The Embrace Project NPC and Another v Minister of Justice and Correctional Services and Others

Court: High Court of South Africa, Gauteng Division Pretoria

Date of hearing: TBC

Status: Ongoing

Last updated: 19 April 2022

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Case overview: The Embrace Project, a non-profit organisation which aims to combat gender-based violence, and a rape survivor have filed an application challenging the constitutionality of the Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007 (“Act”) and its definition of consent. The Minister of Justice and Correctional Services, the President, and the Minister of Women, Youth, and Persons with Disabilities are cited as the Respondents. The Applicants are represented by Power & Associates.

Following S v Coko, a recent case highlighting the challenges with the current definition of consent, and cognisant of the harrowing lived experiences of countless victims and survivors in South Africa, this matter challenges the prevailing norm that an unqualified subjective belief in consent means that a victim or survivor of a sexual offence cannot secure justice for “one of the most heinous affronts to their dignity and bodily and psychological integrity.”

In terms of the Act, a perpetrator of rape and/or sexual violence can be acquitted if they subjectively believed there was consent – even if that belief was unreasonable. This subjective threshold places an almost insurmountable barrier to the conviction of a perpetrator who has been found to have objectively committed an act of rape or sexual violence without the consent of the victim or survivor, but where it could not be proved that the perpetrator subjectively intended to rape or sexually assault the victim or survivor.

The Applicants argue that this position is outdated and unconstitutional, and violates the constitutional rights of victims and survivors to equality, dignity, privacy, and freedom and security of the person. The Applicants further argue that this is contrary to the South African government’s duty to prevent and punish sexual violence, and it is inconsistent with international human rights law and legal developments in comparable constitutional democracies across the world. Importantly, the Applicants submit that the Act perpetuates disrespect and disregard for women’s sexual autonomy.

As a result, the Applicants seek a declaration of constitutional invalidity and propose an interim reading-in into the Act while Parliament remedies the legislative defects (within a 12-month period).

Advocates Nasreen Rajab-Budlender SC, Ben Winks, and Lerato Phasha are on brief in this matter.

Court Papers:

• Notice of Motion and Founding Affidavit (15 November 2022)
• Rule 16A Notice (16 November 2022)
• Notice of Intention to Oppose – First Respondent (1 December 2022)
• Application to Intervene by the Centre for Applied Legal Studies (7 February 2023)
• First Respondent’s Answering Affidavit (16 March 2023)
• First Respondent’s Supplementary Affidavit (19 April 2023)
• Applicants’ Replying Affidavit (9 May 2023)

• Embrace Project Press Release (25 November 2022)
• Embrace Project Press Release (22 March 2023)