13 November 2023
A case on the rights of women will be heard in the Supreme Court of Appeal this week. Illustration: Lisa Nelson
A case which raises important questions about how South African courts respond to cases of intimate partner violence and rape is set to be heard by the Supreme Court of Appeal this week.
It is an appeal by the Director of Public Prosecutions, Eastern Cape, against a local high court ruling which set aside the conviction, in the regional court, of Loyisa Coko, who had been found guilty of raping his girlfriend.
Evidence before the regional court was that she said she had explicitly said “no” to sexual intercourse and had cried and tried to push him off her.
The regional court sentenced him to seven years in jail.
But both conviction and sentence were overturned on appeal, with the high court ruling that Coko had not intended to rape the woman, with whom he had been in a relationship for two weeks.
The high court found he had mistakenly believed she had consented because she had engaged in other forms of intimacy.
The Initiative for Strategic Litigation in Africa (ISLA), represented by the Centre for Applied Legal Studies (CALS), has joined the proceedings as an amicus curiae, arguing that the high court’s findings had essentially negated the voice of the complainant and relied on certain “rape myths”.
In a statement, CALS said the matter was critical for exposing how South African courts still failed to adjudicate cases of intimate partner violence in a way that aligns with the country’s constitutional values and with international human rights norms.
“Although rape committed by women’s husbands, boyfriends or ex-partners is the most common form of sexual violence, these cases seldom reach the courts. Survivors of intimate partner sexual violence are confronted by lack of awareness, and discriminatory attitudes held by police and prosecutors, with the result that their cases rarely proceed to trial.
“When cases do reach the court, it is not uncommon that judges also fail to understand the dynamics of this form of rape. What we are left with is a high level of impunity for sexual violence that affects a large segment of women in South Africa,” CALS stated.
It said a human rights-aligned approach required that courts understand all forms of sexual violence, including rape by intimate partners, and that they examine cases in context so that victims are not discriminated against in the court process.
“Courts must also centre the voices and experiences of victims, and avoid using rape myths and stereotypes which have the effect of diminishing victims’ experiences, and bolstering the perspectives of perpetrators.”
“There is no justifiable legal basis for the High Court’s finding,” said Sheena Swemmer, Head of Gender Justice at CALS.
“The Court failed to perform a contextual analysis of consent in the case, which has resulted in a flawed judgment with dire public interest implications if left unchallenged. This places undue emphasis on the actions of the complainant instead of the perpetrator.”
In heads of argument filed with the SCA, CALS Advocate Loyisa Makapela said the high court had failed to take into account the complainant’s vehemence in not wishing to engage in sexual intercourse, which she had communicated both verbally and in her body language.
It had also failed to appreciate the regional court’s emphasis on her virginity, finding that this risked “engaging the courts in matters of sexual morality”.
“The high court failed to recognise that far be it an engagement in matters of sexual morality, it was in fact a further violation of the complainant’s right to security, control over her body and her dignity as the memory of the horror of her first sexual encounter will mar every other sexual encounter she has for the rest of her life,” Makapela said.
Several other institutions, including the Women’s Legal Centre and the Commission for Gender Equality, have also applied to the court to be amicus curiae.
The hearing will take place on 14 November.