Director of Public Prosecutions, Eastern Cape, Makhanda v Loyiso Coko

Case Citation and Basic Information

Full Case Name: Director of Public Prosecutions, Eastern Cape, Makhanda v Loyiso Coko (Women’s Legal Centre Trust, Initiative for Strategic Litigation in Africa and Commission for Gender Equality intervening as Amici Curiae).

Citation: (case no 248/2022) ZASCA 5.

Court: Supreme Court of Appeal of South Africa.

Date of Decision: 24 April 2024 (Supplementary Judgment delivered 05 July 2024).

Bench Composition: Petse DP and Zondi, Mocumie, Mbatha and Mabindla-Boqwana JJA.

1. Introduction

The Coko case is a landmark decision in South African sexual offences jurisprudence, centering on the nature of consent and the subjective test of intent under the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (SORMA).[1] This case gained significant public attention after the Eastern Cape High Court overturned a Regional Court conviction, effectively equating a complainant’s participation in consensual foreplay with tacit consent for penetrative intercourse. The Supreme Court of Appeal (SCA) judgment is noteworthy for its definitive rejection of “rape myths” and its clarification that consent to one sexual act is not a license for all others. By reinstating the conviction, the SCA affirmed the constitutional rights of women to bodily integrity and dignity, providing a critical precedent for cases of intimate partner violence and “acquaintance rape” in South Africa.[2]

2. Facts of the Case

The incident occurred on 1 July 2018 at the apartment of the Respondent, Loyiso Coko, then a 23-year-old paramedic. The Complainant, TS, a 21-year-old student, had been in a romantic relationship with Coko for approximately two weeks. Crucially, TS had informed Coko multiple times that she was a virgin and was not ready for penetrative sex, a stance Coko had explicitly promised to respect.

On the night in question, TS visited Coko’s apartment to watch a movie and sleep over, reiterating that her presence did not imply consent to intercourse. While they watched a movie on a bed, consensual kissing began. However, when Coko attempted to remove TS’s pyjama pants, she resisted by closing her legs. Coko then provided a specific assurance: “no, I don’t want to have sex with you”. Relying on this renewed promise, TS allowed him to remove her pants. Coko proceeded to perform oral sex, which TS testified she did not object to despite feeling “taken aback” and “uncomfortable”.

Following the oral sex, Coko moved on top of TS and began penetrative intercourse without asking for permission. TS testified that she immediately “froze” and started crying, telling Coko to “stop” as he was “hurting” her and attempting to push him off. Coko admitted that TS vocalised that it was painful but testified that he only “paused momentarily” before continuing to thrust “with the motion” of the passion. After the act, TS became emotionally withdrawn.

In the following weeks, WhatsApp messages showed Coko apologising for “going back on [his] word” and “having unprotected sex”. TS reported the matter to the police in September 2018 after suffering persistent nervous breakdowns. The Regional Court convicted Coko of rape and sentenced him to seven years imprisonment.[3] The High Court overturned this on appeal, ruling that TS’s lack of objection to foreplay constituted “tacit consent” to penetration, which led to the State’s final appeal to the SCA.

3. Legal Issues

1. Whether the State proved beyond a reasonable doubt that the complainant did not consent to the specific “act of sexual penetration” as defined in Section 3 of SORMA.[4]
2. Whether the accused acted with the requisite intention (mens rea), or dolus eventualis, by proceeding with penetration despite a prior refusal and vocalisations of pain during the act.
3. Whether the High Court committed an error of law by substituting its own interpretation of “tacit consent” for the trial court’s factual and credibility findings without a demonstrable material misdirection.[5]

4. Arguments Presented

Petitioner (State) Arguments: The State, supported by amici curiae, argued that Coko had acted with clear intent, knowing TS had not consented to penetrative sex. They emphasised that TS’s prior repeated refusals and physical resistance (closing her legs) created a context where Coko could not have “genuinely believed” consent existed. Furthermore, the State contended that Coko’s failure to stop despite TS’s crying and explicit statements of pain demonstrated dolus eventualis, meaning he foresaw the possibility of non-consent but proceeded recklessly, “gambling” with TS’s dignity. They argued the High Court’s judgment was dangerous because it relied on the retrogressive myth that participation in foreplay implies consent to penetration.

Respondent (Coko) Arguments: Coko asserted that the sexual intercourse was consensual. His defence centered on the subjective belief that TS had given “tacit consent” through her conduct, such as participation in kissing and oral sex. He claimed TS “seemed relaxed” and did not use words to stop him at the exact moment of penetration. Coko maintained he was simply “caught up in the heat of the moment” and believed the intimacy naturally led to penetration. He argued the State failed to prove his version was “false beyond reasonable doubt,” the standard required for the subjective test of fault in South African criminal law.

5. Court’s Reasoning and Analysis

The SCA’s reasoning centered on a strict interpretation of Section 3 of SORMA through the prism of constitutional values.[6]

Nature of Consent: The Court held that consent must be “given consciously and voluntarily”.[7] A key analytical pivot was the SCA’s interpretation of the phrase “an act of sexual penetration” (singular) in the statute. The Court reasoned that this signifies consent must be specific to each physical act. Therefore, consent to foreplay or oral sex will not suffice for purposes of a penetrative act because they do not constitute an “act of penetration” as defined in SORMA. The SCA found the High Court erred by creating a “continuum” of consent where foreplay could satisfy the requirement for penetration.[8]

Rejection of Tacit Consent: The Court scrutinized Coko’s claim of “tacit consent.” It found that Coko’s prior assurances were binding. His claim that he “went with the motion” after TS stopped resisting during oral sex was rejected, as “absence of resistance” does not equate to consent. Because Coko had provided a firm assurance that no penetration would occur, the burden to establish a change of heart required “something more” than ambiguous body language.

Fault (Mens Rea): The SCA affirmed that dolus eventualis is sufficient to secure a conviction. Given the cumulative factors, Coko’s knowledge of TS’s virginity, her prior resistance, and her cries of pain, the Court concluded Coko intentionally breached his word. His claim of being “overcome with passion” did not negate the fact that he proceeded while foreseeing that TS might not have consented.

Appellate Standards: Finally, the SCA found the High Court wrongly interfered with the Regional Court’s findings. It reiterated that appellate courts must defer to the trial court’s credibility assessments unless there is a material misdirection, which was absent in this case.

6. Judgment and Ratio Decidendi

The Decision: The SCA upheld the State’s appeal, set aside the High Court’s acquittal, and reinstated Coko’s conviction. The order of the High Court was set aside, and the appeal against conviction was dismissed.

Ratio Decidendi: Consent to sexual activity is act-specific; agreement to participate in one form of sexual contact (such as foreplay or oral sex) does not constitute consent for penetrative intercourse. Consent is a specific, voluntary agreement that can be withdrawn at any stage, and continuation after such withdrawal constitutes the crime of rape.

7. Critical Analysis

The Coko judgment represents a vital victory against the entrenchment of “rape myths” in the South African judiciary.[9] The High Court’s original ruling was widely criticized as a significant “Achilles’ heel” because it suggested that women who engage in consensual intimacy effectively lose the right to say “no” to penetration.[10] By overturning this, the SCA aligned domestic law with international standards that emphasize “affirmative consent” over the archaic “resistance” model.[11]

However, the case also exposes a deeper structural flaw: the subjective fault standard. While the SCA successfully applied this standard to convict Coko, scholars note that the subjective test often places an insurmountable burden on prosecutors, who must negate the accused’s claim of a “genuine belief” in consent.[12] This case served as a catalyst for the Embrace Project constitutional challenge, which argued that the “mistaken belief” defense should only be valid if the accused can demonstrate they took “objectively reasonable steps” to ascertain consent.[13]

The SCA’s reasoning is robust in its constitutional alignment, protecting the rights to dignity and bodily integrity. Yet, it also highlights the “judicial dance” with rape stereotypes. While Coko was convicted, the High Court’s initial reasoning demonstrated how easily judicial officers can buy into myths that “no” can mean “yes” in the context of intimacy. The SCA’s judgment is thus a necessary corrective that reaffirms “No means No” regardless of a relationship’s status.

8. Conclusion

The Supreme Court of Appeal’s ruling in DPP v Coko reinstated a seven-year rape conviction, unequivocally establishing that “consent to kissing does not equal consent to sex”. The key takeaway is that consent is specific to the act and can be withdrawn at any moment during a sexual encounter. This judgment has a lasting impact by reaffirming the bodily autonomy of women and rejecting the dangerous notion that participation in foreplay implies generalized consent. While it successfully navigated the current subjective test to reach a just outcome, the case has underscored the urgent need for legislative reform. Future developments, will likely build on this precedent to ensure that the “mistaken belief” defense is subjected to stricter objective scrutiny, ultimately aiming to dismantle the systemic barriers survivors face in the South African criminal justice system.

Reference(S):

Primary Sources

Criminal Law Amendment Act 105 of 1997 (S. Afr.).

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (S. Afr.).

Criminal Procedure Act 51 of 1977 (S. Afr.).

Director of Public Prosecutions, Eastern Cape, Makhanda v. Loyiso Coko (248/2022) ZASCA 59 (S. Afr.).

Afr. Const. (1996).

Secondary Sources

Ferreira, Emsie, State wins its appeal of controversial Coko rape ruling, The Mail & Guardian (Apr. 24, 2024), https://mg.co.za/news/2024-04-24-state-wins-its-appeal-of-controversial-coko-rape-ruling/.

Roux, Mispa, Loyiso Coko v S (CA&R 219/2020) 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, 35 South African Journal of Criminal Justice 356 (2022).

Sibanda, Omphemetse S., Flawed Makhanda High Court judgment is an Achilles’ heel in rape case law in South Africa, Daily Maverick (Oct. 17, 2021), https://www.dailymaverick.co.za/opinionista/2021-10-17-flawed-makhanda-high-court-judgment-is-an-achilles-heel-in-rape-case-law-in-south-africa/.

Stal, SJ, Does Mistaken Belief in Consent Constitute a Defence in South African Rape Cases?, 26 Potchefstroom Electronic Law Journal 1 (2023).

Swemmer, Sheena, When “No” means “No”, Wits University Curiosity (Oct. 1, 2025), https://www.wits.ac.za/news/latest-news/curiosity/2025/issue-19-disruption/when-no-means-no.html.

[1] Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (S. Afr.).

[2] S. Afr. Const. § 10; S. Afr. Const. § 12.

[3] Criminal Law Amendment Act 105 of 1997, § 51 (S. Afr.).

[4] Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, § 3 (S. Afr.).

[5] Criminal Procedure Act 51 of 1977, § 311 (S. Afr.).

[6] S. Afr. Const. § 39(2) (S. Afr.).

[7] Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, § 1(2) (S. Afr.).

[8] Sheena Swemmer, When “No” means “No”, Curiosity, Oct. 1, 2025, at 1.

[9] Mispa Roux, Loyiso Coko v S: Oblique subscription to rape myths, 35 S. Afr. J. Crim. Just. 356, 356 (2022).

[10] Omphemetse S. Sibanda, Flawed Makhanda High Court judgment is an Achilles’ heel in rape case law in South Africa, Daily Maverick, Oct. 17, 2021.

[11] Roux, supra note 9, at 364.

[12] SJ Stal, Does Mistaken Belief in Consent Constitute a Defence in South African Rape Cases?, 26 Potchefstroom Elec. L.J. 1, 3 (2023).

[13] Embrace Project NPC v. Minister of Justice and Correctional Services (04856/22) ZAGPPHC (S. Afr.).