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The big story: Rape ruling sparks important debate

Though many of us think of “the law” as being written in stone, it’s actually open to wide interpretation. There’s been harsh criticism this week of how Tembeka Ngcukaitobi, who’s usually our fave advocate, interpreted the law in a rape case. Ngcukaitobi, in his role as an acting judge at the high court in Makhanda (Grahamstown), overturned a lower court’s rape conviction against paramedic Loyiso Coko. 

He and a fellow judge said the lower court’s ruling was wrong in terms of SA’s laws. This has prompted fierce debate. Some legal experts question whether the judgment was in keeping with the current law at all. Some say it was. But most agree: our regressive laws on rape must change. 🆘

Under the relevant act, the State has to prove – beyond a reasonable doubt – that the accused unlawfully and INTENTIONALLY committed sexual penetration with a complainant, without their consent.

If the accused simply says they thought it was consensual, and can advance any evidence to support this claim, it’s incredibly difficult for the state to prove that it was rape.

In other countries, like the US, there has been a move towards lowering the burden of proof to “reasonable belief of consent”, which would increase the conviction rates. 

But it’s worth noting that the courts cannot be the singular arbiters for social justice. Just because an act doesn’t measure up to the legal definition of rape doesn’t mean it wasn’t wrong in a larger sense. The complainant’s testimony was harrowing; she said that despite making it clear she only wanted to engage in oral sex, Coko ignored her and, during the act, “kept saying sorry in my ear”. The judges found, bizarrely, that because “no force or threats were used to coerce the Complainant” Coko could not be proven guilty of rape.

If the case makes it all the way to the ConCourt on appeal it could address the problematic burden of proving intent. We certainly hope so. 

This article appeared as part of The Wrap, 21 October 2021. Sign up to receive our weekly updates.