IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION, GRAHAMSTOWN)

CASE NO: CA&R 219/2020

In the matter between:

LOYISO COKO Appellant

And

THE STATE Respondent

JUDGMENT

NGCUKAITOBI AJ:

INTRODUCTION

1. On 8 September 2020, the Appellant was convicted on one count of rape at the

Regional Court of Grahamstown. He was sentenced to 7 years imprisonment.

The Regional Court refused him leave to appeal, but this Court granted leave

to appeal on both conviction and sentence. He is presently out on bail, pending

the outcome of this appeal.

2. The Appellant has appealed against the conviction and sentence. He submits

that the State failed to prove beyond reasonable doubt the elements of the crime

of rape and in any event the sentence of 7 years is unduly harsh, ignores

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 interests of society, and induces a sense of shock. The State disputes this and

counters that the Appellant was correctly convicted and the sentence is

appropriate.

3. Before addressing the grounds of appeal, the material facts must be recounted.

THE JUDGMENT OF THE COURT BELOW

64 The Court held that the Appellant must have known that there was no consent

from the onset. Therefore there could be no argument that he was deceived by

the body language of the Complainant in allowing him to perform oral sex.

65 Although she admitted to acceding to oral sex she did not consent “to actual

sexual penetration in the natural way.” The Court also held that at the specific

time of the oral sex she again made it clear that there should be no penetration.

During the trial, the Appellant had accepted this and including the assurance

given to the Complainant that there would be no penetration, but acted contrary

to that assurance.

66 The Court held that “the accused ought to have controlled himself as he had

fallen for a principled young girl who made it clear that despite apparent consent

to oral sex, I am not giving you consent to sexually penetrate my vagina with

your penis.”

67 The Court also concluded that the evidence justifies:

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 “An inference that the accused in all probability … lured the Complainant

to his place, knowing she is a virgin, defied her wishes, taking her

advantage of the situation in the hope that no one will believe the

Complainant should she cry rape under the circumstances he thought

he could get away with it, but this thinking of his, or whatever thinking he

possessed has now boomeranged.”

68 The Magistrate thereafter turned to the issue of sentence. Although it accepted

that the Legislature has prescribed a sentence of 10 years imprisonment for an

offence such as the present, there were substantial and compelling

circumstances justifying a departure from that sentence. On a consideration of

the circumstances of this case a sentence of 7 years imprisonment was

considered appropriate.

THE APPEAL

The legal principles

70 It is necessary to restate some basic principles.

71 As pointed out above, rape is a statutory offence.

- Section 3 of the Act punishes the unlawful, intentional sexual

penetration without consent.

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 - In turn, “sexual penetration” means “any act which causes

penetration to any extent whatsoever by … (a) the genital organs of

one person into or beyond the genital organs, anus, or mouth of

another person.”. (Section 1(1)).

- Section 1(2) deals with consent and provides inter alia that for the

purposes of the offence in Section 3 (rape) consent means “voluntary

or uncoerced agreement”.

- Section 1(3) provides for the circumstances in which a complainant

does not voluntarily or without coercion give consent to sexual

penetration.

72 In Otto v S [2017] ZASCA 114 the Supreme Court of Appeal held:

“The onus rests on the State to prove all of the elements of the offence

of rape, including the absence of consent and intention. That is so even

where, as in this case, the version put to the complainant by the

appellant’s legal representative was a denial of any sexual contact with

her.”

73 Since this is a court of appeal I may interfere with the factual findings of the trial

Court if on examination of the record I can find material misdirections. In the

absence of a misdirection I am not entitled to interfere.

74 In S v Hadebe & Others 1997 (2) SACR 641 (SCA) at 645 E – F it was held:

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 “In short, in the absence of demonstrable and material misdirection by

the trial court, its findings of fact are presumed to be correct, and will only

be disregarded if the recorded evidence shows them to be wrong.”

Intention and consent

79 In this matter the issue of consent and intention are interrelated. The sexual

penetration is 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.

80 Much was been made by the Magistrate and the Prosecutor of the fact that the

Complainant was a virgin at the time and wished to preserve her virginity. It

was suggested to the Appellant that bearing in mind that the Complainant was

a virgin “something more” was required to demonstrate her consent, and that it

was not sufficient for the Appellant to rely solely on her conduct as illustrative of

consent.

81 There are aspects of the Judgment which also appear to endorse this line of

reasoning. For instance, the Magistrate says that “the Complainant explicitly

barred the accused from penetrating her vagina with his penis so as to prevent

him from deflowering her.” Furthermore, the Magistrate describes the

Complainant as “a principled young girl” on account of her stated wish to remain

a virgin. Finally the Magistrate criticises the Appellant for “luring the

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 Complainant to his place, knowing that she is a virgin.”

82 This is a misdirection of law. There are no different standards applicable to

women (or men) who are virgins and those who are not. Consent means the

same thing regardless of whether the victim is a virgin or not. It would set an

unfortunate precedent if the law applied a different threshold to consent in

respect of persons who are not virgins.

83 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. I cannot approach the matter through an ex

post facto assessment, however. I should consider the facts as they unfolded

at the time to decide if the state discharged the onus to prove that the Appellant

acted with intention to commit an offence beyond reasonable doubt.

The factual misdirections

84 The main finding of the Magistrate in regard to the issue of consent and intention

is that the Appellant “conceded” that the Complainant did not give consent for

penetration by way of a penis into the vagina of the Complainant, but he

nevertheless decided to proceed anyway.

85 The Magistrate held “as they became engulfed in smooching and the oral sex,

she made it plain once more that you cannot penetrate her vagina with your

penis.” The Magistrate then concluded that the Appellant conceded this part of

the evidence. However, this is a factual misdirection, which manifestly played a

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 crucial role in the overall assessment of the evidence and influence the findings

of the Magistrate in finding the Appellant guilty.

86 These findings including the “concession” by the Magistrate rely on the answers

given by the Appellant in an exchange with the Appellant. It is necessary to

consider the actual exchange which forms the substratum of the findings. The

record shows that the Magistrate said:

“Yes, whilst we are on that I just wanted to get clarity from you sir, it was

her evidence and I do not recall it being disputed that around about the

point where there was this oral sex, she did make it plain to you that

there would not be any penetration and then you assured her that you

will not penetrate her and all of a sudden you did exactly that.”

87 The Magistrate then asked whether the evidence is true, which the Appellant

accepted. Thereafter, the Appellant referred to the Complainant’s “body

language” which he claimed suggested the opposite. In argument, the matter

was approached from the perspective of “tacit consent”.

88 An accused cannot solely rely on the “body language” of a rape victim to

override his or her express words. But the record does not suggest that this is

what happened here.

89 How should consent be established? The SCA has endorsed the views of the

author CR Snyman, in the following manner in relation to the issue of consent:

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 “[8] The author Snyman, states:

‘For consent to succeed as a defence, it must have been given

consciously and voluntarily, either expressly or tacitly, by a person
who has the mental ability to understand what he or she is
consenting to, and the consent must be based on a true
knowledge of the material facts relating to the intercourse.'”

(S v Nitito (123/11) [2011] ZASCA 198 (23 November 2011))

90 The state bears the onus to prove absence of consent. Where there was no

express rejection of the sexual act, in Mugridge v S (657/12) [2013] ZASCA 43;

2013 (2) SACR 111 (SCA) the SCA commented as follows:

“[37] In law, consent has the following requirements:

(a) the consent itself must be recognised by law;

(b) it must be real consent; and

(c) it must be given by a person capable of consent.

[38] The question of whether consent in the context of sexual offences

will be ‘recognised in law’ is determined with reference to considerations
of public policy, with the following factors relevant in the making of such
a determination:

‘[T]he nature and extent of the harm, both physical and

psychological; and the age and relationship of the parties,
especially if the conduct involves the exploitation or abuse of
children.’

[39] The first and last of the aforementioned requirements need no

further discussion for the purposes of the instant matter. Rather, as noted
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earlier, it must be assessed whether, on the facts of this matter, the
apparent submission and acquiescence of the complainant amounted to
consent in the legal sense.

[40] The law requires further that consent be active, and therefore
mere submission is not sufficient. In Rex v Swiggelaar, Murray AJA
commented as follows:
‘The authorities are clear upon the point that though the consent
of a woman may be gathered from her conduct, apart from her
words, it is fallacious to take the absence of resistance as per se
proof of consent. Submission by itself is no grant of consent, and
if a man so intimidates a woman as to induce her to abandon
resistance and submit to intercourse to which she is unwilling, he
commits the crime of rape. All the circumstances must be taken
into account to determine whether passivity is proof of implied
consent or whether it is merely the abandonment of outward
resistance which the woman, while persisting in her objection to
intercourse, is afraid to display or realises is useless.’”