Director of Public Prosecutions Eastern Cape, Makhanda v Loyiso Coko

On 1 July 2018, the respondent (Mr Loyiso Coko) and the complainant (TS), who were in a romantic relationship of about two weeks, agreed that TS would visit the respondent's apartment in Fingo Village, Makhanda. TS was a 21-year-old university student and a virgin who had repeatedly made it clear to the respondent that she wished to preserve her virginity and was not ready for penetrative sexual intercourse. The respondent, employed as a driver, gave her assurances that they would not have sex. During the visit, they watched TV and began kissing. When the respondent attempted to remove TS's pyjama pants, she resisted and closed her legs. The respondent again reassured her that he was not trying to have sex with her. Trusting his assurance, TS allowed him to remove her pants. The respondent performed oral sex on her, which made her uncomfortable but she did not object. After the oral sex, the respondent climbed on top of her and started kissing her. TS relaxed. Without seeking her consent, the respondent then penetrated her vagina with his penis, causing her sharp pain. She froze, cried, pushed him away, and told him to stop and that he was hurting her. Despite her protests, the respondent continued thrusting, pausing momentarily when she complained but then continuing. Following the incident, TS became emotionally withdrawn. The next morning she returned to her university residence. Over the following 48 days, they exchanged WhatsApp messages in which the respondent apologized and acknowledged "going back on my word." TS suffered anxiety, panic attacks, and depressive symptoms. The respondent was charged with rape in contravention of s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Sexual Offences Act). He pleaded not guilty, claiming the sexual intercourse was consensual.

• Whether the State proved beyond reasonable doubt that the complainant did not consent to the act of sexual penetration
• The proper interpretation of 'consent' and 'an act of sexual penetration' under s 3 of the Sexual Offences Act
• Whether consent to one form of sexual activity (oral sex, foreplay) constitutes consent to all forms of sexual activity (penetrative sex)
• Whether the respondent had the necessary mens rea (intention) for the crime of rape
• Whether the high court was justified in interfering with the factual findings of the regional court
• Whether the State's invocation of s 311 of the Criminal Procedure Act 51 of 1977 for appeal on a question of law was competent
• Whether absence of resistance or body language alone can constitute tacit consent to sexual penetration

1. The State's appeal against the acquittal of the respondent was upheld. 2. The acquittal of the respondent by the high court was set aside. 3. The conviction of the respondent by the regional court was reinstated. 4. The high court's order was set aside and replaced with an order dismissing the appeal against conviction. 5. The question of sentence was remitted to the high court to determine whether the sentence imposed by the regional court (seven years' imprisonment) was appropriate. 6. The Director of Public Prosecutions, Eastern Cape, Makhanda was requested to prioritise placement of the appeal against sentence on the roll. 7. Should the respondent fail to prosecute the appeal against sentence within 20 days, he must report to Makhanda Correctional Centre to serve his sentence.

1. Under s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, consent must be voluntary agreement to the specific act of sexual penetration in question. The reference to "an act" (singular) means consent must be to a specific physical sexual act, not to sexual activity generally. 2. Consent to one form of sexual activity (such as kissing, foreplay, or oral sex) does not constitute consent to a different form of sexual activity (such as penetrative vaginal intercourse). Each specific sexual act requires its own consent, either express or tacit. 3. Mere submission, acquiescence, absence of resistance, or passive body language does not constitute consent to sexual penetration. Consent must be active and can be communicated either explicitly or tacitly through conduct, but the circumstances must clearly demonstrate voluntary agreement to the specific act. 4. Where there has been an express prior agreement not to engage in penetrative sex, and the complainant has clearly and repeatedly stated a desire not to engage in such activity, "something more" than body language or the absence of objection to other sexual activities is required to establish that consent to penetrative sex has been given. 5. Consent to a sexual act can be withdrawn at any time during the act. Once consent is withdrawn and communicated to the other party (through words, cries, physical resistance, or other clear indicators), any continuation of the sexual act constitutes rape. 6. For the mens rea element of rape, it is sufficient to prove that the accused either: (a) knew the complainant had not consented; or (b) acted with dolus eventualis, meaning the accused foresaw the possibility that consent might be lacking but proceeded recklessly regardless. 7. An appellate court may only interfere with a trial court's factual findings where there is a material misdirection or the findings are demonstrably wrong. However, where the appellate court's error relates to the interpretation and application of legal concepts (such as the nature of consent), this constitutes an error of law that may ground a State appeal under s 311 of the Criminal Procedure Act 51 of 1977.

1. **On the state of sexual violence in South Africa**: The Court extensively commented on rape as a scourge and pandemic that has reached alarming proportions in South Africa, particularly affecting women and children. The Court noted that rape violates fundamental constitutional rights to dignity, bodily integrity, and security of person, and represents an expression of power through degradation rather than merely a sexual act. 2. **On the purpose of the Sexual Offences Act**: The Court observed that the legislature's enactment of comprehensive definitions of rape, sexual penetration, and consent in the Sexual Offences Act was a direct response to the Constitutional Court's finding in Masiya v DPP that the common law crime of rape was "archaic, illogical, discriminatory, irrational, unjust and thus unconstitutional." The new statutory framework was designed to address the scourge of sexual violence effectively and in a non-discriminatory manner. 3. **On rape in intimate relationships**: The Court acknowledged that sexual violence cases arising from intimate relationships can be particularly difficult to navigate due to familiarity and prior sexual contact. However, the Court emphasized that prior sexual activity or an intimate relationship does not constitute a license for all future sexual acts, and consent to each specific act must still be established. 4. **On virginity and consent**: While the Court clarified that the trial court did not establish a general rule requiring a higher standard of consent when the complainant is a virgin, it noted that in the specific circumstances of this case, the complainant's expressed desire to preserve her virginity was a relevant factor in assessing whether she had communicated a change of mind about engaging in penetrative sex. 5. **On patriarchal attitudes and myths**: The Court strongly warned that allowing the respondent's defense to succeed "would not only be a perverse incentive to unscrupulous persons taking advantage of their victims, but also have the effect of frustrating the speedy realisation of the constitutional objective of gender equality" and would "entrench patriarchal attitudes, stereotypes and mindsets that the rights of women and children, in particular, to their dignity and physical integrity count for little." 6. **On the state of appeal records**: The Court expressed strong displeasure at the inclusion of 105 pages of irrelevant material in the appeal record (including transcripts of leave to appeal applications and oral arguments in the high court), noting this was a "flagrant disregard" of Rule 8(6)(j)(i). The Court warned practitioners that continued disregard for its rules might result in sanctions. 7. **On statutory interpretation**: The Court provided extensive commentary on the unitary approach to statutory interpretation established in Natal Joint Municipal Pension Fund v Endumeni Municipality, emphasizing that interpretation involves considering text, context, and purpose together, and that since the Constitution came into effect, all legislation must be interpreted through its prism in accordance with s 39(2).

This landmark judgment is significant for several reasons: 1. **Definition of consent in rape cases**: The judgment provides authoritative guidance on the interpretation of "consent" and "an act of sexual penetration" under the Sexual Offences Act. It clarifies that consent must be to a specific sexual act, and consent to one form of sexual activity does not constitute blanket consent to all sexual activities. 2. **Rejection of harmful myths**: The judgment explicitly rejects patriarchal myths that submission, absence of resistance, or "body language" alone can constitute consent, particularly where there has been an express prior agreement not to engage in penetrative sex. 3. **Withdrawal of consent**: The judgment affirms that consent can be withdrawn during a sexual act, and continuation after withdrawal constitutes rape. 4. **Mens rea in rape cases**: The judgment clarifies that dolus eventualis (recklessness) is sufficient for rape convictions, and provides guidance on factors indicating the accused's awareness that consent was absent. 5. **Gender equality and constitutional values**: The judgment emphasizes that rape prosecutions must be understood through the prism of constitutional values of dignity, bodily integrity, and gender equality. It recognizes rape as an expression of power and domination rather than merely a sexual act. 6. **Appellate interference**: The judgment reiterates the limited circumstances in which appellate courts may interfere with trial courts' factual findings, and clarifies when such interference constitutes an error of law permitting State appeals under s 311 of the CPA. 7. **Contextual approach to consent**: The judgment demonstrates the importance of considering the full context when assessing consent, including prior discussions, assurances given, and the complainant's clearly expressed wishes. This case is crucial for combating the scourge of sexual violence in South Africa and ensuring that courts properly apply the protections afforded by the Sexual Offences Act.