MEDIA RELEASE
2025-10-01
SUMMARY: The Labour Party of South Africa reflects on the judicial debates on subjective consent according to the Sexual Offences Act Amendment Act 32 of 2007 in the Constitutional Court. This follows the High Court judgment last year making a finding on the invalidity of certain sections of the Sexual Offences Act that allowed perpetrators to rely on a subjective belief in consent, a loophole that contributes to South Africa’s low rape conviction. The Labour Party interim president Joseph Mathunjwa has called for a constitutional reset, harsher penalties including the death penalty for femicide, and a national inquiry into gender-based violence, arguing that reforms must deliver real justice and protection for women.
On 25 September 2025 the Constitutional Court heard further arguments following the judgement last year in the Gauteng High Court wherein the court found invalid certain sections of the Sexual Offences Act (as amended) stating that some of the provisions are unconstitutional.
The unconstitutionality lies in that the sections infringe on a host of constitutional precepts entrenched in the Bill of Rights. The main legal question centred on the issue of subjective consent as a defence which can be invoked by the perpetrator. Essentially the perpetrator may rely on their belief that the victim consented to the sexual conduct, thus not criminalising the sexual violence.
The issue is that this is a purely subjective enquiry allowing the perpetrator to build a compelling subjective case resulting in a strenuous task for the court to try proving beyond reasonable doubt that the perpetrator did in fact act without necessary consent.
“It is then not shocking that South Africa is a rape hotspot in the world, and there are low conviction rates” said interim President of the Labour Party Joseph Mathunjwa.
According to Statista the rate of reported rape cases today sits at over 40 000 cases whereas the number of convictions lag far behind at approximately 500 convictions. This is less than 5% success rate. “This is clearly a systematic issue – which is borne out of the Constitution itself!” stated Mathunjwa.
“This is exactly why the Labour Party believes that South Africa requires a constitutional reset, starting with reforming the constitutional sections that undermine democracy and citizen power.” He added. Mathunjwa frustrated at the rise of rape cases suggested an extreme measure stating that
“If the Sexual Offence Act (as amended) creates legal loopholes to the benefit of the perpetrator and further victimises women; is it not better that we impose the death penalty for femicide and chemical castration for rape. Perhaps these perpetrators will begin to fear the law and respect women.
”Inasmuch as there is judicial engagement on the issue of consent, the Labour Party is at pains to remind South Africans that the rape cases we hear of everyday is not just of those where content is necessarily a factor.
“A 3-year-old baby or an old lady are in no position to offer consent. ” Mathunjwa said. “This is not an issue of consent only, but an issue of the degradation of Ubuntu, respect for each other, and the disregard of women” he added.
The constitutional court also stated that “… Women in this country are entitled to the protection of these rights. They have a legitimate claim to walk peacefully on the streets, to enjoy their shopping and their entertainment, to go and come from work, and to enjoy the peace and tranquillity of their homes without the fear, the apprehension and the insecurity which constantly diminishes the quality and enjoyment of their lives.”
If the constitutional court is alive to the horrific effects of rape in societies as it stated in Tshabalala v S; Ntuli v S that “rape seeks to destroy the moral and social fabric of our community” , why are there no declarations of gender-based violence and femicide being a national disaster?
“There have been countless unfruitful commissions of inquiry which used billions of rands of taxpayer money; where is a dedicated commission of inquiry into gender-based violence and femicide”? asked Mathunjwa.
“This is a reality in so many communities, and it needs more than just legal debates, but if we do engage in constitutional amendments, it must be practical solutions that will immediately deter perpetrators and restore the hope of victims and survivors. Judgment was reserved but the rape cases continue to rise” said Mathunjwa.
“If South Africa is to fight against the scourge of gender-based-violence and femicide, constitutional reform must move to the next step after the legal technicalities and debates and deliver justice and safety for South Africans. Bring back the death penalty and deny bail to perpetrators” he concluded.
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