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Yet, he admitted to the court that due to the “foreplay and the body language of the Complainant”, he believed that “she was a willing participant”. The accused admitted in evidence before the court that “sexual intercourse was not part of the plans for the evening” and that the woman has previously discussed with him that she did not feel ready for intercourse. The case dealt with a young woman who reported her former partner ignored her explicit wishes not to engage in penetrative sexual intercourse and raped her.
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Lawyers for Human Rights similarly replied : “We are disappointed in this judgment” and “consent to one sexual act can never imply consent to all sexual acts”. Unfortunately, the judges seem to be wrong about the interests of society pertaining to the sentence handed down to the accused, as society’s sense of shock seems now to be centred on the judges’ rationale for overturning the Makhanda Regional Court’s decision.Ĭivil society organisations such as the International Commission of Jurists – Africa quickly tweeted that “ICJ Africa is appalled to see Acting Judge Ngcukaitobi has ruled in favour of the appellant in Coko v S, where appellant argued that the foreplay he had with his ex-girlfriend indicated she had tacitly consented to sex”. The appeal was successful and the judges found that the previous sentence of seven years’ incarceration for rape was “unduly harsh, ignores interests of society, and induces a sense of shock”. On 8 October 2021, Acting Judge Tembeka Ngcukaitobi and Judge Nyameko Gqamana handed down judgment in an appeal against a conviction of rape, in the Eastern Cape high court. In SA it is alarming and legally dangerous to have a judgment that consensual foreplay implies consent for penetration and sex, and thus rape did not occur. ‘Foreplay’ judgment: problematic judicial views around consent in rape cases persists