Challenging Consent—Applicant Versus Amicus Curiae Interventions in Sexual Violence Cases in South Africa

Abstract

This note presents and analyses the Centre for Applied Legal Studies’ (CALS) considerations regarding whether to intervene as an amicus curiae or a co-applicant in Embrace v. Minister of Justice and Correctional Services (Embrace), a legal case which questions the constitutionality of the mistaken belief in consent defence in relation to rape (and other sexual offences). To present CALS’ litigation considerations, which formed the decision of whether to intervene in Embrace as an amicus curiae or co-applicant, this note presents the legal context around the mistaken belief defence. It then expands on CALS’ position around the framing of mistaken belief, which differs from the two applicants in Embrace. Finally, it presents CALS’ considerations that were required around entering the Embrace case as an applicant as opposed to entering as an amicus curia. The considerations included the benefit of co-applicants to raise new legal issues, and the forms of recourse available to amici versus co-applicants, the principle of the ‘low-hanging fruits’, and finally, potential liability around costs.

Practitioner points

• This note will benefit practitioners as it analyses the advantages and disadvantages associated with intervening in a case as an amicus curiae versus a co-applicant.

• The comparison includes focusing on the potential to bring in new issues, the types of recourse available, the strategic advantages and costs associated with amicus curiae versus -co-applicant interventions.

• The focus on gender-based violence litigation is important as it aims to trace and contextualize the note within the historical feminist jurisprudence and the current socio-political climate.

1. Introduction—the consent cases

In 2021 the outcome of the rape appeal case of Coko v. State (2021) caused public outrage in South Africa (Bates 2021). The case concerned an accused’s mistaken belief that consent was present in his sexual encounter with the complainant.

The lower regional court (the trial court) found the accused to have had the requisite intention to rape. Thus, the state had successfully proven the requirements of rape. However, the appeal court (the Eastern Cape Division of the High Court at Makhanda) found that the accused believed, even if that belief was unreasonably mistaken, that he had the consent of the complainant, thus negating the element of intention. This resulted in the appeal court overturning the trial court’s finding of guilt to not guilty.

Feminists asserted that the reasons given by the court for why the accused had believed that consent was present were based on the court’s own gender stereotyping and reliance on rape myths (Deyi and Botha 2021; McKaiser 2021; Swemmer 2021). Problematic stereotypes included the court finding that although the complainant communicated to the accused that she did not want to engage in sexual intercourse with him before their other consensual sexual activities, the accused perceived that consent was tacit in so far as she had consented to ‘foreplay’. Furthermore, despite the complainant expressing that the accused was hurting her when he penetrated her with his penis and while she tried to push him off, he still considered her an active and consenting participant and admitted ‘[t]he only thing she said to me was that it was painful and when she said it was painful, I would stop and then I would continue’ (Coko v. State 2021).

After relentless public pressure and letters from various feminist organizations to the National Prosecuting Authority (NPA), the NPA filed its appeal to the Supreme Court of Appeal (SCA) in March of 2022 (Director of Public Prosecutions v. Coko SCA Notice of Appeal 2022). The appeal focused on the previous court’s application of law as it currently stands in South Africa, arguing, among other factors, that the court was incorrect in holding that there was tacit consent despite the complainant saying she was not ready to engage in sexual intercourse at all and communicating so to the accused (Director of Public Prosecutions v. Coko SCA Notice of Appeal 2022).

In November 2022, while the NPA, the accused, and various amici were filing papers for the SCA appeal of the Coko case, a constitutional challenge against the defence of mistaken belief in consent was launched in the High Court in Pretoria (The Embrace Project NPC v. Minister of Justice and Correctional Services, High Court of South Africa, Gauteng Division, Pretoria (Applicant 1 and 2 Founding Affidavit 2022) (‘Embrace’). Unlike the Coko case, the Embrace case requested the court to engage directly with the questions of the constitutionality of the mistaken belief in consent defence in so far as the defence can permit unreasonable mistaken belief in consent.

This note deals with the CALS litigation strategy concerning the Embrace case. CALS’ objective as a feminist public interest law clinic is to advocate for the rights of victims of sexual and gender-based violence through litigation, research and advocacy. The legal principle of a mistaken belief in consent, which is central to Embrace (and Coko), represents the continued limitation on the rights of victims of sexual offences (predominantly women) to see both equality in applying the law and justice through the conviction of perpetrators.

To present CALS’ litigation strategy concerning Embrace, the note presents the legal context around the mistaken belief defence. It then expands on CALS’ position around the framing of mistaken belief, which differs from the two applicants in Embrace. Finally, it presents CALS’ considerations that were required around entering the Embrace case as an applicant as opposed to entering as an amicus curia. The considerations included raising new legal issues and potential recourse, the principle of the low-hanging fruits, and potential liability around costs.

2. The mistaken belief in consent defence in South African law

The defence of mistaken belief in consent emerges from the common law along with the current definition of rape in terms of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 ( 2007) (SORMA). Under section 3 of the act, rape is defined as ‘[a]ny person (“A”) who unlawfully and intentionally commits an act of sexual penetration with a complainant (“B”), without the consent of B, is guilty of the offence of rape’.

Regarding criminal law in South Africa, an accused person may raise the defence that they had a mistaken belief that influenced their intention to commit a criminal offence. For example, in the case of Rex v. Hele (1947) the accused testified that he had made the mistake of believing that a man attacking him was still holding a knife when the man lifted his arm suddenly. The accused responded by opening his knife and stabbing the man to death. The court found that the accused had believed that he was acting in self-defence although mistakenly, and thus, the defence succeeded in this instance.

From the above case of Rex v. Hele, it can be summarized that if an accused person mistakenly believes they were justified in their actions under the circumstances, such as believing they were acting in self-defence, they may raise the defence of mistaken belief and potentially be acquitted. However, this defence is not available for all crimes and instead relates to crimes where the accused’s state of mind and belief or perception of the situation is relevant to proving the crime.

Concerning rape, an individual may claim they have a mistaken belief that consent was present, implying that they believed (although mistakenly) they were justified in their actions. Mistaken belief may be more difficult to assert if a victim of the rape does a great deal to struggle or resist; however, the defence is more often employed by the accused in cases where the accused and victim knew each other well or had a history of an intimate relationship.

As Illsey points out, courts are often more likely to presume that consent is present in relationships that are ‘closer’ or intimate than those characterized as being acquaintance or stranger rape cases (Illsey 2008: 64). Furthermore, Illsey highlights that in these closer relationships, there may be less likelihood of the victim offering significant resistance to the perpetrator. Thus, it is easier for an accused to argue that he mistakenly believed the victim was consenting to the encounter (Illsey 2008).

An example of the defence in relation to consent in the case of State v. Amos (2018). The accused, in a rape case, argued that he had mistakenly believed consent had been present, although the complainant had said no to the encounter. The court noted that the complainant did not physically resist the attack, nor did she protest loudly. The court found that the accused could possibly not have heard her and thought consent was present, and thus the state had failed to prove consent was not present beyond a reasonable doubt (State v. Amos 2018).

The problems associated with the successful use of the defence in cases of intimate partner rape, such as lack of conviction, become exacerbated when turning to the sheer number of these incidents committed. For example, a study by Gender Links found that almost 19 per cent of women participating in the study reported being raped by their intimate partner (Gender 2010). Londt concurs with the high rate of intimate partner rape and cites that specifically in the context of marriage, 14–25 per cent of women experience rape at least once during the relationship (Londt 2014).

South Africa experiences an extra level of challenge concerning the mistaken belief in consent defence and the possibility for an acquittal in so far as, unlike other jurisdictions, the mistaken belief in consent need not be reasonable.

The deplorable consequences of not having reasonability as a requirement can be seen in the English case of DPP v. Morgan (1975). Morgan, one of the accused, invited three of his junior colleagues home with him for them to have ‘kinky’ sex with his wife. Morgan explained to the men that his wife was ‘kinky’ in so far as she would feign protest yet was a willing participant to a sexual encounter.

Although Morgan and his wife were sleeping in separate rooms before the encounter, and even though she was sharing her bed with her 11-year-old child on that night, all three arrived at the home and ripped her from her bed. They pulled her to an adjoining room, where they raped her. She had not consented to the encounter and called out for her child to call the police. The court held that the men had believed Morgan, despite his wife’s actions, and thus, they were acquitted.

Following the case of DPP v. Morgan, the United Kingdom enacted the Sexual Offences Act of 2003, which required mistaken belief to be based on reasonable grounds. Unlike the United Kingdom, the unreasonable mistaken belief in consent defence persists in South African law. The case of Coko and Embrace highlights the problematic nature of the defence and emphasizes the burdens that prosecutors face to successfully prosecute perpetrators of rape (especially intimate partner rape). The problem extends beyond individual victims’ cases and must be seen as a systemic issue. In 2023, the World Population Review cited that South Africa was in the top five highest rates of rape globally (World Population Review 2023). The issue is compounded when it is considered that South Africa also has an extremely low conviction rate of approximately 8.6 per cent of rape cases reported to police (Machisa et al. 2018). Not only are women disproportionately affected by the high rates of rape, but they are also very unlikely to see their rapists successfully prosecuted through the criminal justice system in the country.

3. Consent is the issue—‘where there is a rotten root, there will always be a rotten fruit’

The facts of the Embrace case are resonate with both the Coko and Amos cases mentioned above. The first applicant is the Embrace organization, and the second applicant is the survivor of the Amos case. The facts form an important display of the effects of the defence in rape trials and emphasize the problems related there.

When CALS became aware of the Embrace case, it needed to decide whether to enter it as an amicus curiae or an applicant. Entering as an applicant or amicus has different potential impacts and risk levels, such as potential cost orders against the organization.

Although the various considerations will be discussed in full below, one of the decisions rested on the fact that CALS parted ways with the applicants’ approach in Embrace. CALS believed that the issue of constitutional rights limitation was not around the existence of the unreasonable mistaken belief in consent but rather with consent itself, in so far as consent remains an element of the rape offence.

For CALS the issue could be described as ‘where there is a rotten root, there will always be a rotten fruit’, in so far as it believed that the problematic mistaken belief in consent defence emanated from retaining consent as a definitional element of the rape offence, rather than merely focusing on the unreasonableness of the mistaken belief defence. CALS’s dominant argument is that retaining consent as an element of sexual offences is a form of unfair indirect discrimination under section 9 (the equality provision) of the South African Constitution (The Embrace Project, NPC v. Minister of Justice (CALS Founding Affidavit) 2023).

As stated above, the problem of retaining consent is primarily an equality one in so far as rape and other sexual offences in South Africa disproportionately affect women and girl children. A 2017 study found that 94.1 per cent of rape survivors were female, and 99 per cent of rape perpetrators were male (Machisa et al. 2018). The offence of rape is predominantly one that sees women as the victims, unlike other criminal offences, which may see men as the primary victims (assault) or have neutrality around victim gender (theft). Successful prosecution of rape requires an inordinate focus on the victim’s actions (women) rather than on the accused (men) (Phelps and Smythe 2011).

The excessive focus on the victim’s conduct emerges as a result of including consent as an element of the offence, as it creates the opportunity for the accused to assert that he was mistaken about the existence of consent (The Embrace Project, NPC v. Minister of Justice (CALS Founding Affidavit) 2023). A mistaken belief in consent is a complete defence which results in an acquittal of the accused.

In the rape and sexual offence trials, the focus of the court moves from the accused’s conduct. Instead, it focuses on whether the complainant sufficiently showed that she was not consenting for the accused not to have a mistaken belief that consent was present. Thus, the court will focus on how much the complainant ‘performed’ non-consent by (for example) struggling, screaming and fighting back to ascertain if the accused was confused about whether consent was present. This means the court implicitly requires the survivor to resist the violation actively. This is where resistance is a requirement for a rape offence in South African law (The Embrace Project, NPC v. Minister of Justice (CALS founding affidavit) 2023).

The requirements of consent in rape offences are part of a legacy of misogynistic laws that question women’s honesty and assume their ulterior motives for reporting sexual offences. Similarly, discriminatory approaches included the law of evidence’s cautionary approach. The cautionary approach was based on the grounds that there were ‘distinct’ and ‘peculiar’ dangers in accepting the evidence of complainants (women) in rape cases. Courts held that women complainants’ evidence must be approached with caution as women may suffer from ‘hysteria that can cause a neurotic victim to imagine things that did not happen’ and that women may claim to have been raped for ‘financial considerations when the complainant is pregnant’ or have ‘the wish to protect a friend or to implicate someone who is richer than him’ (Nowrojee 1995; Swemmer 2020).

Although South Africa has largely successfully amended its rape laws to exclude discriminatory approaches to women victims, the relic of consent and its discriminatory implications have lacked substantive consideration by the courts and legislature.

4. The considerations around entering as an applicant as opposed to an amicus curiae in Embrace

With CALS’ departure from the approach taken by the applicants in Embrace, the question remained whether applying to the court to enter as an amicus curiae or a co-applicant would be the most effective mode for achieving CALS’ objectives around a feminist approach to the eradication of discrimination in laws relating to sexual offences.

It is essential to note that some of the primary aims of feminist amici interventions are to make the law sensitive to the experiences of women and to show courts how laws affect the lives of women (Spies 2015). Feminist amici interventions can be used to present the ‘women question’ which looks at how existing legal standards and concepts may disadvantage women (Spies 2015).

The feminist intervention in cases dealing with gender-based violence and how the law acts in discriminatory ways against women victims is imperative as globally, gender-based violence disproportionately affects women, yet, more pertinently, in South Africa, the rates of gender-based violence are among the highest in the world. This is where, during the COVID-19 pandemic, the current president, Cyril Ramaphosa, decried that gender-based violence was the country’s second pandemic and that men in South Africa had declared war against women (Seleka 2020).

Historically, CALS has adopted a feminist approach in numerous ground-breaking Constitutional Court cases around sexual and gender-based violence. These include amicus curiae interventions in Carmichele v. Minister of Police, which established that police and prosecutors have a positive obligation to safeguard the rights of women in relation to sexual offences (Carmichele v. Minister of Safety and Security 2001); Masiya v. Director of Public Prosecutions, which found that the common law definition of rape was unconstitutional in so far as it failed to include the non-consensual penetration of the anus of a female person (Masiya v. Director of Public Prosecutions Pretoria 2007); L v. Estate of the Late Sydney Frankel which concerned a declaration that there is no prescription period for instituting prosecutions relating to any sexual offence; and Tshabalala v. State (2019), where the court found that the principle of common purpose applies to common law rape offences.

Considering the organization’s historical involvement as an amicus in many cases dealing with sexual offences and gender-based violence in the country, the organization felt duty-bound to join the cases of Coko and Embrace to advance jurisprudence in the interest of women.

It was important for CALS to consider the benefits and disadvantages of being a/the co-applicant or an amicus curiae when deciding whether to proceed with intervening in the case. Budlender explains that the primary difference between an amicus and an intervening party is that the amicus has an ‘interest’ in the proceedings yet has no right to participate. On the other hand, an intervening party has a ‘direct interest’ and may intervene in an ordinary manner as a matter of right (Budlender 2012).

Budlender’s reference to intervening parties requiring a ‘direct interest’ in the subject of the litigation is reflected under rule 12 of the Uniform Rule of Court (Uniform Rules of Court 2009) which are the rules which govern the high courts in South Africa. The section covers interventions as plaintiffs, defendants, and parties in applications.

Budlender states that the decision to proceed by way of intervention as a party rather than as an amicus is significant in three ways. First, an individual with a ‘direct and substantial’ interest in proceedings need not ask for permission to intervene, as is required for amici (Budlender 2012). Second, the intervening party has a procedural right to, for example, adduce evidence and present an oral argument. However, amici needs to be granted this right by the court (Budlender 2012). Finally, unlike amici, an applicant can recover costs from the other parties and may incur liability if costs are ordered against them (Hoffmann v. South African Airways 2000; Budlender 2012).

5. Amici versus applicants—raising new legal issues and potential recourse

In terms of the various rules of the court, amici are permitted to present arguments and, in some instances, may adduce evidence in a case (Children’s Institute v. Presiding Officer of the Children’s Court, District of Krugersdorp 2012). However, amici cannot raise a new cause of action without being a party to the litigation.

If an amicus curia wishes to raise a new issue, this new issue must be referred to within its application to intervene, and the decision will rest with the court. Budlender, however, asserts that it is unlikely that the amici will be successful as, more often than not, the introduction of a further or new issue will prejudice the other parties (Budlender 2012; VRM v. Health Professions Council of South Africa 2022).

Amici can, however, ask for certain forms of relief in cases where they have successfully intervened. Yet, the court decides whether to entertain and grant the proposed relief (Budlender 2012). The granting of the relief requested by amici can be seen in the court a quo in L v. Frankel ( 2016). The applicants’ relief included a request that the court declare that prescription periods for prosecuting sexual offences committed against children be declared unconstitutional and be done away with. However, the amicus curiae, Women’s Legal Centre, expanded upon the applicant’s relief and requested that the court extend the relief to include cases beyond child survivors and include any survivor of a sexual offence (L v. Frankel 2016). The court granted the expanded relief and included all victims of sexual offences.

Since amici are limited around raising new issues within a matter, CALS had to consider whether to enter as an amicus in the Embrace case and to then be confined to the issues as set out by the applicant (thus the issue of whether the unreasonable belief in consent defence is unconstitutional).

The primary problem associated with taking the root of applying as an amicus was that CALS believed that the applicants proceeded on the incorrect legal basis by focusing on SORMA for the emergence of the problematic mistaken belief defence instead of focusing on the defence emerging through the definitional elements of rape as requiring a lack of consent.

Even if the court granted the recourse set out by the applicants, CALS felt many issues emerging from the retention of consent as a definitional element would remain, such as requiring survivors to show beyond a reasonable doubt that they did not consent, and indirectly having courts endorse a resistance requirement to ascertain lack of consent. In many ways, CALS felt that the status quo, around both the secondary trauma endured by survivors during a criminal trial and low rates of prosecution, would persist despite having the unreasonable mistaken belief defence declared unconstitutional.

The advantages of applying to be a co-applicant and thus being permitted to raise new issues, such as the constitutionality of including consent as a definitional element of rape (and other sexual offences), needed to be balanced with other considerations, such as the principle of the ‘low-hanging fruit’ and cost implications, each of which will be discussed further below.

6. The principle of the ‘low-hanging fruit’

In litigation, the term ‘low-hanging fruit’ is often used to describe legal claims, issues, or arguments that are relatively easy to address, prove, or resolve compared to more complex or challenging aspects of a case. As ‘low-hanging fruit’ on a tree is easily reachable, these legal aspects are readily accessible and can be tackled with minimal effort or risk. Social justice organizations in South Africa often apply the principle to cases for these reasons but also due to limiting resource output for litigation and taking on cases that can benefit both a single client and the public.

In the case of Centre for Child Law v Director General: Department of Home Affairs, the High Court was asked by the first and second applicants to review a decision by the South African Department of Home Affairs not to register the birth of their (the applicants’) minor child (Centre for Child Law v. Director General: Department of Home Affairs 2021). The applicants approached the Department of Home Affairs to have it register their child’s birth, yet it was refused as the mother was undocumented and the couple were not married (the father was South African). The Department of Home Affairs’ reasoning was based on its reading of the Births and Deaths Registration Act 51, to only permits either parent to register a child’s birth if they are married, thus resulting in the situation whereby unmarried fathers cannot register their children’s births in the absence of the mother (or an undocumented mother) (Births and Deaths Registration Act 51 1992; Naki v. Director General: Department of Home Affairs, Eastern Cape High Court 2016).

The Centre for Child Law (CCL) intervened as a co-applicant in the High Court, broadening the scope of the application to include a constitutional challenge around the provisions of the act which gave rise to the Department of Home Affairs reasoning. The CCL was strategic in its approach as the parents’ (the first and second applicant) case was not complex and could be described as a ‘low-hanging fruit’. The parents’ application would require an administrative review of the decision by the Department of Home Affairs, whereas a claim of constitutional invalidity would require a rights limitation analysis and be referred to the Constitutional Court if found invalid for the court to confirm the invalidity (Constitution 1996, section 172). Thus, if successful, the parent’s claim would not require the Constitutional Court to weigh in, and thus, both time and resources would be spared.

In the High Court, the Department of Home Affairs did oppose the application; however, no answering affidavit was ever presented to contest the first and second applicants’ applications. Therefore, the parent’s application was categorized as an unopposed application (Naki v. Director General: Department of Home Affairs 2016). The court granted the applicants’ relief in so far as having the Department of Home Affairs decision set aside and having their child registered.

The question of CCL’s claims around the constitutional invalidity of parts of the Births and Deaths Registration Act remained for the court to deliberate upon. Due to a claim of constitutional invalidity, the court needed to engage in a section 36 rights analysis in terms of the South African Constitution in order for it to be satisfied that the provisions were, in fact, not justifiable (Constitution 1996, section 36). Furthermore, upon the court finding that the provisions were, in fact, unjustifiably limiting individuals’ rights, the finding then needed to be confirmed by the Constitutional Court.

Since the parents’ recourse was granted by the High Court, only CCL was required to be a party to the confirmation of invalidity hearing at the Constitutional Court. Thus, the parents received the recourse they desired and would not have to wait for the entire legal process to be finalized within the Constitutional Court. Therefore, saving them time, and the costs associated with litigation.

In the above case, it was a win-win situation whereby the parents were successful in attaining their recourse, and CCL was successful when the Constitutional Court confirmed the High Court’s finding of invalidity. Centre for Child Law v Director General: Department of Home Affairs shows how adopting a ‘low-hanging fruit’ approach to litigating can also open the door to introduce more complex and strategic claims with the scope of recourse extending beyond the parties to the matter.

In the instance of the Embrace case, the ‘low-hanging fruit’ takes on a different form than in the case above, as the applicants’ case does focus on the limitation of rights, and if found to be an unjustifiable limitation, would need to be referred to, the Constitutional Court for confirmation. Focusing on the substance of the applicants’ case in Embrace, it can be argued that the recourse in and of itself is not controversial or radical and has more than a reasonable prospect of success.

As set out above, other jurisdictions, such as the United Kingdom (after DPP v. Morgan), have already rectified their legislation to omit the defence of unreasonable mistaken belief. Section 39(1)(c) of the Constitution of South Africa states that when a court, tribunal or forum interprets the rights in the Bill of Rights, they may consider foreign law. Thus, the court has a plethora of examples of jurisdictions (UK, USA, Australia, New Zealand, Canada,) that have moved away from the framing of the defence to only include reasonable mistaken belief (Constitution 1996; The Embrace Project NPC v. Minister of Justice and Correctional Services, High Court of South Africa, Gauteng Division, Pretoria (Applicant 1 and 2 Founding Affidavit 2022).

Although the existence of other jurisdictions adopting this approach does not imply that the High Court and Constitutional Court in South Africa will necessarily find unreasonableness to be constitutionally invalid, the movement by other democratic states to adopt the approach is reasonably persuasive. Furthermore, as set out previously, the furore that emerged within the country in relation to the High Court’s decision to acquit the perpetrator in Coko v. State based on his unreasonable mistaken belief in consent will continue to serve as advocacy around the issues emerging from retaining the defence, which members of the judiciary may be aware of or come to be aware of.

In contrast, the relief requested by CALS can be seen as ‘radical’ in so far as only a handful of jurisdictions currently adopt an approach to defining rape offences without the inclusion of a lack of consent; these include Eswatini, Lesotho and Namibia (The Embrace Project NPC v. Minister of Justice and Correctional Services, High Court of South Africa, Gauteng Division, Pretoria (CALS Heads of Argument) 2022). Despite the limited number of jurisdictions adopting this approach, the arguments around adopting it have been prominent in feminist scholarship (MacKinnon 2016; Schwikkard 2021; Omar 2022).

Furthermore, the relief CALS envisions is often perceived as ‘radical’ by individuals not familiar with feminist approaches to developing jurisprudence; this is captured in the response to CALS’ application to intervene as an applicant by the first and second applicants. The applicant, upon receiving CALS’ application to intervene as an applicant, (incorrectly) asserted that removing consent from the definition of rape would create a reverse onus, where the accused would unfairly have the burden of proving his innocence (The Embrace Project NPC v. Minister of Justice and Correctional Services, High Court of South Africa, Gauteng Division, Pretoria, (1st and 2nd Applicant Explanatory Affidavit) 2022).

In summary, the first and second applicants’ claims or recourse are not contentious and will most likely be easily achieved through litigation, whereas CALS faces a more complex legal challenge. The benefit of having the first and second applicants’ cases as a ‘low-hanging fruit’ is that, even if CALS is ultimately unsuccessful, the country will see some form of positive change in sexual offences law, which will benefit some survivors of sexual offences.

Finally, the first and second applicants’ cases may be rendered moot by the decision of the SCA in State v. Coko, by which CALS claims would not be affected. Although it has been previously stated that the SCA in State v. Coko will not be asked directly to decide on whether the unreasonable mistaken belief in consent defence is unconstitutional, the court may find that the common law and statutory law must be read in such a way or developed as to prohibit unreasonableness. Courts in South Africa have an obligation to develop the law to give effect to rights within the Bill of Rights, or alternatively to cure the limitation of rights under the Bill of Rights (Constitution 1996, section 8). This is where section 8 of the Constitution states that in order to give effect to a right in the Bill of Rights, a court must apply or develop the common law to the extent that legislation does not give effect to that right.

Similar to Centre for Child Law v Director General: Department of Home Affairs, the first and second applicants in Embrace would, in having the case be rendered moot, achieve their requested relief. Although this relief would have been achieved through an indirect way by the court in State v. Coko.

If State v. Coko renders the first and second applicants’ claims moot, then CALS, like CCL in Centre for Child Law v. Director General: Department of Home Affairs, would still have the opportunity to proceed in the High Court and the Constitutional Court.

7. Liability around costs

Generally, it is accepted that amicus curiae are not awarded costs and are not liable for costs, although in principle, in terms of the various rules of court costs, orders for and against amici could be ordered (Budlender 2012). Although the benefit of intervening as an amicus curiae may generally not attract an adverse cost order, the absence of costs awarded to amici can have negative consequences for individuals and donor-funded civil society organizations that wish to intervene. For example, for an ordinary amicus application (one that does not require evidence from various experts), CALS estimates costs at between 60,000 and–80,000 Rand (3156.28 to 4208.37 US dollars) per court (thus, if CALS litigates in the High Court and then the case is referred for confirmation to the Constitutional Court the costs would double).

The lack of costs in favour of amici implies that civil society organizations are largely limited in which interventions they can pursue, thus limiting the impact on the quality of human rights (especially feminist) jurisprudence in the country.

In contrast, intervening as a co-applicant in a case creates the opportunity for the party to benefit or recoup costs. With litigation being expensive, it is especially important for donor-funded civil society organizations to benefit from recouping costs around engaging in litigation, as the funds can be used to pursue further litigation and assist with capacity needs. There is a certain level of protection from cost liability for parties that litigate against the state based on the aim of asserting a right in terms of the Bill of Rights, which has become known as the ‘Biowatch principle’ (Biowatch Trust v. Registrar Genetic Resources 2009). In Biowatch, the Constitutional Court held that having cost orders against those individuals who would like to assert a right against the state could be ‘unduly chilling to constitutional litigation’ (Biowatch Trust v. Registrar Genetic Resources 2009, para 60).

Unfortunately, in recent years, the Biowatch principle has been abandoned by some courts, such as in the notorious 2016 case of South African History Archive Trust v. South African Reserve Bank (2020), where the applicants (SAHA) applied to the High Court for the review of the respondent’s decision not to permit them access to documents pertaining to corruption under Apartheid and the utilization of public and private entities to externalize funds from South Africa. The court dismissed the SAHA’s appeal and ordered them to pay the costs of the respondents (including the costs of two counsels). With a considerable cost order against them, the SAHA faced the prospect of the closure of their organization. However, in 2020, the SCA overturned the High Court decision and cost order and awarded costs in favour of the organization (South African History Archive Trust v. South African Reserve Bank 2020).

CALS considered the ordinary costs associated with intervening as an amicus curiae combined with the considerations set out above around amicus versus applicant interventions. CALS decided to intervene as an applicant as the benefit in terms of the potential to raise new issues, rely on the ‘low-hanging fruit’, and potentially recoup costs outweighed the benefits of applying to intervene as an amicus curia (broadening recourse and cost immunity).

8. Conclusion

In conclusion, the legal milieu concerning sexual offences in South Africa is dynamically evolving, propelled by feminist interventions aimed at safeguarding the diverse rights of survivors enshrined in the Bill of Rights. The Embrace case stands as an important opportunity to offer a strategic avenue for effecting transformation in sexual offence laws, not only with regard to the unreasonable mistaken belief in consent defence but also concerning the prospect of eliminating consent as an obligatory element within the legal parameters governing sexual offences.

This note reflected CALS’s decision to intervene in the Embrace case as a co-applicant instead of entering as an amicus curiae. CALS’ considerations included focusing on the ability of applicants to raise new issues, the principle of the ‘low-hanging fruit’ and potential cost awards versus cost liability for applicants as opposed to amici in constitutional rights litigation in South Africa.

At the time of writing, CALS had intervened on behalf of an organization as an amicus curia in the SCA appeal case of State v. Coko and were waiting for judgment to be handed down by the court. CALS had also successfully intervened as a co-applicant in Embrace and was waiting for a date to be heard in the Pretoria High Court.

Conflict of Interest

None declared.

Funding

None declared.

Author notes

Head of the Gender Justice Programme, Centre for Applied Legal Studies, University of the Witwatersrand, Johannesburg, South Africa.