Authored By: LUYOLO MNYAMANA
UNIVERSITY OF FORTHARE
Abstract
Consent is a fundamental concept in South African law, especially in Criminal law, Constitutional law as well as Human Rights discourse. This concept plays a decisive role in determining whether a conduct is lawful or unlawful particularly in cases involving sexual offences, assault, rape and privacy. Despite its importance, the concept of consent remains broad and often contested, as the Courts are often required to balance individual autonomy with the interests of the public and Constitutional values. This article seeks to analyse the legal meaning of consent in South african law, examining its interpretation and constitutional implications. It further evaluates challenges that are associated with the application consent and proposes reforms that are aimed at strengthening legal certainty and protecting vulnerable individuals.
1 Introduction
The Republic of South Africa’s 1996 Constitution protects human dignity and personal autonomy, both of which are fundamentally based on consent. Legally speaking, consent can serve as a defence that makes actions that would otherwise be considered crimes or civil wrongs legitimate. Its importance is most evident in criminal law, particularly in situations involving assault, sexual offences, and medical intervention. In South Africa’s constitutional democracy, it is noted that Consent must be viewed within the larger context of constitutional rights, such as freedom, equality, dignity, and physical integrity, However, the interpretation and use of consent still present difficulties notwithstanding legislative changes and progressive court rulings, especially in situations involving power disparities, coercion, or vulnerability. This article examines the legal concept of consent in South African law, focusing on its statutory regulation, judicial interpretation, and constitutional underpinnings. The article contends that although South African law has made great strides in redefining consent, there are still gaps in guaranteeing uniform and rights-based implementation.
2 Research Methodology
This article adopts a doctrinal and analytical research approach. It relies on primary legal sources, including legislation, constitutional provisions, and case law, as well as secondary sources such as academic commentary and law reform reports. The study critically evaluates how consent is defined and applied within South African criminal and constitutional jurisprudence.
3 Legal Framework Governing Consent in South African Law
Consent means that an individual voluntarily and willingly agrees in response to another person’s proposition. The person must have necessary mental capacity to consent and there must be no coercion. Consent can be provided inadvertently, unspoken consent, as opposed to vocal or written consent, it is referred to as tacit consent. “For consent to succeed as a defense, it must be given consciously and voluntarily, either expressly or tacitly, by a person who has the mental capacity to understand what he or she is consenting to, and the consent must be based on true knowledge of material facts relating to the intercourse.”1
In the appeal case of S v Coko2 , para 92, it is said that “the complainant was an active participant throughout the experience; she was not merely passive. She kissed the appellant back, held him, had no issues with the removal of her clothes, she knew that he was erect, and did not object to the oral sex.” Sexual penetration is only lawful if there is consent, and unlawful in the event there is none. In the case of S v Nitto3the fact that there was consent or not, the state had to prove beyond reasonable doubt against the appellant, together with the elements of the offense.
In South African criminal law, consent may serve as a ground of justification, meaning that it excludes unlawfulness. However, not all forms of consent are said to be legally valid. For consent to be legally effective, it must be freely and voluntarily given, by a person who has the capacity to consent, and must relate to the conduct that is legally permissible.Historically, common law governed consent, particularly in cases of assault and sexual offences. However, this position has been significantly transformed by statutory intervention, most notably through the Criminal Law (Sexual Offences and Related Matters) Amendment Act.4 Section 1 of the Sexual Offences Act 5defines consent as “voluntary or uncoerced agreement.” The Act explicitly excludes consent obtained through force, threats, intimidation, abuse of power, or deception. This statutory definition represents a shift away from outdated common-law notions that placed undue emphasis on resistance by victims.
The Constitution of the Republic of South Africa, 1996, plays a central role in shaping the legal understanding of consent. Section 10 guarantees the right to human dignity, while Section 12 protects the right to freedom and security of the person, including bodily and psychological integrity. These constitutional provisions require that consent be informed, voluntary, and respectful of individual autonomy. Any legal interpretation of consent that undermines dignity or perpetuates inequality is inconsistent with constitutional values.
4 Judicial Interpretation of Consent
South African courts have increasingly adopted a victim-centred approach when interpreting consent in sexual offence cases. In S v Zuma 6, the Constitutional Court emphasised the importance of protecting complainants in sexual offence trials and rejected stereotypes that undermine victims’ credibility. Similarly, in S v M7, the court reaffirmed that consent must be genuine and cannot exist where coercion or manipulation is present. Courts have also recognised that silence or lack of physical resistance does not amount to consent, aligning judicial reasoning with constitutional principles of dignity and equality.
In cases of assault, South African courts have held that consent is not a valid defence where serious bodily harm is inflicted or where the conduct is contrary to public policy. In S v Collett8, the court ruled that consent to assault is limited and cannot justify violence that offends societal norms and constitutional values. This reflects the principle that individual autonomy must sometimes yield to broader societal interests, particularly where harm is severe or systemic. In Embrace Project v Minister of Justice and Constitutional Development case, the Court questioned the constitutionality of relying on an accused’s subjective belief in consent, holding that such an approach may undermine survivors’ constitutional rights. This case represents a major recent development in consent jurisprudence.
5 Critical Analysis
Despite legislative clarity, the application of consent in practice remains problematic. One major challenge is the evidentiary burden placed on complainants in sexual offence cases, where consent is often contested and difficult to prove or disprove. A primary challenge lies in the tension between subjective and objective standards of consent. Although the Act defines consent as voluntary and uncoerced, it does not unequivocally require an accused person to demonstrate that reasonable steps were taken to ascertain consent. This ambiguity has enabled reliance on an accused’s subjective belief, even where such belief may be shaped by gendered assumptions, power imbalances, or social stereotypes. As a result, courts may inadvertently privilege the perspective of the accused over the lived experience of the complainant, thereby undermining the constitutional rights to dignity and equality.
Another significant loophole concerns the evidentiary burden in sexual offence cases. Consent often becomes the central issue in trials where there are no witnesses other than the parties involved. Despite statutory recognition that silence or lack of resistance does not amount to consent, complainants continue to face intense scrutiny of their behaviour before, during, and after the incident. This reality reflects a gap between the law as written and the law as applied, raising concerns about secondary victimisation and access to justice.
Furthermore, the law struggles to adequately account for power dynamics and vulnerability. Situations involving authority figures, economic dependence, or emotional manipulation complicate the assessment of whether consent was genuinely free and voluntary. Although the Sexual Offences Act acknowledges abuse of power as negating consent, courts have not always applied this principle consistently, particularly in cases involving intimate relationships or social familiarity.
6 Recent Developments
In recent years, the legal understanding of consent in South African law particularly in the context of sexual offences has been the subject of significant litigation, proposed legislative reform, and public debate. One of the most important developments has been the progression of a landmark constitutional challenge concerning how consent is defined and applied in sexual offence cases. In 2024, the High Court in Pretoria declared portions of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 unconstitutional to the extent that the Act permitted an accused person to avoid conviction by showing it was reasonably possible that they believed the complainant consented to sexual conduct. This ruling was grounded in the constitutional rights to dignity, equality, and bodily integrity, as the High Court held that the subjective belief defence undermined the protection of survivors of sexual violence.
In S v J9, The court confirmed that the absence of physical resistance does not imply consent and acknowledged that trauma may prevent victims from actively resisting sexual violence. Furthermore, In S v Zuma 10 the Constitutional Court emphasised the need to protect complainants in sexual offence trials and rejected stereotypes that undermine victims’ credibility.
The case reinforced that consent must be evaluated in a manner consistent with dignity and equality.
7 Suggestions
To strengthen the legal understanding and application of consent in South African law, a multi institutional and constitutionally grounded approach is required. Firstly, legislative reform should be prioritised. Parliament should amend the Criminal Law (Sexual Offences and Related Matters) Amendment Act to clearly adopt an objective and affirmative standard of consent, requiring proof that consent was actively and freely communicated. Explicit statutory guidance would reduce reliance on subjective interpretations and align the law with constitutional values of dignity, equality, and bodily integrity.11
Secondly, the judiciary must continue to develop consent jurisprudence through a victim centred constitutional lens. Courts should consistently reject outdated assumptions regarding resistance, silence, or behaviour and emphasise that consent cannot exist in circumstances of coercion, power imbalance, or fear. Judicial training on trauma-informed adjudication would further promote consistency and fairness in sexual offence trials. Thirdly, law enforcement and prosecutorial practice should be strengthened. Specialised training for police officers and prosecutors on consent, trauma responses, and evidentiary sensitivity is essential to prevent secondary victimisation and improve the quality of investigations and prosecutions.
Fourthly, civil society organisations play a critical role in shaping legal reform and public understanding. Advocacy groups, legal clinics, and survivor-support organisations should continue to engage in strategic litigation, public education, and policy dialogue to ensure that lived experiences inform law-making and judicial interpretation. Finally, public legal education must be expanded. Nationwide awareness campaigns on the legal meaning of consent can challenge harmful social norms and contribute to prevention, reinforcing that consent must be informed, voluntary, and ongoing.
8 Conclusion
This article has examined the concept of consent in South African law through a criminal and constitutional lens, highlighting its central role in safeguarding dignity, equality, and bodily autonomy. It has shown that while legislative reforms—particularly the Criminal Law (Sexual Offences and Related Matters) Amendment Act—have modernised the legal definition of consent, significant challenges remain in its interpretation and practical application. Judicial decisions increasingly recognise that consent must be voluntary, informed, and free from coercion, yet inconsistencies persist, especially where power imbalances and trauma responses are present.
The importance of consent extends beyond criminal liability; it reflects the broader constitutional commitment to respecting individual autonomy and protecting vulnerable persons. In a society grappling with high levels of gender-based violence, the legal treatment of consent has profound implications for access to justice and public confidence in the legal system. Ultimately, the future of consent in South African law depends on the willingness of the legislature, judiciary, and civil society to adopt a coherent, rights-based approach that moves beyond formal definitions toward substantive protection. The critical question remains whether the law will continue to evolve in a manner that truly affirms that silence, fear, or submission can never be mistaken for consent, and whether South Africa’s constitutional promise of dignity for all will be fully realised in practice.
It is important to note that someone consents to vaginal, anal or oral penetration only if s/he agrees by choice to that penetration and has the freedom and capacity to make that choice. Consent to sexual activity may be given to one sort of sexual activity but not another, e.g.to vaginal but not anal sex or penetration with conditions, such as wearing a condom. Consent can be withdrawn at any time during sexual activity and each time activity occurs. In investigating the suspect, it must be established what steps, if any, the suspect took to obtain the complainant’s consent and the prosecution must prove that the suspect did not have a reasonable belief that the complainant was consenting.
9 Bibliography
9 1 Books:
• Snyman, C R Criminal Law 6 ed (LexisNexis, Durban 2014).
9 2 Case Law
• S v Zuma 1995 (2) SA 642 (CC).
• S v Coko 2015 (1) SACR 561 (ECG).
• S v Nitto 2002 (2) SACR 654 (SCA).
• S v Collett 1982 (1) SA 100 (A).
• S v M 2007 (2) SACR 60 (W).
• Embrace Project NPC v Minister of Justice and Constitutional Development 2024
9 3 Legislation
• Constitution of the Republic of South Africa, 1996.
• Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.
• Sexual offences Act 2003.
1 C.R Snyman Criminal Law 7th ed (2020).
2 S v Coko 2020 (CA&R 219).
3 S v Nitto 123/11 (2011) ZASCA 198).
4 Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.
5 Sexual offences Act 2003.
6S v Zuma 1995 (2) SA 642 (CC).
7 S v M 2007 (2) SACR 60 (W)
8 S v Collett 1978 (3) SA 206 (RA)
9 S v J 2019 1) SACR 165.
10 1995 (2) SA 642 (CC).
