationship offences and protection‑order breaches—again placing an onus on the accused. 

   4. The constitutionality of this shift has been challenged unsuccessfully, so in other words, it has been deemed compliant with our Constitution. 

4. Before deciding bail, the court must consider the complainant’s view about their safety and any pre‑trial services report; and if the prosecutor does not oppose bail in serious matters, they must put reasons on the record. These are now statutory imperatives, not optional niceties. 
   

5. Typical bail conditions in GBV matters include strict no‑contact, residence restrictions, reporting obligations, and firearm‑related directions, anchored in the Criminal Procedure Act No. 51 of 1977 (sections 60 and 62) and the DVA’s seizure powers. The court must always weigh liberty against the interests of justice, explicitly including the complainant’s safety. 
   

Hard truths: when allegations are weaponised

6. It is equally true that legal processes can be misused. 
   

7. False affidavits may constitute perjury or defeating/obstructing the course of justice (both criminal), and a person wrongfully hauled before court may sue for malicious prosecution in delict.. 
   

8. Our courts thus do have tools to deter and remedy bad‑faith complaints, but they will not equate an acquittal with a “false charge”. Expect a careful, evidence‑based inquiry focused on the intent and reasonableness of the accuser’s conduct.

Two practical checklists (Bookmark these for yourself or someone you’re helping.)

9. If you need protection from an abuser—today:

   1. Apply for a protection order at any Magistrates’ Court under the DVA (domestic relationships) or Protection from Harassment Act (non‑domestic). Interim orders may be granted ex parte (ie. without letting the guilty party knowing you have approached the court) and come with a warrant of arrest if breached. 

2. Tell the court about weapons. Courts can direct seizure of firearms or dangerous weapons linked to the abuse. 
   

3. If sexual violence is involved, obtain immediate healthcare, trauma support and evidence collection geared for prosecution.
   

4. If the accused is arrested, you are entitled to have your safety views considered at bail; ask the investigating officer/prosecutor to place them on record. 
   

5. Save messages, photos of injuries/damage, call logs, and witness details. They matter—both for the protection order return date and any criminal case.
   

6. In circumstances where you have been charged and you believe the charges against you are baseless:

   1. Obey any interim order to the letter. Do not contact the complainant or try to “explain” your side directly—breach is a crime and will harm you at bail. Use your lawyer to communicate.

   2. Bring corroboration (messages, location data, witnesses). Courts can discharge or narrow orders where facts don’t support them. 

   3. At bail:

      1. Demonstrate stable residence, employment, passport status, and commitments to non‑contact; tailor conditions (e.g., alternate accommodation) that protect the complainant. The onus may be yours depending on the charge.

   4. Afterwards:

      1. If proceedings collapse and the facts justify it, get advice on a malicious prosecution claim.

(This section is informational, not legal advice; always consult a practitioner for your specific facts.)

December & the “festive season” reality

11. Service providers and local authorities frequently report higher domestic‑violence call‑outs in December, driven by alcohol, financial stress, and proximity. Recent public data points echo this pattern. If it’s happening to you or a friend, you are not alone and help is available 24/7. 

A closing note

12. Justice must walk on two feet: 

    1. protection for those at risk; and 

    2. fairness for those accused. 
       

13. South African courts are increasingly explicit that bail is a safety question, not merely a scheduling one, and that misuse of these powerful tools can and will be sanctioned.
    

14. As the year winds down, if you are scared, injured, or just unsure what to do next, please reach out to someone who can help. You are not alone.