6 months ago
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This week, the Pretoria high court gave a landmark ruling that will not only change the course of history in dealing with sexual offences but ensure greater protection under the law for rape victims.
The ground-breaking judgment handed down on Monday by judge Selby Baqwa, declared sections of the Sexual Offences Act unconstitutional. The court ordered the removal of the ability of rape perpetrators’ reliance that their victims gave them consent.
Baqwa said: “All the suggested amendment to the law seeks to suggest is a test that will require a perpetrator to explain the objective steps he took to establish the presence or absence of consent prior to the alleged rape.”
It now requires the accused person to ensure that consent was given, even if the victim might not have physically or loudly expressed it. The significance of the ruling is perhaps underscored by the rape crisis culture in this country.
According to quarterly police crime statistics released in August, rapes in the first quarter of 2024-2025 financial year rose by 0.6% to 9,309, with most cases reported in Gauteng, followed by KwaZulu-Natal, Eastern Cape and Western Cape. These figures are not only alarming but also point to an urgent need for the law to protect victims of rape, if the fight against gender-based violence is to be won.
But perhaps even more importantly, the judgment is significant due to the cases where accused persons are acquitted because the state could not prove beyond a reasonable doubt that the believe that a victim consented to sex is incorrect.
While the case before the Pretoria high court was brought by Inge Holztrager and nonprofit organisation The Embrace Project, to challenge the Act, its implications are far and wide. There are people who have taken advantage of victims just for sexual satisfaction, and who have received no punishment for doing so.
Rape is a crime that strips another person of their dignity and inflicts permanent scars to last a lifetime. Holztrager’s fight after her own trauma has culminated in this positive change in the law which we should all be truly grateful for, and applaud her bravery in ensuring no other victim suffers what she went through.
The key in dismantling misconceptions about sex and consent lies in the tightening of loopholes in legislation and educating the public. Sexual violence in this country, as the police statisticsshow, is reaching frightening levels that require every effort not to be spared to fight it.
