The Commission for Gender Equality (CGE) has commended the Supreme Court of Appeal’s decision to reinstate the ruling in the rape case against paramedic, Loyiso Coko.
Coko was accused of raping his then 21-year-old girlfriend. She had repeatedly expressed her desire to preserve her virginity and not engage in penetrative intercourse.
Despite assurances from Coko that he respected her wishes, he, proceeded to sexually penetrate her without her consent. This caused her distress and pain.
In 2018, the regional court in Makhanda (formerly Grahamstown) found the state’s evidence compelling, and convicted Coko of rape.
High Court ruled against regional court’s conviction
However, Coko appealed his conviction at the High Court in 2021. The High Court ruled that his conviction was unsustainable, based on the evidence presented.
The High Court further found that the regional court made significant errors in understanding the concept of consent in sexual penetration cases. It, however, found that consent can be given explicitly or implied through conduct.
The High Court postulated that the complainant was an active participant. This was due to her lack of objection to various actions before the sexual penetration. These were acts of kissing, undressing, and oral sex. The court concluded that force or coercion was not used by the accused.
State appealed to the SCA
The state appealed to the SCA, and on Wednesday the SCA ruled that consent must be given consciously and voluntarily. This either explicitly or implicitly by individuals with the mental capacity to understand the nature of the act.
The SCA highlighted that consent to specific acts of sexual penetration is necessary, and withdrawal of consent during the act is valid. It also concluded that the accused intentionally engaged in penetrative sexual intercourse without consent. This despite assurances that he would not do so.
CGE’s chairperson, Advocate Nthabiseng Sepanya-Mogale, noted that the CGE referred the court to foreign judicial precedent in interpreting sexual assault. Also in finding that “an act” referred to in the Sexual Offences Act 32 of 2007 does not mean more than one act.
“Furthermore, the court indicated that such interpretation would undermine the purpose of the legislation,” Sepanya-Mogale said.
Monumental step in fight against scourge of rape
She said the SCA’s decision to set aside Coko’s acquittal is a monumental step in the nation’s fight against the scourge of rape.
Sepanya-Mogale said the judgment reaffirms the rights of women and children to dignity and physical integrity.
“A 21-year-old woman was raped. The commission was disturbed by sentiments expressed in the High Court’s judgment. Implying that she was an active participant in her own rape due to her lack of objection. We hope that the SCA judgment will provide clarity on the matter of consent in respect of sexual intercourse.
“We are equally relieved that the SCA has set the High Court ruling aside. And we are looking forward to the High Court’s consideration the sentence. Whether the sentence is appropriate in the matter,” the chairperson said. The regional court had imposed the sentence of seven years imprisonment.
- SAnews.gov.za
