Constitutional Court
South Africa’s Constitutional Court is set to hear arguments today, 25 September 2025, in a pivotal case that could reshape the country’s sexual offences laws, particularly how consent is handled in rape prosecutions. The matter stems from a groundbreaking Pretoria High Court ruling earlier this year, which struck down the use of “believed consent” as a valid defence for those accused of rape. Led by non-profit organisation The Embrace Project, the applicants argue that current legislation allows perpetrators to escape accountability by claiming a subjective belief in consent, even if it was not genuinely given. This hearing, taking place at the Constitutional Court in Johannesburg, has drawn widespread attention from legal experts, activists, and women’s rights groups, highlighting ongoing debates about gender-based violence in a nation grappling with high rates of sexual assault.
The case, formally known as The Embrace Project NPC and Others v Minister of Justice and Correctional Services and Others, challenges key sections of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (SORMA). If confirmed by the apex court, the ruling could mandate a shift towards an objective standard of consent, requiring accused individuals to demonstrate reasonable steps taken to confirm consent. This could lead to higher conviction rates in rape cases, where South Africa’s statistics remain alarmingly low—often below 10%—despite thousands of reported incidents annually. As Heritage Month concludes, the timing underscores the cultural and societal imperative to protect vulnerable groups and address historical inequalities in the justice system.
The Pretoria High Court Ruling: A Turning Point in Consent Definitions
The journey to the Constitutional Court began in the Gauteng Division of the High Court in Pretoria, where Judge Selby Baqwa delivered a landmark judgment on 30 September 2024. The Embrace Project, alongside an individual rape survivor and supported by various amici curiae, challenged sections 3, 4, 5, 6, 7, 8, 9, and 11A of SORMA, read with section 1(2). These provisions define sexual offences like rape, compelled rape, sexual assault, and others, but include a clause allowing a defence based on the accused’s honest but mistaken belief in consent.
Baqwa ruled that this subjective belief defence is unconstitutional, as it violates sections 9 (equality), 10 (human dignity), and 12 (freedom and security of the person) of the Constitution. He argued that it places an undue burden on victims, often requiring them to prove lack of consent in traumatic circumstances, and fails to align with evolving societal norms on affirmative consent. The judge declared the impugned sections invalid to the extent they permit this defence, suspending the invalidity for 24 months to allow Parliament to amend the law. This suspension gives lawmakers time to introduce reforms, potentially incorporating requirements for explicit, ongoing consent and consideration of power imbalances in relationships.
The ruling was hailed by gender activists as a step towards victim-centred justice. For instance, it addresses scenarios where intoxication, coercion, or unequal power dynamics might invalidate consent, even if the accused claims to have believed otherwise. Statistics from the South African Medical Research Council indicate that one in three women in South Africa has experienced sexual violence, yet convictions lag due to evidentiary challenges. Baqwa’s decision draws on international precedents, such as Canada’s affirmative consent model and the UK’s emphasis on reasonable belief, adapting them to South Africa’s context of pervasive gender inequality.
The Embrace Project’s Push for Change
At the heart of the application is The Embrace Project, a non-profit founded in 2017 to combat gender-based violence through education, advocacy, and legal reform. The organisation argues that the current law perpetuates rape myths, allowing accused individuals to rely on a subjective belief in consent without needing to show objective reasonableness. Director Lee-Anne Germanos-Manuel explained that this defence has contributed to low conviction rates, as it shifts focus from the victim’s experience to the perpetrator’s mindset.
“The ruling means rape suspects won’t be able to rely on a subjective belief that consent was given by a complainant,” Germanos-Manuel stated. She highlighted how the law, as it stands, fails survivors by not requiring accused persons to take active steps to ascertain consent, such as verbal confirmation or reading non-verbal cues in context. The Embrace Project’s challenge was initially opposed by the Minister of Justice and Constitutional Development, who argued that existing provisions adequately balance rights. However, the High Court’s decision prompted an appeal process, leading to today’s Constitutional Court hearing for confirmation of the invalidity order, as required under section 172(2) of the Constitution.
Germanos-Manuel also noted the evolving dynamics in the case, with new intervenors joining the fray. “The Women’s Legal Centre has now, for the first time in these proceedings, applied to appear before the Constitutional Court as the third amicus curiae, and is arguing against the declaration of constitutional invalidity, and against the need for a change in the law at all.” This position surprised many, as the Women’s Legal Centre (WLC) is renowned for advocating women’s rights. The WLC contends that the current framework, when properly applied, already incorporates objective elements through judicial interpretation, and a wholesale change could unintendedly complicate prosecutions.
Amici Curiae: Diverse Voices in the Debate
The Constitutional Court has admitted several amici curiae, enriching the arguments with multifaceted perspectives. The Centre for Applied Legal Studies (CALS) at the University of the Witwatersrand supports The Embrace Project, challenging the definitions to ensure they align with constitutional rights. CALS argues that the subjective belief defence undermines equality by disproportionately affecting women and marginalised groups, often in cases involving alcohol, drugs, or domestic relationships.
The Centre for Human Rights (CHR) at the University of Pretoria and the Psychological Society of South Africa (PsySSA) were admitted as amici in February 2025. They emphasise psychological insights into trauma and consent, drawing on research showing how survivors’ responses—like freezing or dissociation—can be misinterpreted. CHR and PsySSA advocate for a trauma-informed approach, where consent must be assessed objectively, considering the totality of circumstances.
In contrast, the WLC’s intervention opposes the invalidity declaration, asserting that courts have already evolved the law through precedents like the 2015 Supreme Court of Appeal case in S v Chapman, which introduced reasonableness into belief assessments. They worry that altering the Act could lead to legal uncertainty and resource strains on an overburdened justice system.
Other potential intervenors include the Commission for Gender Equality and Sonke Gender Justice, which have historically pushed for stronger protections against sexual violence.
Constitutional court
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