A paramedic from Makhanda who had a rape conviction overturned must go back to prison.
Twenty-eight-year-old Loyiso Coko made national headlines when his conviction was set aside on appeal by the then Acting Judge Tembeka Ngcukaitobi and Judge Nyameko Gqamana.
Coko was sentenced to seven years in prison for raping his girlfriend who only agreed to have oral sex.
During the initial trial in the Regional Court, the National Prosecuting Authority (NPA) said that the Rhodes student 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.
During the High Court appeal, Acting Judge Ngcukaitobi found the Makhanda Regional Court's original findings " Erroneous " and unduly harsh, stating that it ignored the interest of society and induced a sense of shock.
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 took the matter to the Supreme Court of Appeal (SCA) to seek clarity on the interpretation of "consent" and specifically the nature of consent as defined in section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.
Spokepserson for the NPA Mthunzi Mhaga welcomed the SCA Judgment on Wednesday, which unanimously upheld the appeal from the NPA.
He says the conviction of rape against Coko is therefore reinstated.
The SCA requested the Director of Public Prosecutions in the Eastern Cape, Barry Madolo, to prioritise the placement of the appeal against the sentence on the roll as soon as all relevant requirements have been met.
Mhaga says the NPA remains committed to prioritising the fight against Gender-Based Violence.
The Commission for Gender Equality (CGE) was admitted as a "friend" of the court during the SCA appeal and welcomed Wednesday's ruling.
Spokesperson Javu Baloyi says the SCA highlighted that consent to specific acts of sexual penetration is necessary, and withdrawal of consent during the act is valid.
The court also concluded that the accused intentionally engaged in penetrative sexual intercourse without consent despite assurances that he would not do so.
“The Supreme Court of Appeal’s decision to set aside Mr Coko’s acquittal and uphold his conviction is a monumental step in the nation’s fight against the scourge of rape.
"A 21-year-old woman was raped, and the Commission was disturbed by sentiments expressed in the High Court’s judgment implying that she was an active participant in her own rape due to her lack of objection. We hope that the SCA judgment will provide clarity on the matter of consent in respect of sexual intercourse.
"We are equally relieved that the SCA has set the High Court ruling aside and we are looking forward to the consideration of the High Court on whether the sentence of 7 years imprisonment that was imposed by the Reginal Court is appropriate in the matter.” said the CGE Chairperson, Adv Nthabiseng Sepanya-Mogale.
