Embrace Project NPC and Others v Minister of Justice and Correctional Services and Others (04856/22) [2024] ZAGPPHC 967 (30 September 2024)

Constitutional Law – Bill of Rights – limitation of rights – whether the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 is inconsistent with the Constitution of the Republic of South Africa, 1996 – sections 3, 4, 5, 6, 7, 8, and 9, read with section 1(2) of the Act declared inconsistent with the Constitution.

Criminal Law – Sexual offences – consent – subjective belief – whether the Act violates the rights of victims and survivors of sexual offences, to equality, dignity, privacy, 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 – sections 3, 4, 5, 6, 7, 8, and 9, read with section 1(2) of the Act declared inconsistent with the Constitution.

This case, Embrace Project NPC and Others v Minister of Justice and Correctional Services and Others, concerns the constitutional validity of South Africa’s Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. The applicants, a group of NGOs and individuals including a rape survivor, argue that the Act’s current definition of consent as a defence against a sexual assault charge infringes the rights of victims, particularly women, to equality, dignity, privacy, bodily integrity, and freedom from violence. The applicants contend that the Act allows perpetrators to rely on a subjective belief in consent, even if that belief is unreasonable, and that this effectively perpetuates rape myths and victim-blaming. The court ultimately found that the Act is unconstitutional to the extent that it allows for an unreasonable belief in consent as a defence, and suspended its declaration of invalidity for 18 months to allow Parliament to rectify the legislation.