Loyiso Coko v S (CA&R 219/2020) [2021] ZAECGHC 91 (8 October 2021) : oblique subscription to rape myths as an indication of the urgent need to reform the mens rea test in acquaintance rape cases in South Africa

Abstract

The core legal question in the Coko v S judgment turned on whether the complainant tacitly consented to penetrative sex. The appellant was acquitted by the high court based on his defence that he genuinely believed that complainant's behaviour and body language indicated her consent. The judgment was penned by acting judge Tembeka Ngcukaitobi, with judge Nyameko Gqamana concurring. Appellant's version of events was accepted, namely that 'he got caught up “in the heat of the moment”' (at para 23.15), and that '[he] thought [she] wanted it to happen so technically consent did pop' (at para 12). The high court overturned the magistrates court's conviction of appellant (at para 91), instead finding that appellant's version was reasonably possibly true (at paras 72 – 74).