South Africa’s judiciary has found itself at the heart of a national conversation, with two major events in September 2025 highlighting the immense challenges—and opportunities—facing the country’s courts. On one hand, the Constitutional Court is grappling with whether existing consent laws in the Criminal Law (Sexual Offences and Related Matters) Act are constitutional, a decision that could reshape the legal landscape for victims of sexual violence. On the other, the 2025 Judges Matter Prize for Excellent Writing on the Judiciary has spotlighted the next generation of legal minds, who are wrestling with the meaning and preservation of judicial independence amid mounting political turbulence.
On Thursday, September 25, the Constitutional Court heard oral evidence in a pivotal case that could have far-reaching consequences for South Africa’s approach to sexual offences. The Embrace Project, a non-profit dedicated to combating gender-based violence, together with rape survivor Inge Holzträger, challenged the constitutionality of sections of the 2007 Act that define consent in sexual offences—most notably, rape.
Holzträger’s own harrowing experience in 2018, when she was raped by a man she met online, was at the center of the case. Despite her testimony that she was “shell-shocked and in a trance” and had “frozen” due to peritraumatic stress, the trial court acquitted the accused. The reason? The accused claimed he believed there was consent, and the court accepted this subjective belief—even though Holzträger had not physically resisted or loudly protested.
According to oral arguments reported by RON, Nasreen Rajab-Budlender SC, representing Embrace and Holzträger, told the Constitutional Court that the relief sought would, to some extent, reduce instances of rape. However, she was candid about the limitations of legal reform alone, noting, “We know that there are all of those reasons why our rape statistics are so high. We are not asking the court to fix the entire problem. This court can’t do that. We know that courts can only do part of the work and there is a huge amount of social work that must be done to fix the other parts of this problem.”
Rajab-Budlender SC emphasized that meaningful consent should be established through clear, caring communication—without legal jargon or clinical detachment. “It’s the application of this Act that this context of gender-based violence, finds itself squarely in the court system…It will change the way in which individuals behave because it will require them to take steps to determine consent,” she submitted. She suggested simple, direct questions like “is this okay? Are you okay?” could make a world of difference.
The applicants argued that the current law undermines the rights of victims and survivors—including their rights to equality, dignity, privacy, bodily and psychological integrity, and freedom and security of the person. As things stand, an accused can avoid conviction if they wrongly believed the complainant consented—even if that belief was unreasonable. This, the applicants said, places an almost insurmountable burden on victims, especially when sexual offences usually occur in private and the victim’s testimony is often the only direct evidence available.
As Embrace wrote in its submissions: “Rape is perhaps the most horrific and dehumanising violation that a person can live through and is a crime that not only violates the mind and body of a complainant, but also one that vexes the soul. This crime is an inescapable and seemingly ever-present reality and scourge on the nation and the collective conscience of the people of South Africa.” Oral evidence in the case is ongoing, and the Constitutional Court’s eventual ruling could mark a significant turning point in how consent is understood and prosecuted in South Africa.
Meanwhile, a different but related conversation about justice and the rule of law was taking place at the University of Cape Town on September 10. There, the 2025 Judges Matter Prize for Excellent Writing on the Judiciary recognized four outstanding student essays—each delving into the theme “Court in the Crossfire: Judicial Independence amidst Political Turmoil.”
According to Judges Matter, the competition, launched in 2021, aims to foster critical thinking and engagement with pressing issues facing South Africa’s judiciary. This year’s winners—Prince Muhomba and Anopa Murambiwa in the postgraduate category, and Lukhona Marele and Ayanda Khoza among undergraduates—offered nuanced analyses of the threats to and opportunities for judicial independence.
First-prize postgraduate winner Prince Muhomba’s essay warned that political appointments to the Judicial Service Commission (JSC), presidential discretion in appointing the Chief Justice, opaque case allocations, and sluggish disciplinary mechanisms all threaten to reduce judges to “political pawns.” Drawing on comparative examples from Zimbabwe, the United States, Hungary, and Poland, Muhomba argued for urgent reforms: depoliticizing the JSC, codifying transparent appointment and case allocation procedures, strengthening disciplinary mechanisms, and granting the judiciary financial and administrative autonomy.
Second-prize postgraduate winner Anopa Murambiwa tackled the phenomenon of “lawfare” in South Africa, distinguishing between legitimate judicial review of political disputes and the abuse of court processes for political ends. Murambiwa called for stricter sanctions against lawyers who misuse court procedures and advocated for a JSC free from political interference.
Among undergraduates, Lukhona Marele traced the judiciary’s transformation from apartheid’s rubber-stamp courts to today’s constitutional guardians. Marele highlighted ongoing threats: executive non-compliance with court orders, politicized appointments, and public attacks on judicial impartiality. Marele’s essay proposed reforms such as enhanced administrative autonomy, transparent appointments, and robust ethical training for judges.
Ayanda Khoza’s essay, also recognized, underscored the vital role of judicial independence in sustaining democracy. Khoza warned of the risks posed by political interference, public and media attacks, and opaque appointment processes, arguing for reforms to build strong public trust in the judiciary. “Judicial independence is never a luxury but is a necessity. It is the foundation of the rule of law, which safeguards against abuse of power and is the greatest guarantor of democracy,” Khoza wrote.
The winning essays drew lessons from countries as diverse as India, Colombia, Venezuela, Turkey, and Poland—demonstrating that the struggle to preserve judicial independence is a global one. South Africa’s own history, from apartheid to constitutional democracy, serves as a powerful reminder of how quickly judicial legitimacy can be eroded when courts are co-opted by political power.
Both the Constitutional Court’s ongoing deliberations on consent and the Judges Matter competition’s focus on judicial independence reflect a nation wrestling with how best to protect the vulnerable and safeguard the rule of law. As the legal community and broader public await the Constitutional Court’s ruling, one thing is clear: the future of South Africa’s democracy depends on a judiciary that is both independent and just, capable of responding to society’s most urgent challenges with integrity and compassion.
