Sexual assault is a pressing and prevalent concern in South Africa. It is estimated that over 40% of South African women will be raped in their lifetime. According to the Q1 crime statistics 2021/2022 statistics released by Police Minister Bheki Cele, 10,006 people were raped in South Africa between April and June 2021.

“A sample of 5,439 rape cases revealed that 3,766 of the rape incidents took place at the home of the victim or the home of the rapist,” said Cele. The criminal justice system cannot afford to sleep when rape is so rampant. The National Prosecution Authority (NPA) and the courts must help combat the rape pandemic.

Unfortunately, not all the courts in the country grasp the gravity of the prevalence of rape and its devastating impacts. For instance, on 8 October 2021, the high court sitting in Makhanda appeared ignorant of the scourge of rape culture in South Africa. 

The regional court in Makhanda had sentenced one Loyiso Coko, then aged 23, to seven years imprisonment for raping a Rhodes University postgraduate student in July 2018 at his home.

However, in the case of Coko v The State (CA&R 219/2020) [2021], the high court failed to show a higher understanding and legal competence to appreciate that rape is the darkest form of violation of bodily integrity of women. Shocking is that the judgment, which was penned by one of the country’s prominent legal eagles, Acting Judge Tembeka Ngcukaitobi, with Judge Nyameko Gqamana concurring, overturned the regional court conviction. The high court described the regional court judgment as making “hyperbolic findings” and that its findings “have no basis from the record, and constitute speculative conjecture”.

Interestingly, the high court judges themselves came up with what can only be termed a ridiculous and nonsensical judgment, accompanied by a flawed application of the law on the crime of rape: “No force or threats were used to coerce the Complainant [who is the same age as the Appellant],” said Judge Ngcukaitobi [par: 94].

So, according to this court, without force or threats, there can never be a crime of rape.  Since when under the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 is force or threat of force a requirement in rape cases? Perhaps the respected judges must be assisted about the proper position of the law on rape concerning force or threats issue by quoting from the Supreme Court of Appeal in S v SMM 2013 (2) SACR 292 (SCA), stating that:

“It is necessary to reiterate a few self-evident realities. First, rape is undeniably a degrading, humiliating and brutal invasion of a person’s most intimate, private space. The very act itself, even absent any accompanying violent assault inflicted by the perpetrator, is a violent and traumatic infringement of a person’s fundamental right to be free from all forms of violence and not to be treated in a cruel, inhumane or degrading way…” [par:17].

The high court in the Coko case seemed to be standing firmly on the side of the accused. The judges stated that “on the Complainant’s version, there was no manifestation of any refusal of consent between the kissing, the oral sex and the penetration. The evidence was that it was only after the penetration that the Complainant experienced pain and told the Appellant to stop as he was hurting her. The Appellant accepted this but said he would stop and then continue.” [par:94].

The court in essence supports Coko’s assertion that foreplay was a tacit consent to sexual intercourse that could not be withdrawn. This line of reasoning by the court has caused a lot of consternation. The International Commission of Jurists – Africa stated it was appalled that Ngcukaitobi had penned this retrogressive judgment in the fight against gender-based violence (GBV): “In a country with high rates of GBV and femicide, equating foreplay to consent is inherently harmful and ignores the realities of power dynamics between partners.”

Any form of foreplay, according to the high court’s judgment, is likely to be construed as a defence against rape. What is bizarre about the judgment is that it ignores the fact that the accused admitted that the victim told him that she did not wish to have penetrative sex. Instead, the court seems to rely on the gibberish by the accused that he had genuinely believed from her later conduct and body language that she was consenting to penetrative sex despite her earlier refusal of penetrative sex.

“I cannot hold that the State proved that the version of the Appellant that he genuinely believed there was at least tacit consent was false beyond a reasonable doubt,” said Ngcukaitobi. The judgment simply implies that forced penetrative sexual intercourse that begins as a consensual act or as part of consensual foreplay can be anything but rape. Foreplay rape is no less harmful than other forms of rape. Justifying it as not being rape will embolden perpetrators of rape and rape culture in South Africa. With the judge suggesting that foreplay is consent to sex, what is to follow?

Even stranger is the argument by the two judges that the issue of consent and intention were interrelated: “The sexual penetration is a common cause. The defence of the Appellant was that he had no intention of having sex with the Complainant without her consent. He admitted that the consent was not explicitly given. His defence is that he genuinely believed that the consent had been given by the conduct of the Complainant.” [par:79]

The judges created an undesirable ambivalence about consent and intention in our law. The real and prevailing law is that consent must be present throughout sexual activity.

The court disappointingly failed to understand that “No means no”. It must be emphasised: No means no, no matter when you say it. 

A party to sexual intercourse has the right to withdraw consent at any stage. Any continuation of penetrative intercourse after the consent has been withdrawn will amount to rape. The US case in People v John Z., 60 P.3d 183, 184 (Cal. 2003) puts it more succinctly: “[A] withdrawal of consent effectively nullifies any earlier consent and subjects the male to forcible rape charges if he persists in what has become non-consensual intercourse.”

Even in South Africa, there is no grey area about the issue of consent. Our law is clear that consent must be present throughout sexual activity. Section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, under which Coko was charged, defines the offence of rape as follows: “Any person [‘A’] who unlawfully and intentionally commits an act of sexual penetration with a Complainant [‘B’], without the consent of B, is guilty of the offence of rape.” 

The victim, in this case, testified that she pleaded with the accused to stop penetrative sex throughout this ordeal. “He wouldn’t stop and he just carried on shoving it in and out and kept saying sorry in my ear,” said the victim.

If this is not “No” enough for the high court, then nothing will ever satisfy the judges’ standards or requirement for “No” in rape cases.

Sadly, the judgment also embraces prominently the notion of expressive withdrawal of consent requirements, which would support the argument that “she really wanted it despite what she said or how she reacted”.  According to the court, “the main defence of the Appellant was that he genuinely believed that consent had been given. If he knew that consent had been withheld, he would not have proceeded with the intercourse.” [par:83].

The judgment also impliedly rejects the long-standing jurisprudence of post-penetration withdrawal of consent and accepts the notion of generalised consent in the law of rape that is not the law in South Africa. The court accepting the explanation that the accused reasonably believed that the victim consented to penetrative sex enters into an unconstitutional terrain of creating a presumption of consent that the victim must disprove. Once more, our law, through the decision, re-victimised the victim by expecting her to negate the feeble excuse by the accused that he thought that she consented to penetrative sex.

Outstanding from this judgment is the court’s application of the standard of reasonable doubt, and its conclusion that the state failed to prove beyond reasonable doubt that rape was perpetrated: “I cannot hold that the State proved that the version of the Appellant that he genuinely believed there was at least tacit consent was false beyond reasonable doubt,” said Ngcukaitobi [par:91].   

There seems to be a biased application of reasonable doubt which runs the risk of trivialising the rape victim’s trauma. The red flag from this judgment is that the court has gone wild with the understanding of tacit consent and the contractual concept of consent. The standard for consent applied by Ngcukaitobi is erroneous to an extent that it seeks to suggest that consent is finite in time and perpetuates gender bias.

Further, the judgment fails to appreciate the prevailing law of a continuum-based idea of consent and that consent can be withdrawn at any time during sexual interaction(s).

This judgment is not only an obstacle to access to justice for women, it is also a dangerous stereotyping that will affect victims’ right to a fair trial in cases of sexual violence, particularly women.

My main takeaway from this judgment is that it undesirably presented itself as precedence to the principle that consent to foreplay automatically includes consent to penetrative sex. Men and women who are soft targets of rape perpetrators must be warned that their participation in foreplay may be abused as infinite consent to penetrative sex by perpetrators of rape.

Rapes normally do not occur in open public, and it will be the word of the perpetrator against that of the victim. This judgment is an Achilles’ heel in our case law. It is a bad stain on our fight against GBV, and it must never be allowed to exist for too long without it being appealed by the National Prosecuting Authority because it is dangerous and fallacious jurisprudence that excuses GBV.

Ngcukaitobi’s assertion that consent and intention were interrelated should never be used to allow as justification and absolution from the crime of rape an accused person who claims to have been confused that consent was not given or was withdrawn. If there was confusion as to whether the victim consented to penetrative sexual activity, the accused person should have stopped the penetration to clear the confusion. 

The court showed a great deal of incompetence about the understanding of consent and intention in rape cases. The simplest legal definition of the word “consent” in rape crimes means concurrence of wills concerning every aspect of sexual activity. In this case, the victim consented to foreplay and oral sex, but not to penetrative sex.

Another reason why this judgment must not be allowed to stand for too long as the authority is that it is one of the most dreadful miscarriages of justice and miseducation from a court of law about consent in rape cases.  The less said about the sometimes muddled use of Appellant and Complainant the better. “Three further things happened, with the clear consent of the Appellant – the kissing, the Appellant’s taking off his clothes, the oral sex,” said the court.

Who is the alleged victim here whose lack of consent must be proved? In my view “the clear consent of the Appellant [Loyiso Coko]” is immaterial in this case. DM

Professor Omphemetse S Sibanda is Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws in International Economic Law from North West University and a Master of Laws from Georgetown University Law Centre, US.