The Embrace Project and Inge Holztrager's confirmation application before the Constitutional Court
On 30 September 2024, the Pretoria High Court found in favour of The Embrace Project and Inge Holzstrager's application to declare certain provisions in the Sexual Offences Act unconstitutional and grant the relief sought by both applicants, which is to temporarily require, for the first time in South Africa's history, that persons accused of certain sexual offences take objectively reasonable steps to ascertain that the victim consented to the sexual conduct in question.
On 21 October 2024, The Embrace Project and Inge Holztrager filed an application before the Constitutional Court requesting that it confirm the order of the High Court, and turn the temporary remedy into law while the Legislature fixed the provisions in the Sexual Offences Act that it confirmed to be unconstitutional.
Before the Constitutional Court, The Embrace Project and Inge Holztrager make the same arguments as they did before the High Court. To review a summary of those arguments, please scroll down towards the end of this page.
The Case for the Amendment of the Sexual Offences Act before the Constitutional Court
The Embrace Project and Inge Holztrager (the 1st & 2nd Applicants in the confirmation application before the Constitutional Court, and the 1st & 2nd Respondents in CALS’ appeal before the Constitutional Court
CALS (the 3rd Applicant in The Embrace Project’s confirmation application before the Constitutional Court, and the Applicant in CALS’ appeal before the Constitutional Court)
Minister of Justice and Constitutional Development (the 1st Respondent in The Embrace Project’s confirmation application before the Constitutional Court, and the 3rd Respondents in CALS’ appeal before the Constitutional Court)
Centre for Human Rights and the Psychological Society of South Africa (1st and 2nd Amicus)
Women’s Legal Centre (3rd Amicus)
Centre for Applied Legal Studies' (CALS) appeal before the Constitutional Court
On 30 September 2024, in its judgment, the High Court rejected the relief sought by CALS in respect of the provisions of the Sexual Offences Act which the High Court declared unconstitutional.
On 21 October 2024, CALS filed an appeal against the High Court judgment before the Constitutional Court. In its appeal, CALS argues the following:
That there was no meaningful consideration of CALS’ application and its arguments by the High Court, which is that a coercion-based sexual offences model should be applied by South Africa, as opposed to the consent-based sexual offences model currently being applied.
That the High Court did not consider the evidence of the legal expert that CALS put forward.
That the High Court made a mistake when deciding that it would be breaching the doctrine of separation of powers were it to have granted CALS’ remedy, because courts have an obligation to prevent a violation of the Constitution.
Before the Constitutional Court, CALS argues that a coercion-based sexual offences model aims to define sexual violence for what it is – a violent crime – as opposed to sex without consent, and that retaining consent as a definitional element of sexual offences amounts to unfair gender discrimination in terms of section 9(3) of the Constitution (right to equality). This, CALS argues, is because only gendered offences, which predominantly affect women and children, include consent as part of the definition of the crime.
The Embrace Project and Inge Holztrager are opposing CALS' appeal before the Constitutional Court on the following grounds:
The relief sought by CALS, which would require the accused to raise the presence of consent as a defence, would not change the law’s application of a subjective test when determining whether or not the accused’s defence, regarding the presence of consent, was ‘reasonably possibly true’. Victims and survivors would therefore be left in the same position as they are now where an accused person can get away with an unreasonable mistaken belief in consent.
According to the United Nations, a consent-based sexual offences model is considered to be international best practice. We argue that no evidence was put forward by CALS to show that conviction rates in a coercion-based model are higher than those in a consent-based model.
CALS did not do enough to explain why the Court should breach the doctrine of separation of powers by imposing a different sexual offences model to the one chosen by the Legislature, which is a high watermark, when the relief sought by The Embrace Project and Inge Holztrager could remedy the constitutional invalidity without breaching the separation of power.
It is not clear whether the evidence of the legal expert put forward by CALS was admitted by the High Court because, in legal proceedings, the court is considered to be the only expert on the law.
President, Minister of Justice and Constitutional Development and Minister of Women, Youth and Persons with Disabilities
The Minister of Justice and Constitutional Development opposed The Embrace Project's application before the High Court with the President and Minister of Women, Youth and Persons with Disabilities having elected not to participate in the proceedings.
On 10 September 2025, exactly 7 months after the Constitutional Court deadline and 2 weeks before the hearing date, the President, Minister of Justice and Constitutional Development and Minister of Women, Youth and Persons with Disabilities ("government respondents") filed their answering affidavit to our application before the Constitutional Court. In their answering affidavit, the government respondents
Decided not to oppose either The Embrace Project's application for confirmation or CALS' appeal. They will abide by the Court's ruling.
Reiterate that legislation alone will not address the scourge of GBVF in South Africa.
The government respondents list all of the government-led interventions against GBVF while admitting that the scourge of GBVF remains unacceptably high despite these interventions.
Recognise, as was pointed out in The Embrace Project’s application before the High Court, that factors which contribute to the scourge of GBVF in South Africa are the country’s violent past (apartheid and colonialism), socio-economic factors, cultural practices, the patriarchy, and religious beliefs. All of which have created an environment where violence against women and children is socially acceptable in South Africa.
Argue that if an accused person is obliged to take “objectively reasonable steps to ascertain that the complainant consented to sexual conduct” then the accused’s right to remain silent would be infringed as they would be compelled to give evidence to that effect.
Request that the legislature establishes guidelines on what a reasonable belief in consent is if the Constitutional Court confirms The Embrace Project application.
Request that they be given 36 months (instead of the 18 months ordered by the High Court) to amend the law if the Constitutional Court confirms it unconstitutionality.
Centre for Human Rights and the Psychological Society of South Africa's amicus application before the Constitutional Court
The Centre for Human Rights and the Psychological Society of South Africa were admitted as amici curiae (friends of the court) before the High Court, which found their expert submissions on the common behavioural responses of victims during a sexual assault to be invaluable.
Their submissions remain the same before the Constitutional Court. To review a summary of these submissions, please scroll down towards the end of this page.
Women’s Legal Centre's amicus application before the Constitutional Court
The Women's Legal Centre ("WLC") submitted an application to be admitted as the third amicus curiae in this litigation for the first time, before the Constitution Court, on 17 February 2025. In its submissions before the Constitutional Court, the Women's Legal Centre raises the following arguments:
The Embrace Project and Inge Holztrager’s request for a declaration of constitutional invalidity for various sexual offences in the Sexual Offences Act is not necessary.
The interim relief sought by The Embrace Project and Inge Holztrager, which would require that an accused person takes reasonable steps to ascertain whether consent was given, is not appropriate because its formulation lends itself to unintended consequences and abuse.
The WLC cannot conceive of a realistic scenario in which an accused person is found to have laboured under an unreasonable belief that consent had been given, which wouldn’t amount to a guilty verdict based on the foresight that such consent had not been given (dolus eventualis).
The Sexual Offences Act defines consent, in the context of a sexual act, as “voluntary or uncoerced agreement”. Therefore, consent requires an outward manifestation illustrating such agreement. Without an outward manifestation of consent the court must conclude that the accused person could have foreseen the possibility that consent had not been given.
The Embrace Project and Inge Holztrager’s request to confirm the introduction of a reasonableness or objective test for sexual offences would lower the standard of proof, with the effect of aiming to overcome the rules of evidence and onus of proof in South Africa’s criminal justice system.
Dolus eventualis is a partly objective test and a partly subjective test, meaning that the court can draw legitimate inferences from the objective facts of a case to determine the accused person’s subjective state of mind. Therefore, it is not correct to say that a belief, no matter how unreasonable, is sufficient to exclude intention.
The Regional Magistrate in Inge Holztrager’s rape case, S v Amos, incorrectly interpreted and applied the existing law as it pertained to the crime of rape.
Confirming the declarations of constitutional invalidity, in effect, tells Ms Holzträger that the Regional Magistrate was justified in acquitting the man who raped her. That is the wrong message.
The Supreme Court of Appeal in S v Coko explained how dolus eventualis should correctly be applied in the crime of rape. This should have been sufficient had the High Court in this case considered it.
An article by a Canadian academic author and professor, Dr Lucinda Vandervort, was cited to explain the pitfalls experienced by the Canadian criminal justice system when applying the “reasonable steps” requirement that The Embrace Project and Inge Holztrager seek to confirm. She was cited as authority for the fact that debates over what was considered “reasonable” resulted in the same pitfalls that The Embrace Project and Inge Holztrager were looking to overcome.
Including a “reasonable steps” requirement will inevitably be weaponised (abused) by perpetrators of sexual offence to make retaliatory criminal complaints against their victims, and will place additional evidentiary burdens on complainants and the State to prove what “reasonable steps” are and that they were not taken.
The additional requirement to take “reasonable steps” might lead would-be perpetrators to make repeated and incessant enquiries after their victim’s consent, until the victim succumbs and submits to the pressure.
In response to these submissions by the Women's Legal Centre, The Embrace Project and Inge Holzstrager submitted the following to the Constitutional Court:
WLC’s argument on dolus eventualis mirrors that of the Minister of Justice’s argument, which was rejected by the High Court.
Before the Constitutional Court, the Minister of Justice has chosen not to participate, although it opposed the application in the High Court. The WLC, as an amicus curia (friend of the court), is required to draw the attention of the court to relevant matters of law and fact to which attention would not otherwise be drawn. Yet in this instance, the WLC is stepping into the shoes of the Minister of Justice, and opposing the confirmation application before the Constitutional Court.
Dolus eventualis is not a silver bullet, because it does not address a scenario where, like in the case of S v Amos, the survivor, Inge Holztrager, because of her peri-traumatic response to the assault, was unable to outwardly signify her opposition to the sexual offence. Meaning that the objective circumstances of the case did not show, beyond reasonable doubt, that the accused person must have foreseen the risk that consent was lacking. Because the standard for dolus eventualis is actual foresight and not reasonable foreseeability.
The SCA's decision in S v Coko was fully ventilated in the hearing of this matter before the High Court
WLC did not address the rights violations committed by rape laws in cases like S v Amos, where the Minister of Justice even conceded to the violation and attempted to justify the limitation of the rights violated in S v Amos.
WLC offered no empirical evidence to suggest that the reform sought by The Embrace Project and Inge Holztrager will impose undue evidentiary burdens, enable retaliatory claims against survivors, or encourage coercively persistent actions by offenders.
WLC’s reliance on a single Canadian academic critique was inadequate, and the Canadian Supreme Court itself directly engaged with the academic’s critique, which resulted in the Court providing clarity and guidance on how the “reasonable steps” requirement should be applied.
The notion of reasonableness is already deeply embedded and extensively applied in South African law.
The WLC’s intervention is of limited assistance to the Constitutional Court and its opposition should not impede the confirmation of both the declaratory relief as well as the interim reading-in.
The Pretoria High Court handed down judgement on 30 September 2024 - and we won our Constitutional Challenge!
On 30 September 2024, the Pretoria High Court handed down judgment declaring certain provisions in the Sexual Offence Act unconstitutional for failing to protect GBVF victims against legal bias in favour of perpetrators. Pending confirmation by the Constitutional Court, the law will change requiring that an accused person take "objectively reasonable steps to ascertain that the complainant consented to sexual conduct". The subjective test for criminal intent has been declared unconstitutional and is to be replaced by an objective test.
Judge Baqwa, in his judgment stated the following:
"By enabling a defence of unreasonable belief in consent, the [Sexual Offences] Act violates the rights of victims and survivors to equality, dignity, bodily and psychological integrity, and freedom and security of the person which includes the right to be free from all forms of violence and the right not to be treated in a cruel, inhumane or degrading way. "
The Judge made the following order:
“Sections 3,4,5,6,7,8,9 [and 11A] read with section 1(2) of the Criminal Law (Sexual Offences and Related Matters ) Act 32 of 2007 are declared unconstitutional, invalid and inconsistent with the Constitution to the extent that these provisions do not criminalise sexual violence where the perpetrator wrongly and unreasonably believed that the complainant was consenting to the conduct in question, alternatively, to the extent that the provisions permit a defence against a charge of sexual violence where there is no reasonable objective believe in consent.”
HOW IT ALL STARTED
HOW IT ALL STARTED
Constitutionality of Rape and Consent Definitions
In Sexual Offences Act Legally Challenged
A ground breaking constitutional challenge has been launched out of the Pretoria High Court, by The Embrace Project, against the problematic definitions of consent and rape in the Sexual Offences Act, as recently amended. The Minister of Justice and Correctional Services, the President and the Minister of Women, Youths and Persons with Disabilities are cited as respondents.
The issues raised against the Act in this application were first brought to the attention of the President in October 2021, prior to him signing the recent amendments to the Act into law. The Embrace Project, which had participated in the legislative process of the "GBV Bills" in 2020, wrote to the President informing him that a rape survivor, the second applicant in this litigation, had approached it in August 2021 and highlighted the issue of the application of intent in the definition of rape. This was further amplified in the controversial Coko v S judgment on appeal.
As the law currently stands, it is insufficient to prove that an accused person committed an act of sexual penetration without the complainant's consent. It must further be proved that, in the accused's subjective state of mind, he/she/they intended to rape the complainant regardless of the complainant not having consented to the sexual penetration. A subjective test is applied in South African law when it comes to a charge of rape. This test is not only regressive but has proven to be an almost insurmountable barrier to the conviction of accused persons who have been found to have committed acts of sexual penetration without the consent of the complainants (objectively), where the prosecution have been unable to prove that the accused persons subjectively intended to rape the complainants.
The Embrace Project, in both its 2021 letter to the President and its current application, points out that this not only explains the shocking conviction rate of rape in a country with the highest levels of GBVF in the world, but is a legislative endorsement and entrenchment of patriarchal beliefs and male sexual entitlement when a defence to rape may be based on an accused person's subjective sexist beliefs. Most perversely, given the law as it stands, the less progressive an accused person's views are about consent, the more likely he/she/they is/are to be acquitted of rape.
The President not only failed to respond to The Embrace Project's 2021 letter, but signed the Amendment Bill into law in January 2022 with full knowledge of the problematic provisions. It is for that reason that The Embrace Project, with the assistance of its legal team, Power Singh Inc, Advocates Azhar Bham SC, Nasreen Rajab-Budlender SC, Ben Winks and Lerato Phasha, have launched this legal challenge.
It must be noted that had it not been for the bravery of the second applicant, a GBVF survivor, this application - and the effect of its expected outcome - may have never seen the light of day.
Department of Justice’s Answering Affidavit
On the 16 March 2023 The Embrace Project received a response from the Department of Justice, in the form of an answering affidavit. This is in response to our Constitutional Challenge on the definitions of rape and consent in the Sexual Offences Act (Read the full details of our Constitutional Challenge below). The answering affidavit can be viewed below:
Read a summary on the Heads of Argument filed in the matter, or read the full Heads of Argument by clicking on the links:
The Embrace Project and IH's Heads of Argument in the High Court
Our application concerns a constitutional challenge to the Sexual Offences Act, specifically the provisions dealing with sexual offences for which the absence of consent is a main element, most prominently rape. The salient points of our argument are as follows:
As the law presently stands, an accused person can avoid conviction where there is reasonable doubt that he wrongly believed that the complainant consented to a sexual act, even if that belief was unreasonable.
A subjective test is currently used by the courts when determining whether there was intent on the part of the accused. Therefore, the less progressive the accused’s views are about consent, the more likely he is to be acquitted.
We argue that the Act is outdated, unconstitutional, and unjustifiable, as it fails to ensure adequate respect and protection of the constitutional rights of survivors, victims and potential targets of sexual violence, to equality (section 9), dignity (section 10), privacy (section 14), bodily and psychological integrity (section 12(2)), and freedom and security of the person (section 12(1)).
We are asking that the Court declare certain provisions of the Sexual Offences Act unconstitutional, and to declare it an invalid defence to rely on a subjective belief that the complainant was consenting to the sexual conduct in question, unless the accused took all reasonable steps to ascertain that consent.
In response to some of the arguments raised by the Minister of Justice in opposition to our application, we argue the following:
The application of dolus eventualis, which establishes the foreseeability of a crime, is not a solution as that too requires the application of a subjective test, and not an objective or reasonableness test.
The Minister suggests that changing the test for intention from those subjectively held by the accused to an objective existence of consent reverses the burden of proof onto the accused, thereby affecting his fair trial rights. However, the accused would remain entitled to raise the defence of consent but would simply be required to do so reasonably where all objective circumstances are taken into account.
Minister of Justice's Heads of Argument in the High Court
The Minister of Justice is the only respondent, out of the three government officials cited in the application, that has responded, and is opposing our application on the following grounds:
The Minister acknowledges that rape infringes on the rights to equality, dignity, privacy, bodily and psychological integrity, and freedom and security of the person, but says that the application of the subjective test in our law does not limit or infringe upon these rights, and that, if it does, it is reasonable or justifiable.
The Minister argues that it is not possible for rape myths and stereotypes to be entrenched in our legal system as the Court is required to interpret the law, and its application of the subjective test, in line with the Constitution.
The Minister contends that the foreign jurisdictions which have adopted the objective or reasonableness test for intent are dissimilar to South Africa, and are therefore not comparable, because they are homogenous societies whereas we are a heterogeneous society.
The Minister argues that applying an objective or reasonableness test, when determining the accused’s intention, reverses the burden of proof on to the accused, and reduces the burden of proof from beyond a reasonable doubt to negligence, which unjustifiably infringes on the accused’s fair trial rights.
Some interesting statements and points made by the Minister of Justice:
The Minister initially stated under oath that this litigation was driven by The Embrace Project’s “ego towards men” and that “[we] are using [our] emotions to persuade the Court to declare unconstitutional an Act which is in line with the Constitution”.
The Minister later apologised for his misogynistic statements made on oath, and listed socio-economic circumstances, culture, patriarchy and religion as factors contributing to the scourge of GBVF.
CALS' Heads of Argument in the High Court
The Centre for Applied Legal Studied applied to intervene in our application as a third applicant, and is asking the court for the following:
To remove the requirement of consent as an element of sexual offences, both in terms of common law as well as in terms of the Sexual Offences Act. In other words, the relief sought by CALS asks the court to remove the need to prove an absence of consent when proving that a sexual offence was committed. CALS is aiming to have consent reassigned to a justification rather than a definitional element.
The retrospective criminalisation of conduct which was not criminalised before the court’s order. In other words, for cases that have been tried already, or are currently being tried, those should then be retried based on this new relief.
In their application CALS called out the Minister's response to The Embrace Project's application, calling it reprehensible, unprofessional and sexist.
The Minister opposes the relief sought by CALS on the basis that the commission of sexual conduct in and of itself is not a crime, but that the perversion of it – its commission without the consent of the other person – is. The Minister suggests that CALS' requested relief would make all sexual conduct prima facie (on the face of it) a crime unless it can be proven that consent was given.
The Embrace Project welcomes the intervention application set out by CALS.
Amicus Curiae's Heads of Argument in the High Court
The Centre for Human Rights and the Psycological Society of South Africa have joined the application as 'friends of the Court', providing the court with their expert views. Their submission outlines three key findings in favour of a change in the law:
Victims and survivors may experience various peri-traumatic responses to sexual assault.
Peri-traumatic responses to rape are hard-wired and neurobiological which can incapacitate victims and survivors. This can leave them unable to articulate verbal or behavioural responses during a rape. Research has found that compared to victims of crimes such as robbery and assault, it has been found that a higher percentage of rape survivors employed non-physically active behaviour responses.
The defence of mistaken belief (when consent is believed to have been given, even if it would be unreasonable for an accused person to have reached this conclusion) has evolved to replace the "resistance requirement" which has been removed from our law. The use of mistaken belief is more likely to be used where victims and survivors have exhibited more "passive" peri-traumatic responses to rape.
The amici argue that if we are to continue with South Africa's current stance in our law, we would ignore the well-established psychological findings on peri-traumatic responses. There is a pertinent need to consider and incorporate peri-traumatic responses and the resultant effect on ability to communicate consent or non-consent, even where the defence of mistaken belief is raised in our law.