International Relations Minister Ronald Lamola reiterated the need to respect Ukraine’s territorial integrity but SA abstained from the resolution tabled by Kyiv. Photo: OJ Koloti/Gallo Images
The ministry of justice is drafting court papers to withdraw what it deems the most egregious paragraphs in its affidavit filed in response to a constitutional challenge to the law on rape.
“We are attending to striking out problematic aspects of the answering affidavit,” justice minister Ronald Lamola’s spokesman, Chrispin Phiri, confirmed.
The applicants in the case are asking the Pretoria high court to declare unconstitutional the retention of the subjective test on consent in terms of which an accused can plead that he held the genuine, if mistaken, belief that he was not acting against the will of the victim.
The defence allowed men to successfully raise a legal defence based on rape myths and placed an excessive burden on the state to prove the mindset of the accused, the Embrace Project argued in founding papers.
This, they submitted, contributed to the low conviction rate in a country blighted by gender-based violence and residual patriarchal attitudes to women.
In an answering affidavit filed on behalf of the ministry, the chief director for legislative development in the justice department, Leonard Sebelemetja, argued, inter alia, that the applicants were motivated by negativity towards men.
“The court is requested not to suspend anything as the Act does not have any irregularities and it must be left as is, the applicants are only driven by their ego towards men and they are using their emotions to persuade the court to declare unconstitutional an act which is in line with the Constitution.”
This is one of eight paragraphs that will be struck out by way of a supplementary affidavit that is in the final stages of drafting, Phiri said.
“In terms of the constitutional court jurisprudence, we are obliged to file papers explaining to the court what our position is on a constitutional matter brought before the court,” he said.
“We will be doing so in this instance, and we will strike out various offending paragraphs, which include those mentioned by the Mail & Guardian in a recent article.”
As reported in these pages last week, the chief director submitted that one of the problems of replacing the subjective test on consent with an objective test was that this would impose a single standard of acceptable sexual conduct in a diverse society.
“South Africa is a heterogeneous nation and this factor on its own will make the objective test difficult for the courts to adjudge consistently.”
After reading the papers, the applicants said this did not refute, but rather vindicated, their argument. The ministry was, they said, making a case for the law to retain a provision that compelled courts to acquit rapists who raised a regressive mindset as a defence.
This paragraph, too, will be struck out, and so will another faulting the Embrace Project, which was founded in 2020, for failing to put its views to the South African law commission when it reviewed the Act in 2002.
“We also intend to convey our apologies to the litigants,” Phiri said, adding that the ministry was trying to establish how the affidavit slipped past internal controls.
“The language in our papers does not exemplify how a state institution should respond to challenges brought against an accountable government.”
The ministry will however continue to oppose the challenge to sections 3 to 9 and 11(a) of the Sexual Offences and Related Matters Act of 2007 as it believed that, as it stood, the law reflected the soundest approach to a problem extensively debated in jurisdictions around the world.
It arises from the definition of the crime as sexual penetration against the will of the victim.
Therefore, for criminal intent to be present, the accused must know that consent is absent.
After an extensive review process — in which the very arguments raised by the applicants and the ministry here were weighed — Ireland last year opted to replace the defence of subjective or honest belief in consent with one of an “objectively reasonable” belief that the victim had consented.
Locally, the law commission mulled an objective test but did not recommend it to parliament in 2002.
The applicants said the reforms that were implemented debunked several rape myths.
It was now plain that most rape victims do not fight or flee but “freeze”.
But if the courts can no longer infer consent from a lack of struggle, the defence of mistaken belief allows an accused to get away with doing so.