Embrace Project NPC and Others v Minister of Justice and Correctional Services and Others (04856/22) [2024] ZAGPPHC 961; 2025 (1) SACR 36 (GP) (30 September 2024)

Embrace Project NPC and Others v Minister of Justice and Correctional Services and Others (04856/22) [2024] ZAGPPHC 961; 2025 (1) SACR 36 (GP) (30 September 2024)

The court found that sections 3, 4, 5, 6, 7, 8, 9 and 11A read with section 1(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 are unconstitutional to the extent that they permit a defence of subjective belief in consent, even if unreasonable. This legal position unjustifiably infringes the constitutional rights of victims—primarily women and children—to equality, dignity, privacy, and freedom and security of the person. The court held that the Act must require that an accused take objectively reasonable steps to ascertain consent, aligning South African law with international human rights obligations and comparative jurisprudence. The declaration of...

Citation
[2024] ZAGPPHC 961
Parties
Applicant: Embrace Project NPC; Applicant: I[...] H[...]; Applicant: Centre for Applied Legal Studies; Respondent: Minister of Justice and Correctional Services; Respondent: Minister in the Presidency for Women, Youth and Persons with Disabilities; Respondent: President of the Republic of South Africa; Appellant: Centre for Human Rights; Appellant: Psychological Society of South Africa
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
30 September 2024
Case Number
04856/22
Procedural Posture
Constitutional Application / First Instance Judgment
Outcome
Sections 3, 4, 5, 6, 7, 8, 9 read with section 1(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 are declared unconstitutional, invalid, and inconsistent with the Constitution to the extent that they permit a defence of subjective belief in consent without objectively reasonable...
Judges
Baqwa
Legal Topics
Sexual Offences Amendment Act, Consent in Sexual Offences, Bill of Rights Limitation, Gender Based Violence, Objective Vs Subjective Fault, International Human Rights Obligations
Constitutional Law Criminal Law Civil Procedure Sexual Offences Amendment Act Consent in Sexual Offences Bill of Rights Limitation Gender Based Violence Objective Vs Subjective Fault +1 more

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Parties

Embrace Project NPC

Applicant

I[...] H[...]

Applicant

Centre for Applied Legal Studies

Applicant

Minister of Justice and Correctional Services

Respondent

Minister in the Presidency for Women, Youth and Persons with Disabilities

Respondent

President of the Republic of South Africa

Respondent

Centre for Human Rights

Appellant

Psychological Society of South Africa

Appellant

Procedural Posture

Constitutional Application / First Instance Judgment

Legal Issues

  1. 1 Whether sections 3, 4, 5, 6, 7, 8, 9 and 11A read with section 1(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 are unconstitutional for permitting a defence of subjective belief in consent, even if unreasonable.
  2. 2 Whether the limitation of victims' constitutional rights by the Act is reasonable and justifiable under section 36 of the Constitution.
  3. 3 Whether the retention of consent as a definitional element in sexual offences is constitutionally valid.

Ratio Decidendi

The court found that sections 3, 4, 5, 6, 7, 8, 9 and 11A read with section 1(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 are unconstitutional to the extent that they permit a defence of subjective belief in consent, even if unreasonable. This legal position unjustifiably infringes the constitutional rights of victims—primarily women and children—to equality, dignity, privacy, and freedom and security of the person. The court held that the Act must require that an accused take objectively reasonable steps to ascertain consent, aligning South African law with international human rights obligations and comparative jurisprudence. The declaration of...

Court Disposition

Sections 3, 4, 5, 6, 7, 8, 9 read with section 1(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 are declared unconstitutional, invalid, and inconsistent with the Constitution to the extent that they permit a defence of subjective belief in consent without objectively reasonable...

Orders

  • Declaration of invalidity of the impugned sections is suspended for 18 months to allow Parliament to remedy the constitutional defects.
  • During the suspension period, the following words are read into the Act: '56(1A) Whenever an accused person is charged with an offence under section 3, 4, 5, 6, 7, 8, 9 or 11A, it is not a valid defence for that accused person to rely on a subjective belief that the complainant was consenting to the conduct in...