South Africa’s Sexual Offences Law Under Review: Constitutional Court Consent Case & Its Stakes
South Africa’s legal framework for sexual offences is facing a high-profile review as the Constitutional Court considers whether the way “consent” is defined in the Criminal Law (Sexual Offences and Related Matters) Act should be changed. Advocacy organisations have argued that current definitions can place an unfair burden on survivors and allow unreasonable subjective beliefs in consent to operate as defences. The case has drawn national attention because of its potential to reshape how sexual offences are prosecuted and how survivor testimony is treated in court.
The Constitutional Court Hearing
On 25 September 2025 the Constitutional Court heard arguments in cases brought by organisations and survivors challenging the statutory treatment of consent in sexual-offence offences. The primary applications ask the court to consider whether allowing an accused to rely on a subjective belief in consent — without proving that belief was objectively reasonable — infringes victims’ constitutional rights and South Africa’s duties under international law. The litigation follows a Pretoria High Court judgment that found certain provisions unconstitutional and suspended that declaration to allow Parliament an opportunity to amend the law.
The matters before the Constitutional Court include applications by civil-society organisations and affected survivors; prominent intervening parties and amici curiae — such as the Centre for Human Rights and professional bodies — have sought to make written and oral submissions to assist the court. Several legal groups contend that the law’s current structure forces prosecutions and trials to focus unduly on whether a complainant actually consented, rather than on the accused’s responsibility to ascertain consent.
What the Legal Challenge Seeks
Applicants argue for a re-reading or alteration of the statute so that an accused cannot evade liability by relying on an unqualified subjective belief in consent. Proposed legal adjustments range from requiring the accused to demonstrate they took objectively reasonable steps to obtain consent, to more radical submissions that would remove “consent” as an element of certain offences and recast the legal tests applied in prosecution. Supporters say such changes would reduce victim-blaming and align criminal law with constitutional values of dignity and equality.
Precedent: The Coko/SCA Ruling
The litigation sits against the backdrop of recent appellate jurisprudence. In 2024 the Supreme Court of Appeal clarified that consent must be conscious and voluntary and that consent to one act (for example, foreplay) does not automatically extend to another (such as penetration). That judgment has been widely cited in subsequent debates about how courts should assess consent and claims of mistaken belief.
Potential Outcomes and Legal Stakes
Possible Constitutional Court outcomes include upholding the High Court’s order, requiring Parliament to amend the statute in a particular way, endorsing an objective reasonableness test for believed consent, or—and more controversially—ordering more far-reaching statutory changes. Any decision will need to strike a balance between strengthening protections for survivors and safeguarding the accused’s constitutional right to a fair trial.
Context: Gender-Based Violence and Institutional Responses
South Africa continues to face very high rates of gender-based violence. The hearing has therefore attracted public interest not only for its legal technicalities but for its potential to influence survivor experiences — from reporting and investigation to prosecution and conviction. Judicial rulings, legislative reform, and improved victim-support services are all part of the broader response needed to address GBV.
Existing institutional measures include specialised sexual-offences courts, Thuthuzela Care Centres that deliver multi-disciplinary survivor support, and the National Strategic Plan on GBVF. At the same time, resource constraints, investigative backlogs, social stigma, and courtroom attitudes remain obstacles to effective redress for survivors.
Critiques and Implementation Challenges
Legal reform proponents caution that changing statutory language alone will not be sufficient. Effective impact requires adequate training for police and prosecutors, resourcing for forensic services and victim support, and public-education initiatives to shift social attitudes. Critics also warn courts to respect separation-of-powers principles; some contend that wholesale removal of “consent” as an element of certain offences raises complex questions about criminalisation and proof.
Conclusion
The Constitutional Court’s engagement with these consent challenges marks a major moment in South Africa’s efforts to reform sexual-offence law. A ruling that endorses a more objective assessment of believed consent—or that requires statutory amendment—could reduce the emphasis on survivors’ conduct in prosecutions and strengthen victim protections. Yet any meaningful change will depend on practical implementation, sufficient resourcing, and broader societal shifts to dismantle entrenched patterns of victim-blaming and impunity.