An organization fighting gender-based violence (GBV) have expressed their approval of the Supreme Court of Appeal’s (SCA) decision to uphold an appeal against the acquittal of a man accused of raping his girlfriend.
This follows the High Court’s reversal of Loyiso Coko’s rape conviction, which suggested that the couple’s foreplay implied her consent to s.e.x.
But on 24 April, the SCA found that the High Court had made a legal error by equating consent to foreplay with consent to penetrative s.e.x.
Kavya Swaminathan from the Tears Foundation, a non-profit organization, told the publication the ruling was a positive step forward.
“We’re, as most people, shocked by the High Court’s initial decision but glad to see a fair and just overturn,” Swaminathan said.
Naledi Kauli, legal manager at People Opposing Women Abuse (Powa), also praised the judgment.
“We feel empowered. We feel seen as women and feel purposeful as feminists. Before this ruling there was a sense of questioning what are we working for and what difference are we making. We had a judgment that passive consent is enough in the eyes of the law. It was a slap in the face of survivors and advocacy work. So for us to get this judgment that is so clear makes up happy,” she said.
Coko was originally convicted of rape in the Makhanda Regional Court in September 2020 and was sentenced to seven years in prison.
He appealed the conviction in the Eastern Cape High Court in Makhanda in October 2021, where Acting Judge Tembeka Ngcukaitobi and Judge Nyameko Gqamana overturned the regional court’s decision.
They argued that Coko’s then-girlfriend’s participation in undressing suggested she was an “equally active participant,” leading them to conclude that her consent to foreplay might imply consent to sex.
The SCA’s ruling reinstated the regional court’s conviction, stating the High Court’s order should be overturned and the appeal against the conviction dismissed.
The court also ordered that if Coko doesn’t appeal the sentence within 20 days, he must immediately report to the Makhanda Correctional Centre to serve his sentence.
-daily sun
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