The state is opposing a constitutional challenge brought against rape laws, denying claims by civil society groups that they give perpetrators an easy out.
The challenge, which has been brought by the non-profit organization, The Embrace Project, and a young woman identified as IH, is set down for hearing in the High Court in Pretoria later this month.
It takes aim at the legal definitions of rape and other consent-based s.e.xual offenses.
Chief director of legislative development, Leonard Tsietsi Sebelemetja, who deposed to the answering affidavit for the justice minister, said there was nothing wrong with the definitions as they stand.
He highlighted that the courts were constitutionally obliged to promote the spirit, purport, and objectives of the Bill of Rights when interpreting legislation and therefore should not interpret the definitions in question in a way that was inconsistent therewith.
He further said that an accused person who had the kind of unreasonable beliefs the applicants flagged “would have been at least reckless as to the existence of consent and the requirements for dolus eventualis would have been met” and that “unreasonable beliefs are held by our courts as ‘not reasonably possibly’ true and rejected as false”.
The applicants contend that in order for a “mistaken belief defence”, as it is known, to be valid, an accused should have to have taken “objectively reasonable steps” to ascertain there was consent.
But Sebelemetja said their application seeks to place the burden of proof on the accused and that this would “essentially reverse the right to be presumed innocent until proven guilty”.
