Director of Public Prosecutions, Eastern Cape, Makhanda v Coko

The respondent, Loyiso Coko, and the complainant, TS, were in an intimate relationship. TS had repeatedly informed the respondent that she was a virgin and not ready to engage in penetrative vaginal sex, a position he expressly accepted. On 1 July 2018, TS visited the respondent’s room. They engaged in kissing and oral sex, to which TS did not object, but she never expressly consented to penetrative sex. During the encounter, the respondent penetrated TS vaginally with his penis. TS immediately experienced pain, cried, told him to stop, and attempted to push him away. The respondent did not desist and continued penetration. TS later expressed distress and betrayal. The respondent admitted sexual intercourse but claimed it was consensual or at least tacitly consented to. The regional court convicted him of rape. The High Court overturned the conviction, finding tacit consent possible. The Director of Public Prosecutions appealed to the Supreme Court of Appeal.

The appeal by the State was upheld. The High Court’s acquittal was set aside, the regional court’s conviction for rape was reinstated, and the matter was remitted to the High Court to consider the appropriateness of the sentence. The respondent was ordered to report to correctional services if the appeal against sentence was not prosecuted timeously.

The case clarifies the meaning of consent under South African sexual offences law, particularly in intimate relationships. It affirms that consent to one sexual act does not imply consent to penetrative sex, and that prior express refusal requires clear evidence of a change of mind. The judgment reinforces protections for sexual autonomy and limits the scope of inferred or tacit consent.