President Cyril Ramaphosa signed the bill into law in January and it came into effect on 31 July.
Advocacy group The Embrace Project, which works against gender-based violence, is asking the Pretoria high court to declare amendments to the Sexual Offences Act unconstitutional.
The non-profit organisation wants the definitions of consent and rape to be ruled invalid.
“It is overwhelmingly clear that the Act is unconstitutional to the extent that it does not criminalise sexual violence where the perpetrator wrongly and unreasonably believed that the complainant was consenting to the conduct in question,” the group says in its high court application.
Cited as respondents in the matter are the minister of justice and correctional services, the president and the minister for women, youths and persons with disabilities.
President Cyril Ramaphosa signed the bill into law in January and it came into effect on 31 July.
The law broadens the scope of the national register for sex offenders to not only protect children and mentally disabled persons but all vulnerable groups and increases the period in which a sex offender’s particulars must remain on the register.
It was one of three bills signed into law in January that “aimed at strengthening efforts to end gender-based violence, with a victim-centred focus on combating this dehumanising pandemic”, Ramaphosa said.
But the Embrace Project says the Act “further victimises rape victims and survivors by protecting perpetrators based on their unreasonable states of mind”.
In a statement, it said it had raised concerns about the Act to Ramaphosa in October 2021, prior to him signing the amendments into law.
“As the law currently stands,” reads the statement, “it is insufficient to prove that an accused person committed an act of sexual penetration without the complainant’s consent.”
“It must further be proved that, in the accused’s subjective state of mind, he/she/they intended to rape the complainant regardless of the complainant not having consented to the sexual penetration.”
South Africa has one of the highest numbers of reported rape cases in the world. Quarterly crime statistics released this week showed an increase of 1 074 rape cases.
From July to September 10 590 cases of rape were reported. Sexual assaults climbed by 1 319 to 13 283 during the quarter, compared with the same period last year.
Friday marks the start of the global campaign of 16 Days of Activism against Gender-Based Violence in South Africa. To mark this, Amnesty International South Africa called for more action against gender-based violence, saying in a statement: “Authorities must show that they take women and girls’ rights to safety, dignity and life seriously, and stop paying lip service to this.”
Non-profit Sonke Gender Justice, which operates across the African continent, called for a societal response to end gender-based violence.
“It is critical that civil society organisations, government institutions, and private entities work together to end violence against women now … It is crucial that we demand justice and engage our leaders in implementing laws that protect women and prohibit practices that oppress women and girls,” it said.
A study published by international journal The Lancet in February suggests that globally, an average of 27% of women in a romantic relationship and aged 15 to 49 years have experienced physical or sexual violence, or both, at the hands of their intimate partner in their lifetime.