ConCourt reserves judgment in challenge to Sexual Offences Act

Mapaballo Borotho

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The Constitutional Court has reserved judgment in a case brought by the Embrace Project seeking to amend parts of the Sexual Offences Act.
The NGO argues that the current law allows perpetrators to claim they believed there was consent, even when that belief is unreasonable.
If upheld, the ruling could tighten consent laws and offer stronger protections for survivors of sexual violence.

The Constitutional Court has reserved judgment in a landmark case brought by the Embrace Project, an anti-gender-based violence organisation challenging parts of South Africa’s Sexual Offences Act.

The case, heard on Thursday, forms part of a broader effort to reform how the law treats consent in sexual offence cases.

Embrace Project, alongside a rape survivor, took the Minister of Justice to court in 2021, arguing that the Act allows perpetrators to claim they believed there was consent even when that belief was not reasonable.

The organisation contends that this loophole enables offenders to avoid accountability and discourages them from taking steps to ensure consent.

Director Lee-Anne Germanos highlighted several instances where justice was denied because courts accepted claims that a victim’s silence signified consent.

Last year, the Pretoria High Court ruled parts of the Act unconstitutional. If the Constitutional Court upholds that decision, it could strengthen protections for survivors and make it harder for perpetrators to escape liability.