Rape is non-consensual, penile penetration of a woman, anal or vaginal, the constitutional court ruled yesterday.
But it refused to find anal penetration of a man was rape. The court said legislators needed to rule on this aspect of the law.
"It can hardly be said that non-consensual, anal penetration of males is less degrading, humiliating and traumatic [than that of females]." Justice Bess Nkabinde found in a majority judgment.
"Focusing on females should not be seen as (being) insensitive to the trauma suffered by male victims of anal violation, especially boys of the age of the complainant in this case."
The challenge was brought by Fanuel Sitakeni Masiya, 44, who was charged with raping a nine-year-old girl in 2004.
The child had been anally penetrated.
The common law definition of rape was non-consensual vaginal sexual intercourse.
But, the Graskop regional court said: "The anal orifice is no less private, no less subject to injury and abuse than the vaginal orifice, and its sexual penetration no less humiliating." - Sapa