Actual cases
Landmark Case on Sexual Consent in South Africa.
What did the court say?
In the case of the Director of Public Prosecutions, Eastern Cape, Makhanda v Coko (248/2022) (2024) ZASCA 59, the Supreme Court of Appeal (“SCA”) reinforced the significance of consent in sexual encounters. In doing so, the court reaffirmed the position taken by the Commission for Gender Equality (“CGE”) on the issue. The SCA's judgment emanates from a momentous appeal and is poised to shift the landscape of sexual offences, especially in relation to the reporting and prosecution of offences such as rape and other forms of sexual assault.
A young woman (“complainant”) was involved in a romantic relationship with her partner (“respondent”). The complainant had, on numerous occasions, expressed the fact that she was a virgin who wished to preserve her virginity until she was ready to engage in penetrative sexual intercourse. The respondent assured her that he had no qualms with her decision. However, on one fateful evening, the parties were at the respondent's place of residence and they started engaging in foreplay. Shortly thereafter, the respondent penetrated the complainant and she attempted to ward him off as she was telling him to 'stop' and that 'he was hurting her'. The respondent informed the trial court that he thought the prolonged foreplay in which they had engaged indicated consent and was a prelude to penetrative sexual intercourse.
What did the court say?
The Magistrates' Court found the respondent guilty of rape and sentenced him to seven years' imprisonment. The High Court overturned the judgment and found that the Magistrates' Court failed to consider the fact that consent to an act of sexual penetration can be granted either by explicitly communicating the consent to the other person or tacitly by conduct. The High Court ultimately set aside the respondent's conviction on the charge of rape, indicating that the complainant gave indirect consent. Nonetheless, the High Court recognised that the absence of resistance does not necessarily constitute consent to a sexual act.
On the contrary, the SCA considered the contentious High Court ruling and challenged the implication that consent to some sexual acts implied consent to others, despite prior express agreements. In this matter, the SCA had to decide whether the respondent obtained consent to an act of sexual penetration. The nature of such consent and the form of intention required for a rape conviction had to be determined. In its interpretation of consent under the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, the SCA emphasised the purpose of the Act and the CGE's stance on sexual consent by confirming that consent must: “Be given consciously and voluntarily, either expressly or tacitly by persons who have the mental capacity to appreciate the nature of the act consented to.” Consequently, the SCA overturned the acquittal of the respondent in the High Court and reinstated his conviction on a charge of rape on the basis that the complainant's consent to foreplay did not include consent to an act of sexual penetration.
What is the impact of this judgment?
In the matter of S v Chapman (1997) ZASCA 45, Mohamed CJ remarked as follows:
Women in this country are entitled to the protection of these rights. They have a legitimate claim to walk peacefully on the streets, to enjoy their shopping and their entertainment, to go and come from work, and to enjoy the peace and tranquillity of their homes without the fear, the apprehension and the insecurity which constantly diminishes the quality and enjoyment of their lives.
This reiterates the need to curb the prevailing rape culture in South African society, which has led to the violation of women's dignity, bodily integrity and privacy without any repercussions in many instances. This often happens in cases where women are either not believed or shamed for reporting acts of sexual violence perpetrated against them by their partners or spouses.
The judgment of the Director of Public Prosecutions, Eastern Cape, Makhanda v Coko underscores the fact that submission or lack of resistance cannot be equated to consent, especially in penetrative sexual acts. The SCA further highlighted the need for express or implied consent for each specific sexual act because consent to one act could not be applied to all other acts. Thus, consent to foreplay or oral sex does not establish consent to vaginal penetration.
This judgment provides the much-needed clarity in legal interpretation as legal practitioners and the courts will be better equipped to address the scourge of sexual violence against girls and women in South Africa. The fundamental role played by this legal development in ensuring that the courts handle cases of sexual violence in an informed and compassionate manner assists in addressing the prevalence of sexual violence against girls and women, thereby fostering hope for lower statistics of female persons who have fallen victim to or are at a higher risk of being subjected to sexual violence.
Did you know…Consent to one sexual act does not necessarily include consent to other sexual acts.