Tembeka Ngcukaitobi’s not-guilty judgment in rape trial overruled

The Supreme Court of Appeal (SCA) has overturned the acquittal of a former paramedic who was found not guilty of rape by the High Court, as he had submitted that he had shared a kiss with his victim — a move he claimed meant consent for sexual penetration. 

Loyiso Coko will again face prison time after the SCA upheld an appeal lodged by the state against the Makhanda high court ruling by acting judge Tembeka Ngcukaitobi and judge Nyameko Gqama.

The judges had set aside the Makhanda regional court’s rape conviction and instead found Coko innocent of raping his then-girlfriend, a Rhodes University master’s student who was 21 at the time. The crime happened in July 2018 at Coko’s home. 

It had been the victim’s version that she had expressly told Coko she was a virgin and did not want penetrative sex.

The High Court ruling had sparked outrage and shock as the judges found that Coko was given consent when his girlfriend kissed him and they engaged in oral sex, meaning she was “an equal participant”.

But judge Nolwazi Mabindla-Boqwana and deputy president of the SCA judge Xola Petse set aside the High Court judgment on Wednesday, saying consent to one sexual act did not grant consent to others.

“Consent to penetrative sex must be communicated by the complainant to the accused. Consent to ‘foreplay’ does not constitute consent to ‘an act of penetration’. [Coko] squarely relied on and equated the complainant’s consent to ‘foreplay’ and oral sex as constituting consent to sexual penetration,” the judges said.

The SCA pointed at contradictions in the High Court’s ruling such as recognising that lack of resistance did not mean consent to a sexual act, yet also said the victim was an “active participant” for not objecting to a number of activities before the rape happened.

“We conclude that the crime of rape was established. In other words, even if [the victim] had initially consented to an act of sexual penetration — which was not the case here — her cries and groans ... served as an unequivocal indication that she disapproved of [Coko’s] conduct.

“The acquittal of the respondent by the high court is set aside,” the judges said.

Ngcukaitobi’s high court judgment sparked criticism from legal bodies and the public.

In their ruling, the two judges said the evidence showed that the victim “kissed [Coko] 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”.

The victim objected only after the penetration as she said it was hurting, the High Court found. 

The International Commission of Jurists Africa also criticised the ruling, stating it was “appalled” by Ngcukaitobi’s ruling, particularly in a country with high rates of gender-based violence and femicide.

Head of gender justice at the Centre for Applied Legal Studies, Sheena Swemmer, said the High Court judgment was a “dangerous” error that had a harmful effect in how sexual misconduct cases were resolved since.

“We as practitioners have known that the law isn’t that way but the judgment spread to other unexpected places and blurred what the law is. It has had a harmful effect. If [the court judgment] were to stand, it would allow unscrupulous people to exploit their victims. They would be getting away with rape. If it were to stand, it would hinder the movements to the constitution to realising the rights of people who became victims of GBV,” she said.

The SCA referred Coko’s sentencing back to the High Court to determine whether the seven-year sentence imposed by the Makhanda regional court was appropriate.

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