JOHANNESBURG – In a pivotal legal battle that could reshape South Africa’s sexual offences legislation, the Constitutional Court (ConCourt) is set to hear arguments on Thursday regarding the contentious issue of “believed consent” in rape cases.
This high-profile case arrives at the ConCourt following a landmark judgment by the Pretoria High Court earlier in 2025, which ruled that the long-standing defence of “believed consent”—where a rape-accused claims to have mistakenly believed the victim gave consent—can no longer be used in sexual assault trials.
The outcome of this hearing could lead to major constitutional and legal reforms that strengthen protections for survivors of sexual violence and clarify the legal standards surrounding consent.
Background: What Prompted the ConCourt Challenge?
The case has been brought to the ConCourt by The Embrace Project, a non-profit organisation advocating for survivors of gender-based violence. The group challenged the constitutionality of allowing subjective belief in consent as a defence in rape cases, arguing that it undermines victims’ rights and perpetuates impunity for perpetrators.
In its ruling earlier this year, the Pretoria High Court agreed with the applicants, finding that subjective belief in consent is inconsistent with the Constitution—particularly the rights to dignity, security, and freedom from violence.
The court ruled that only objective and affirmative consent should be recognised, setting a new legal precedent. However, before this change can be implemented nationwide, the ConCourt must confirm the constitutional invalidity of the existing provisions in South Africa’s Criminal Law (Sexual Offences and Related Matters) Amendment Act.
Under South African law, any declaration of constitutional invalidity by a lower court must be confirmed by the Constitutional Court (ConCourt) before it becomes binding. Thursday’s hearing, therefore, is not just a formality—it is crucial to determine whether the law as it currently stands fails to meet the constitutional standards of justice and equality.
Legal experts and activists say the case could radically alter the landscape of sexual offence trials, removing a major loophole that has often been used to avoid conviction in cases of rape and sexual assault.
Lee-Anne Germanos-Manuel, director of The Embrace Project, says the case represents a significant step toward creating a justice system that puts survivors first.
“This isn’t just about a single legal defence—it’s about shifting the entire framework of how the law understands and defines consent,” Germanos-Manuel explained. “If someone says ‘no’ or does not express affirmative consent, there should be no room for ambiguity or presumed permission.”
The group maintains that the current law enables misinterpretation and abuse, often to the detriment of survivors who may freeze, remain silent, or otherwise not physically resist due to fear or trauma.
Despite the High Court’s ruling, the Minister of Justice and Constitutional Development initially opposed the application brought by The Embrace Project, indicating concern over the broader implications of changing long-established legal principles.
Adding another layer to the proceedings, the Women’s Legal Centre has applied to appear before the ConCourt as a third amicus curiae (friend of the court). Surprisingly, the Centre is arguing against the confirmation of the constitutional invalidity and opposes changing the current law.
This divergence among organisations advocating for women’s rights reflects the complexity of the issue—balancing legal certainty, the rights of the accused, and the urgent need to better protect survivors.
If the ConCourt confirms the High Court’s decision, South Africa could become a global leader in defining consent strictly as an affirmative, unambiguous, and voluntary agreement—bringing its laws in line with international human rights standards.
On the other hand, a decision not to confirm the invalidity could maintain the status quo, allowing rape-accused individuals to continue using subjective belief in consent as a legal defence—potentially discouraging survivors from reporting sexual violence.
Legal scholars say the ruling will also affect legal education, police training, prosecution protocols, and judicial interpretation in sexual offence cases.
As the nation watches closely, Thursday’s ConCourt hearing represents more than just a legal debate—it is a test of South Africa’s commitment to gender justice and the protection of vulnerable individuals under the Constitution.
The ruling, expected in the coming months, will not only influence future court cases but could also inspire legislative amendments, widespread advocacy campaigns, and renewed public discourse around consent, sexual violence, and survivor rights.
For now, all eyes are on the ConCourt, where a defining moment for South African justice is unfolding.
Source- EWN
