By controversially setting aside a rape conviction, the high court “failed to consider the overwhelming ... evidence” against the accused rapist that should have left him imprisoned for his seven-year sentence.
This was the argument made by the National Prosecuting Authority (NPA) on Tuesday before the Supreme Court of Appeal (SCA), in seeking to have the original rape conviction and sentence reinstated for Loyiso Coko.
In 2021, Makhanda high court acting judge Tembeka Ngcukaitobi and judge Nyameko Gqamana set aside the rape conviction of Coko, a paramedic. Coko had been found guilty in 2020 by a magistrate for raping his then girlfriend and sentenced to seven years’ imprisonment.
Coko successfully appealed to the high court, which found that his then girlfriend had tacitly consented to sex, despite her saying no to it. The court found that as she had engaged with him physically, there were grounds for him to believe she tacitly consented to sexual intercourse.
Since 2021, many have expressed outrage at the judgment.
Some experts were concerned that, if left unchallenged, the ruling would embolden perpetrators by perpetuating the mistaken view that foreplay counts as irrevocable consent for penetrative sex. According to the Women’s Legal Centre (WLC), the high court’s judgment “will only serve to perpetuate the continued violation of women’s rights on a daily basis”.
Coko said he “genuinely believed” he had obtained tacit consent from the woman, due to them being physically intimate. This despite knowing she did not want to have sex before marriage and had repeatedly indicated so.
According to the Makhanda high court, the NPA failed to show Coko’s belief that “there was at least tacit consent was false”.
Medical experts
The NPA appealed against the high court’s finding to the SCA.
The NPA said that, in 2020, at the first court before the magistrate, the state had brought a lot of evidence from many witnesses, including medical experts. In contrast, Coko was his only witness.
The NPA said “he admitted to pertinent elements of the offence of rape”, such as knowing sex was “not part of the plan”. He also testified that “[his then girlfriend] was shocked” after the incident.
The NPA argued there was no basis to rule Coko believed there was tacit consent: his then girlfriend had explicitly said no, indicated no sex before marriage, and he further admitted he acted “in the heat of the moment”.
Additionally, “the fact that a woman did not physically resist the intercourse is not directly relevant”, the NPA argued. “Consent to one sexual act does not constitute consent to another sexual act.” Importantly, in law, “there is no place for implied or tacit consent”.
The NPA made further arguments in terms of Coko’s various admissions that the high court overlooked.
In response, Coko argued the high court was correct and explained again how his then girlfriend’s physical intimacy led him to believe he had consent.
He also took issue with the NPA filing its appeal late.
Many women’s advocacy groups, such as the WLC, also made submissions to the SCA.
“There is no room in our constitutional dispensation,” the WLC said, “to excuse reckless ignorance of the absence of consent.” The WLC said the judgment was a “setback for rape victims”.
The Initiative for Strategic Litigation in Africa provided various data to the court, noting that “criminal justice systems remain a site for discrimination against survivors due to the weight of rape myths and stereotypes”. Victims feel shame and this judgment would only add to continued victimisation, it said.
The Commission for Gender Equality said the facts clearly suggested rape had occurred. “Having control over who sexually touches or penetrates one’s body,” the commission said, “lies at the core of human dignity and autonomy.” Courts must uphold this.
The SCA has reserved judgment. If the SCA agrees with the NPA, Coko will find himself back in prison but possibly for a different sentence term.
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