Justice Minister Ronald Lamola is opposing an application that non-profit organisation, The Embrace Project, has lodged in the Gauteng High Court in Pretoria to challenge what it called "problematic" definitions of consent and rape in the Sexual Offences Act.

If the application is successful, it will do away with the principle of "innocent until proven guilty", chief director of legislative development in the Department of Justice, Leonard Sebelemetja, said in an affidavit filed on behalf of the minister last week.

The organisation approached the court in November last year.

Its case is that, in terms of the Act in its existing form, "it is insufficient to prove that an accused person committed an act of sexual penetration without the complainant's consent".

The organisation's director, Lee-Anne Germanos, explained, "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."

Germanos said the project wanted the law to apply an objective test, rather than a subjective one.

A subjective test, she said, "is not only regressive, but has proven to be a barrier to the conviction of accused persons who have been found to have committed acts of sexual penetration without the consent of the complainants (objectively), where the prosecution has been unable to prove that the accused persons subjectively intended to rape the complainants".

Presumption of innocence

Sebelemetja, however, said the relief sought would result in the following:

• A revocation of the accused person's presumption of innocence;
• The burden of proof unjustly falling on the accused, instead of the State;
• The lowering of the standard of proof from beyond reasonable doubt to negligence; and
• A conviction of rape when the accused was merely negligent, being too harsh a punishment.

Sebelemetja also submitted that by bringing the application, the Embrace Project was effectively blaming the Sexual Offences Act for the scourge of gender-based violence (GBV) in the country.

"The Act does not perpetuate rape culture, as suggested, but protects the victim of a crime as well; the victim must comply with the provisions of the Act if she wants the Act to come to her aid. No one is above the law," he said.

According to Sebelemetja, the government recognises the brutality of rape and its consequences.

"As a result, the various legislations were enacted in order to combat the scourge of rape," he added.

However, he said, legislation alone could not solve the problem "as the interpretation and application of the legislation come into play after the fact".

He said, "The old adage, prevention is better than cure, is equally applicable to rape. All stakeholders should be engaged in the implementation and applications of measures to combat GBV."

Germanos said the organisation was disappointed at Lamola's stance and that he had mischaracterised the application.

The president and Minister for Women, Youth and Persons with Disabilities have also been cited as respondents.

The Embrace Project is expected to file a replying affidavit before a court date is set.