Physical violence: crime or cultural protégé?

South Africa has a dark history with regards to the violation of human rights. Sloth-Nielsen "Child Justice" in Boezaart (ed) Child Law in South Africa (2017) 682 states that racialised justice was at the order of the day. Almost 30 years since the dawn of democracy, not enough has changed and the country is currently plagued by a scourge of gender-based violence. The devastating impact of sexual violence on victims is well documented. In Maila v The State [2023] ZASCA 3 the court stated that "sexual violence victims often experience a profound sense of shame, stigma and violation". As recent as 5 April 2022, the Constitutional Court condemned "the horrific reality that this country has for far too long been, and continues to be, plagued by a scourge of gender-based violence to a degree that few countries in the world can compare" (AK v Minister of Police 2022 (11) BCLR 1307 (CC) 1312. See also Maila v The State 11 and Khambule v S [2023] ZAKZPHC 35.) In Petersen v The State [2023] ZASCA 26, a 9-year-old child was violently and brutally raped. After raping her, the appellant had cut the child's throat with a piece of glass. She had, however, already died as result of asphyxiation due to strangulation by the appellant. The second and third counts of rape and murder were committed while he was out on bail for the first offence. In Tshabalala v S; Ntuli v S 2020 (5) SA 1 (CC) 17 the same Court held that "[h]ardly a day passes without any incident of gender-based violence being reported. This scourge has reached alarming proportions. It is sad and a bad reflection of our society that 25 years into our constitutional democracy, underpinned by a Bill of Rights, which places a premium on the right to equality and the right to human dignity, we are still grappling with what is a scourge in our nation". Mkhize and Vilakazi "Rethinking gender and conduits of control: A feminist review" 2021 SAJHR 1 state that "the war on women, their bodies and their right to self-determination persists, irrespective of the Constitution" and that many of South Africa's contemporary social institutions, including culture, normalise forms of gendered violence and the exploitation of women's lives and bodies through cultural practices like ukuthwala. For far too long has physical violence, and gender- based violence in particular, escaped the full might of the penal machinery under the cloak of culture.