SCA overturns rape acquittal
Conviction upheld of a man who continued sex act with his girlfriend against her will. By Tamsin Metelerkamp
The Supreme Court of Appeal (SCA) has overturned the High Court in Makhanda’s acquittal of a man who had been convicted of raping his girlfriend. In October 2021, Judge Nyameko Gqamana and Acting Judge Tembeka Ngcukaitobi overturned the rape conviction of Loyiso Coko, who had been found guilty of raping his girlfriend. The basis for their judgment was Coko’s argument that the foreplay he engaged in with his girlfriend indicated she had tacitly consented to sex.
But the SCA found that the high court had erred in acquitting Coko. In a judgment delivered on 24 April, it upheld the National Prosecuting Authority’s appeal against the acquittal and reinstated Coko’s conviction.
“Were the conclusion reached by the high court to prevail, leading to the dismissal of this appeal, this would not only be a perverse incentive to unscrupulous persons taking advantage of their victims, but also have the effect of frustrating the speedy realisation of the constitutional objective of gender equality, which is one of the foundational values of our constitutional order.
“In addition, this would also entrench patriarchal attitudes, stereotypes and mindsets that the rights of women and children, in particular, to their dignity and physical integrity count for little and can therefore be gratuitously violated with impunity.”
The high court’s acquittal of Coko in 2021 caused a public outcry. The Soul City Institute for Social Justice issued a statement saying that the judgment showed “the extent of South Africa’s rape culture crisis”.
At his initial trial in a magistrates’ court, Coko pleaded not guilty to the charge of rape. But he was found to have unlawfully and intentionally penetrated the complainant and sentenced to seven years in prison.
The factual background to the case was laid out in the SCA judgment. Coko’s girlfriend, a university student in her early twenties, was a virgin who had, more than once, told him she was not ready to engage in penetrative sex.
On the day of the rape, the woman had agreed to spend the night with Coko at his apartment with the stated caveat that this did not mean she would engage in sexual intercourse. During the evening, they engaged in foreplay, which she consented to. She told the court that Coko then raped her while she tried to push him off and told him that he was hurting her and should stop.
Coko acknowledged that the woman said that it was hurting, but claimed she did not say anything else or try to push him off.
After he was found guilty, he unsuccessfully applied to the regional court for leave to appeal against his conviction, before turning to the high court. There, a judgment written by Ngcukaitobi, with which Gqamana concurred, concluded that his conviction was unsustainable.
The SCA emphasised in its judgment that consent to foreplay did not constitute consent to an act of penetration. It upheld the trial court’s finding that something more than body language was needed to establish consent. It also drew attention to the complainant’s testimony that she pushed Coko away and told him he was hurting her when he forced himself on her.
“Logic dictates that even in circumstances where consent has been given to a specific sexual act, it may also be withdrawn during the sexual act to which the consent relates… Even on this basis, we conclude that the crime of rape was established.”
The SCA concluded that rape was proved beyond a reasonable doubt in the case and that the high court’s interference with the findings of the trial court was “unwarranted”. However, as part of its ruling, it remitted the question of Coko’s sentence to the high court for it to determine whether the seven-year sentence imposed by the regional court was appropriate.