14/10/2021
"Ruling of the EC High Court penned by AJ Ngcukaitobi : Foreplay gave consent for penetrative s*x.
A new judgment looks set to raise questions about whether foreplay that includes extensive French kissing, un******ng and engaging in oral s*x constitutes tacit consent for penetrative s*x.
The Star reports Acting Judge Tembeka Ngcukaitobi has ruled in favour of an appeal by Loyiso Coko, who argued that the foreplay he had with his ex-girlfriend indicated she had tacitly consented to s*x.
Coko was convicted last year of ra**ng his then virgin girlfriend (23) and sentenced to seven years behind bars. Coko turned to the Eastern Cape High Court (Makhanda) to appeal both conviction and sentence.
His appeal strategy attacked the trial court’s findings that he had penetrated his ex-lover while knowing fully well that she did not consent.
In the judgment delivered last week, Ngcukaitobi wrote that it could not be said that Coko knew explicitly that there was no consent, notes the report inThe Star. He wrote that while the complainant told Coko she did not want to have s*x with him, ‘there was no manifestation of any refusal of consent between the kissing, the oral s*x and the penetration’. Ngcukaitobi concluded that he could not find that Coko understood that the foreplay was not tacit consent. ‘In these circumstances, I should ask whether the state has succeeded in proving the guilt of the appellant beyond reasonable doubt. I am not satisfied that they did.’ He overturned the conviction and sentence. ‘The appellant is found not guilty and is acquitted of the charge of r**e against him,’ Ngcukaitobi stated.