Authored By: Lithalethu Mehlwana
University of Fort Hare
Abstract
Consent is essential for sexual autonomy, dignity, and bodily integrity as per South African constitutional and criminal law. However, the private and complex nature of romantic relationships, where previous intimacy, silence, non-verbal communication, emotional influence, and power disparities exist, makes the consent to sexual intercourse legally unclear in numerous actual situations. This piece analyses the legal and constitutional bases of consent in South Africa, reviews significant and pertinent case law, and interacts with social and doctrinal writings to identify discrepancies between law and real-world experiences. It contends that although South African law has conclusively shifted from assuming that marriage or relationship status indicates consent, practical application in romantic situations is hindered by challenges in evidence and disputed defences. The piece advocates for specific reforms, a more precise legal definition of affirmative consent principles; restricting mistaken-belief defences to those that are objectively reasonable; providing judicial training to identify emotional and relational coercion; and implementing public education to alter cultural norms that foster silence and compliance in intimate relationships
- Introduction
Consent for sexual activity is a fundamental legal and ethical cornerstone in any criminal justice framework that aims to safeguard bodily autonomy and human respect. According to the Constitution of the Republic of South Africa, 1996, the rights to dignity, bodily integrity, and privacy shape the criminal regulations regarding sexual conduct.1 The Parliament has codified a significant portion of the substantive law related to sexual offences in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, emphasizing the importance of consent and denying the assumption of consent based on silence or non-active behaviour.2
Despite these normative and statutory safeguards, romantic relationships present specific challenges for courts, prosecutors, and fact-finders. Partners might depend on unspoken agreements developed through past closeness, victims might hesitate to oppose or disclose actions due to concerns over social repercussions or the potential end of relationships; accused individuals may reference non-verbal signals or previous consensual interactions as a rationale for their perceived notion of consent. These situations create legal uncertainty when individuals dispute the existence of consent for a particular act of sexual intercourse. This article examines how South African law handles consent ambiguity in romantic relationships, the doctrinal and evidentiary issues that occur in practice, and what reforms could better align legal protections with the actual experiences of intimate partners.
- Constitutional and Statutory Foundations
The Constitution of South Africa provides the normative base for a strong consent doctrine. Section 10 safeguards human dignity; section 12(2) ensures security and authority over one’s body, encompassing the right to make reproductive choices; and section 14 upholds privacy.3 Analysing sexual offences law through the lens of these rights necessitates focus on autonomy and the ban on non-consensual sexual actions.
The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 establishes the legal framework for sexual penetration offences and associated crimes while also defining consent relevant to those offences. According to section 1 of the Act, consent is described as an agreement that is voluntary or not obtained through coercion.4 Consent must be provided willingly and without coercion, threats, misuse of power, or deceit. Most importantly, consent can be retracted at any point during the sexual act, emphasizing that consent is an ongoing and evolving process instead of a one-time license. Importantly, the law states that consent cannot be assumed simply from silence, inaction, or lack of physical resistance, addressing outdated beliefs that non-resistance signifies consent. ⁵
The Domestic Violence Act 116 of 1998 acknowledges that abuse in intimate relationships can manifest in ways other than just blatant physical violence, such as psychological or emotional manipulation, which can undermine voluntary consent. Domestic legislation that enables protection orders and acknowledges the range of domestic abuse highlights that sexual violence within romantic relationships falls under the law’s jurisdiction.5
- Case Laws on Ambiguity of Consent in Romantic Relationships
The South African legal framework regarding consent in sexual relationships showcases the nation’s constitutional dedication to dignity, equality, and bodily autonomy, while contending with the intricacies of intimate situations where consent may be unclear. Judicial proceedings often involve evaluating claims of rape or sexual assault in situations where the individuals have a previous connection or where actions, silence, or closeness are used to imply consent. The development of case law shows a steady yet distinct disapproval of assumptions based on marital status, gender biases, or past relationships, while reinforcing that the foundation of lawful sexual relations is mutual and voluntary consent at the moment of the act.
The ruling of the Constitutional Court in Masiya v Director of Public Prosecutions, Pretoria (The State) and Another, [2007] ZACC 9, 2007 (5) SA 30 (CC), marked a crucial change in the interpretation of rape within South African law. Traditionally, the common-law definition of rape was limited to the non-consensual penile-vaginal penetration of a female. This limited and gender-specific view overlooked various coercive sexual actions and neglected to acknowledge the existence of male victims and additional forms of penetration. In Masiya, the Court expanded the definition to encompass non-consensual anal penetration, while recognizing that additional reform could also cover other types of sexual assault. Masiya’s significance for consent law is its emphasis that the primary harm of rape is the infringement of sexual autonomy, not the violation of patriarchal or marital norms. By defining rape primarily as the lack of consent, the Court dismissed any remaining assumption that factors like relationship status, prior sexual encounters, or cultural norms could lessen the necessity for current and voluntary consent. By doing this, Masiya established the constitutional basis for acknowledging sexual autonomy as a universal right, relevant in romantic relationships where consent could otherwise be vaguely assumed.6
The case of S v Zuma 2006 (2) SACR 191 (W), a notable trial of Jacob Zuma during the mid 2000s, underscored the evidential and doctrinal challenges that emerge in situations of unclear consent within personal contexts. Zuma faced charges for raping a family acquaintance, and the trial symbolized the conflicting stories that frequently overshadow these kinds of cases. A key question was if the complainant’s actions of accepting an invitation to Zuma’s residence, wearing a kanga, or having previous affectionate interactions could be interpreted as indicating consent. Zuma contended that these elements fostered a valid assumption of consent, whereas the prosecution insisted that none of them contradicted the complainant’s clear rejection. The trial highlighted the necessity for courts to vigilantly avoid conflating closeness, attire, or past familiarity with current agreement. Although Zuma was eventually found not guilty, the case provided a warning about how stereotypes and contextual beliefs can erode the safeguarding of sexual autonomy. It also showcased the challenges courts encounter in credibility disputes when evidence relies solely on the opposing testimonies of the complainant and the accused, with public sentiment frequently obscuring legal judgment. The Zuma trial highlighted that cases of ambiguous consent cannot be clarified by assuming consent based on the situation; they necessitate careful examination of whether the complainant provided explicit, voluntary consent during the act of intercourse.7
The Constitutional Court’s ruling in Teddy Bear Clinic for Abused Children & Another v Minister of Justice and Constitutional Development & Others, [2013] ZACC 35, is not explicitly concerning adult romantic relationships, yet its logic holds significant consequences for the law regarding consent. The case involved the criminalization of consensual sexual conduct among teenagers, with the Court ruling against sections of the Sexual Offences Act that placed broad criminal responsibility on minors for consensual interactions with their peers. In this process, the Court highlighted the constitutional principles of dignity, privacy, and sexual autonomy. Crucially, the Court acknowledged that consent is a complex and situational aspect, and that laws that enforce strict assumptions or categorize all sexual behaviour uniformly do not honour personal autonomy. Similarly, Teddy Bear Clinic warns against reductionist views of adult romantic relationships: just as teenagers cannot lose their sexual autonomy due to overly broad legislation, adults in close relationships cannot be assumed to have consented solely based on previous intimacy or a current partnership. The case therefore strengthens the idea that autonomy is the fundamental basis for lawful sexual relations, and that consent should be assessed individually instead of being assumed based on status or past experiences.8
The latest advancement in this legal area arises from the Supreme Court of Appeal in Director of Public Prosecutions, Eastern Cape, Makhanda v Coko ([2024] ZASCA 59). The case gained significant attention as it directly addressed the problem of unclear consent within the context of an intimate relationship. The defendant contended that the complainant’s previous closeness, her kissing, and her absence of clear opposition suggested consent or, at the very least, created a reasonable belief in consent. The Supreme court of Appeal firmly dismissed this line of reasoning, highlighting that previous closeness or passive behaviour cannot be directly interpreted as consent for a particular sexual act. The Court in this case determined that the validity of consent must be evaluated based on the actions the accused took to confirm current agreement, rather than solely the conclusions he made from the complainant’s behaviour. This created an obligation for individuals to proactively guarantee voluntary involvement, instead of depending on silence or vague signals. By doing so, the Court aligned itself with constitutional principles of dignity and bodily integrity, and it progressed the jurisprudence by specifying the evidentiary standards relevant to the defence of belief in consent. The Coko ruling signifies the advancement of South African law toward stronger safeguarding of sexual autonomy in personal contexts, acknowledging the specific dangers of uncertainty in romantic relationships.9
Together, these authorities highlight two significant trends in South African law. Initially, the courts have clearly rejected the notion that relationship status, past sexual history, or implied behaviour can act as presumptive proof of consent. Instead, they have consistently stated that sexual activity necessitates current, informed, and voluntary consent, irrespective of the larger relationship context. Second, the cases reveal the ongoing evidentiary difficulties in intimate
partner prosecutions, where the lack of witnesses, the history of intimacy, and the dependence on credibility evaluations complicate reaching conclusive trial outcomes. The law has progressively aimed to steer courts away from harmful assumptions and towards a more detailed assessment of consent; however, the reality is that these cases often depend on fine differences in statements and context.
- Mistaken Belief, Implied Consent, and the Romantic Context
4.1 The doctrine of mistaken belief in consent
The principle of erroneous assumption of consent holds a vital role in South African criminal law, especially in instances relating to sexual offenses in romantic partnerships. According to common law and established guidelines, a defendant can evade criminal responsibility if they genuinely believed that the complainant agreed to the sexual act. Historically, this defence was assessed primarily in a subjective manner; however, contemporary statutory interpretation and judicial rulings have clarified that the belief must be reasonably objective. In essence, the defendant cannot depend only on their own view but must show that a reasonable person in the same situation would have likewise believed that consent was present. Romantic relationships frequently complicate this investigation since previous closeness, playful behaviour, or unspoken signals can foster a deceptive notion of agreement. Courts have increasingly stressed that such cues cannot substitute for a clear, voluntary agreement, especially in situations involving emotional pressure or power disparities.10
In Director of Public Prosecutions, Eastern Cape, Makhanda v Coko ([2024] ZASCA 59), the Supreme Court of Appeal provided guidance: the defendant contended that the complainant’s previous closeness and passive demeanour warranted a belief in consent. The Court dismissed this argument, asserting that dependence on previous closeness or lack of opposition is inadequate; any asserted belief must be confirmed through affirmative actions to guarantee current consent.11 The ruling emphasizes the constitutional duty to safeguard bodily integrity and personal autonomy, asserting that consent cannot be assumed based solely on the nature of the relationship. As a result, the principle of erroneous belief is now closely limited, necessitating both sincerity and rationality, and demanding proactive confirmation of consent in personal situations.
4.2 Implied consent and prior intimacy
Implied consent occurs when a defendant asserts that previous sexual encounters, living together, or established closeness grant approval for future sexual actions. In romantic relationships, this point is often made, showcasing a widespread yet legally unsupported belief that previous sexual involvement leads to lasting entitlement.12 South African legislation clearly dismisses this idea. The Sexual Offences Act 32 of 2007 establishes that consent must be freely provided at the moment of the sexual act and cannot be assumed from silence, inaction, or past behaviour.
In the case of Masiya v Director of Public Prosecutions, Pretoria (The State) and Another, [2007] ZACC 9, 2007 (5) SA 30 (CC), the Constitutional Court reiterated that it is consent, rather than marital status or past sexual behaviour, that establishes criminal responsibility.13 Likewise, in the prominent S v Zuma case, the defence’s argument that the complainant’s previous intimacy and knowledge of the accused constituted adequate evidence of consent was dismissed as inadequate.14 These precedents collectively show that implied consent lacks legal validity; every sexual act necessitates simultaneous, clear consent. The law acknowledges that romantic relationships consist of continual engagement, yet past sexual conduct cannot act as a substitute for current consent. This guarantees that sexual autonomy is honoured and that beliefs based on entitlement, cultural norms, or relationship background do not weaken legal safeguards against non-consensual sexual actions.
- Evidentiary Realities: The ‘He said, She said’ Problem
A significant ongoing challenge in prosecuting sexual offenses in romantic relationships is evidential, sexual acts generally take place in private, resulting in cases often devolving into contradictory testimonies from the complainant and the accused. The lack of impartial witnesses, along with societal pressures and anxiety about relationship deterioration, makes fact-finding more difficult.15 Those making complaints might hesitate to oppose or report abuse at the time, while those accused might genuinely think consent was given. Judicial bodies must handle these conflicts delicately, using thorough credibility evaluations and steering clear of rape stereotypes or beliefs regarding sexual entitlement.
In Director of Public Prosecutions, Eastern Cape, Makhanda v Coko ([2024] ZASCA 59), the Supreme Court of Appeal emphasized that judges need to take into account contextual elements like emotional pressure, dependence, and relationship dynamics when assessing consent and the legitimacy of any asserted belief in consent.16 In Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development & Others, [2013] ZACC 35, the Constitutional Court emphasized that legal safeguards should consider the complex situations of vulnerable individuals, highlighting the need for a careful, context-specific examination. Evidential difficulties highlight the necessity for courts to employ thorough examination, taking into account both personal experiences and objective criteria of reasonableness.17 The law acknowledges that uncertainty in romantic relationships does not justify non-consensual actions; instead, it requires the accused to secure explicit and voluntary consent, while guiding courts to evaluate testimony in the wider relational and social framework.
5.1 Socio-legal Context: why Ambiguity Arises
Legal principles cannot be separated from cultural and societal practices. Empirical studies in South Africa indicate that gender roles, expectations of exchanges, anxieties regarding relationship collapse, and stigma associated with reporting sexual violence create situations where consent is inadequately conveyed or silently retracted.¹⁴ Research and governmental documents consistently reveal that survivors frequently do not resist due to fears of retaliation or additional harm; they might comply to preserve relationships or safeguard their social status.¹⁵ These factors highlight the importance of legal clarity and actionable steps to facilitate reporting and evidence gathering.
- Reform Proposal and Practical Recommendations
Laws should more clearly support an affirmative consent standard, meaning consent is an active, voluntary, and continuous agreement to engage in sexual intercourse, while specifying that previous intimacy or relationships do not automatically signify current consent. Establishing the rule that consent is necessary for every sexual act would limit the opportunities for implied-consent claims.
If a defence based on a mistaken belief in consent is to be allowed, it ought to be restricted to situations where the belief was objectively justifiable given the circumstances and where the accused made reasonable efforts to verify consent. This associates blame with a responsibility for care in close relationships. Judges and prosecutors ought to undergo organized training on gender-based power dynamics, the nature of intimate coercion, and the dangers of rape myths. Judicial instructions to juries clarifying the constraints of deducing consent from silence or past intimacy would aid in standardizing adjudication.
Law enforcement and healthcare providers need to be educated on how to maintain and record contemporaneous evidence, such as digital communications that can offer context regarding assertions of consent or lack thereof. Support services for victims and accessible legal assistance are crucial to promote reporting. Law enforcement and healthcare professionals need to be educated on how to collect and record real-time evidence, such as digital messages, which can offer insights into assertions of consent or lack thereof. Support services for victims and accessible legal assistance are crucial to promote reporting.
- Conclusion
Many doctrinal hurdles that formerly excused sexual intrusions inside intimate partnerships have been abolished by South African law, which acknowledges the importance of consent to sexual autonomy. However, love partnerships still result in legally murky situations where permission to sexual activity is disputed. Clarity will be reduced and dignity, equality, and bodily integrity will be better protected by a combination of statutory reform toward affirmative consent, restricting subjective belief defences to objectively reasonable beliefs, judicial education, enhanced investigative practice, and public norm-changing campaigns. Legal protection in intimate relationships can only be both principled and practical if it pays attention to the lived circumstances that make clear communication challenging as well as the doctrinal clarity of consent.
Bibliography
Legislations:
∙ Constitution of the Republic of South Africa, 1996.
∙ Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, sec 1 (2007).
∙ Domestic Violence Act 116 of 1998.
Case Laws:
∙ Director of Public Prosecutions, Eastern Cape, Makhanda v Coko ([2024] ZASCA 59).
∙ Masiya v Director of Public Prosecutions, Pretoria (The State) and Another, [2007] ZACC 9, 2007 (5) SA 30 (CC).
∙ S v Zuma 2006 (2) SACR 191 (W).
∙ Teddy Bear Clinic for Abused Children & Another v Minister of Justice and Constitutional Development & Others, [2013] ZACC 35.
Books:
∙ S.J.Stal; “Does Mistaken Belief in Consent Constitute a defence in South Africa?” (PER) 2023.
∙ Burchell Principles of Criminal Law 3ed (2013) 595.
Journals:
∙ Kruger and Reyneke “Sexual Offences Courts in South Africa: Quo Vadis?” 2008 33 Journal for Juridical Science 32-38.
News reports:
∙ Dee Smythe, rape Unresolved: Policing Sexual Offences in South Africa (UCT Press 2015).
1 Constitution of the Republic of South Africa, 1996
2 Dee Smythe, rape Unresolved: Policing Sexual Offences in South Africa (UCT Press 2015).
3 Constitution of the Republic of South Africa, 1996.
4 Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, sec 1 (November 22, 2007).
5 Domestic Violence Act 116 of 1998 (December 2 ,1998).
6 Masiya v Director of Public Prosecutions, Pretoria (The State) and Another, [2007] ZACC 9, 2007 (5) SA 30 (CC).
7 S v Zuma 2006 (2) SACR 191 (W).
8 Teddy Bear Clinic for Abused Children & Another v Minister of Justice and Constitutional Development & Others, [2013] ZACC 35.
9 Director of Public Prosecutions, Eastern Cape, Makhanda v Coko ([2024] ZASCA 59.
10 S.J.Stal; “Does Mistaken Belief in Consent Constitute a defence in South Africa?” (PER) 2023.
11 Public Prosecutions, Eastern Cape, Makhanda v Coko ([2024] ZASCA 59).
12 Burchell Principles of Criminal Law 3ed (2013) 595.
13 Masiya v Director of Public Prosecutions, Pretoria (The State) and Another, [2007] ZACC 9, 2007 (5) SA 30 (CC).
14 S v Zuma 2006 (2) SACR 191 (W).
15 Kruger and Reyneke “Sexual Offences Courts in South Africa: Quo Vadis?” 2008 33 Journal for Juridical Science 32 38.
16 Director of Public Prosecutions, Eastern Cape, Makhanda v Coko ([2024] ZASCA 59).
17 Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development & Others, [2013] ZACC 35.
