The then Acting Judge Tembeka Ngcukaitobi and Judge Nyameko Gqamana found the original findings of the Makhanda Regional Court "erroneous" and unduly harsh, stating that it ignored the interests of society, and induced a sense of shock.
The now 28-year-old Loyiso Coko was sentenced to seven years in prison in 2020 for raping his girlfriend who agreed to have oral sex.
During the initial trial, the National Prosecuting Authority (NPA) said that the woman explicitly warned Coko against any penetration as she was still a virgin.
In the initial ruling, the Judge found that Coko ignored his girlfriend's warning and forced himself upon her.
The NPA is on record as saying that there was a prior agreement between the couple to not have penetrative sex.
In fact, the woman actually negotiated very clearly her willingness to have oral sex but not penetrative sex.
Even if there was no prior agreement, the law in South Africa allows a person to refuse penetrative sex at any stage in an engagement.
These sentiments were echoed by The Soul City Institute for Social Justice at the time, who said they were appalled by the verdict being overturned.
The State is appealing the October overturning and the CGE has now been committed as Amicus Curiae.
The High Court found that there had been implied or tacit consent, on the basis that the complainant had allowed him to perform oral sex on her.
The NPA disagreed and is appealing on the grounds that this did not imply consent for penetration.
The head of CGE's legal services, Dr Dennis Matotoka, says they believe it is important to dismantle the concept of implied or tacit consent in rape cases, not only to educate the broader society but also for the development of jurisprudence that will nuance judicial decisions on gender-based violence.
He says it is very important in Gender Based Violence Cases to obtain consent, however, implied consent is very problematic, because survivors react differently to different situations.
"There has to be more than just implied consent," he said.
A date for the appeal before the Supreme Court of Appeal (SCA) in Bloemfontein is not yet known.
