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

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.