- Acting Judge Tembeka Ngcukaitobi and Judge Nyameko Gqamana last month overturned paramedic Loyiso Coko's conviction for raping his then-girlfriend.
- Coko argued that the couple's foreplay indicated to that she had tacitly consented to sex.
- Ngcukaitobi found that, while Coko's accuser had told him that she was a virgin and did not want to have sex with him, it could not be said that Coko knew that there was no consent.
- The ruling has been slammed for suggesting that that consensual foreplay implies consent for penetration and sex.
The National Prosecuting Authority has confirmed missing its deadline to appeal a rape ruling that suggests that foreplay can be interpreted as consent - but insists it is still "considering" whether to challenge the judgment.
"We know we have missed the deadline, but we are thoroughly considering this matter," NPA spokesperson Mthunzi Mhaga told News24 on Friday.
"This is an important matter that we need to apply our minds thoroughly to. It has far-reaching implications."
He added that the ruling, which was delivered by acting Judge Tembeka Ngcukaitobi and Judge Nyameko Gqamana in the Eastern Cape High Court in Makhanda, was being evaluated by National Prosecuting Service head Rodney de Kock and his team. Should the NPA decide to appeal that judgment, it would apply for the legal condonation required, he added.
Given the NPA's own recognition that the Coko ruling had "far-reaching implications", it remains unclear why the prosecuting authority has taken so long to decide whether to appeal or not.
The State can challenge any ruling that it feels misapplies or misinterprets the law – and, in the Coko ruling, any potential appeal would arguably centre on Ngcukaitobi's interpretation of how consent is expressed and understood.
Gender rights activists and legal analysts have slammed the judgment for appearing to suggest that the foreplay which Coko and his accuser had engaged in prior to the alleged rape could have been interpreted as consent by Coko.
Lawyers for Human Rights described the ruling as disappointing and stressed that "consent to one sexual act can never imply consent to all sexual acts".
It was the state's case that Coko and his then-girlfriend – a masters student at Rhodes University – had agreed prior to the alleged rape that they could have oral sex. Coko's accuser had, however, expressly told him that she did not want to have penetrative sex with him because she was still a virgin.
But, after engaging in foreplay, the woman said Coko had forced himself on her and raped her.
Coko was convicted of rape in a regional court and sentenced to seven years imprisonment, but challenged that judgment in the High Court.
In his ruling upholding that appeal, Ngcukaitobi said: "It was the evidence of the appellant (Coko) that throughout the encounter, the complainant was an equally active participant, she was not merely passive – she kissed the appellant back, she held him, she had no problem with the removal of her clothes, she watched him take off his clothes without raising an objection, she knew he was erect, she did not object to the oral sex."
Ngcukaitobi said: "The only area where there was a dispute was after the penetration. It is in this area where the complainant says she objected and said the penetration was hurting. The appellant's evidence was that when the complainant said the penetration was hurting, he 'would stop and then continue'…
"It was not the evidence that the appellant simply continued with the intercourse in disregard of the wishes of the complainant, as held by the magistrate."
He added: "In these circumstances, I cannot uphold the findings of fact of the magistrate which are unjustified when one has regard to the record. I cannot hold that the state proved that the version of the appellant that he genuinely believed there was at least tacit consent was false beyond reasonable doubt."
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