sexual health and human rights in the african region - The ICHRP

necessity, international human rights standards, as the yardstick. Section 39(2) of
the Constitution is an important enabling instrument in this regard. However,
the refusal by the majority of the Court to extend rape to anal penetration of
males was a regressive application of constitutional equality. It shows a
reluctance or inability by the Court to apply the right to equality consistently in
part as a result of gender stereotyping. It shows reluctance or inability by the
majority to appreciate, as the minority of the Court does, that men are also raped
because of the gendered nature of rape. The refusal by the majority to extend
rape to cover male victims also shows that in some cases, courts adopt a
restrictive and selective view of the doctrine of separation of powers, and refrain
from partaking of what they see as usurping the prerogatives of the legislature so
as to leave the initiatives for major reforms to the legislature, but at the cost of
protecting human rights.
[27] The ruling in Masiya has been superseded by the Criminal Law (Sexual Offences
and Related Matters) Amendment Act of 2007 (Sexual Offences Act) which is
discussed below. The conduct of the appellant now constitutes rape under
section 3 of the Sexual Offences Act of 2007.
[28] The South African Sexual Offences Act of 2007 amends laws relating to sexual
offences in a comprehensive manner, including the law relating to rape at both a
substantive as well as procedural level. The Act was preceded by
recommendations of the South African Law Reform Commission relating to
substantive as well as procedural aspects of sexual offences. 581 The reasons for
the reform of sexual offences are captured in the preamble to the Act. In essence,
the reasons are:
to respond to the prevalence of sexual offences which has now become a ‘deepseated
dysfunctionality’ of South African society;
to take into cognizance that women and children are particularly vulnerable to
sexual offences and to be sexually exploited, inter alia, in prostitution;
to remove discriminatory anomalies between common law and legislation
uniform in its treatment of sexual offences so as to render them uniform;
to comply with South Africa’s international obligations under international law,
including the Convention on the Elimination of All Forms of Discrimination
Against Women, and the Convention on the Rights of the Child which protect
women and children against abuse and violence; and
to render common law and legislation on sexual offences compliant with the
country’s Constitution which, inter alia, guarantees the rights to equality,
581 South African Law Commission Sexual Offences: The Substantive Law Project 107 (1999) Pretoria: South
African Law Commission; South African Law Commission Sexual Offences: Process and Procedure Project
107 Pretoria: South African Law Commission (2002); South African Law Commission Sexual Offences
Against Children Project 108 Pretoria: South African Law Commission (1997).
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