Previous consistent statements in sexual offences in South Africa: Interpreting sections 58-60 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act through their drafting history and relevant case law

by | Dec 2, 2025 | SACJ, SACJ V38 I2 2025

ARTICLE

Previous consistent statements in sexual offences in South Africa: Interpreting sections 58-60 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act through their drafting history and relevant case law

Author: Jamil Ddamulira Mujuzi

ISSN: 1996-2118
Affiliations: LLB (Makerere) LLM (UP) LLM (UFS) LLD (UWC), Professor of Law, Faculty of Law, University of the Western Cape
Source: South African Journal of Criminal Justice, Volume 38 Issue 2, p. 217-244
https://doi.org/10.47348/SACJ/v38/i2a2

Abstract

Section 58 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act requires courts to admit previous consistent statements relating to sexual offences. However, it does not explain the purpose for which those statements should be admitted. Section 59 prohibits courts from drawing an inference from the victim’s delay in reporting a sexual offence. Section 60 abolishes the cautionary rule in cases of sexual offences. Academics and courts have disagreed on the probative value of previous consistent statements. Relying on the drafting history of section 58, the author argues that a previous consistent statement can be admitted to corroborate the complainant’s evidence. The author also argues that there are circumstances in which a previous consistent statement is inadmissible; there are instances in which a court can draw a negative inference from the delay in reporting the sexual offence; and that although the cautionary rule was abolished with regard to sexual offences, courts are still required to treat with caution the evidence of victims of sexual offences who are children or single witnesses.

Sex+Lies+HIV=Rape? Understanding deceptive sex in light of S v Conga

by | Dec 2, 2025 | SACJ, SACJ V38 I2 2025

ARTICLE

Sex+Lies+HIV=Rape? Understanding deceptive sex in light of S v Conga

Author: Mary Nel

ISSN: 1996-2118
Affiliations: BA(Law) LLB LLM LLD (Stell) MPhil (Criminology) (Cantab); Senior lecturer, Department of Public Law, Faculty of Law, Stellenbosch University
Source: South African Journal of Criminal Justice, Volume 38 Issue 2, p. 245-269
https://doi.org/10.47348/SACJ/v38/i2a3

Abstract

On 25 September 2024 Leon Santos Conga, who infected his former partner with HIV, was sentenced to life imprisonment for rape and attempted murder by the Pretoria Magistrate’s Court. The basis for the rape conviction was that he deceived his partner into believing that he was HIV-negative, and she would not have had sex with him had she been aware of his HIV-positive status. This is the first HIV-related conviction for rape ‘committed under false pretences or by fraudulent means’ in terms of section 1(3)(c) of SORMA. Using the Conga judgment as a point of departure, this contribution critically examines the current South African legal position on deceptive sex, including the rationale for criminalising deceptive sex as rape, and each element of the crime as affected by HIV-related deception in particular. It concludes that while the Conga ruling may be a legally correct expansion of the application of section 1(3)(c) in principle, there are persuasive policy reasons for not following its approach in future owing to the wider societal cost of criminalising HIV-related deception as rape, including exacerbating stigma against HIV-positive individuals and negative public health ramifications.