The Supreme Court of Appeal in South Africa is set to hear a case that has stirred significant debate surrounding the handling of intimate partner violence and rape allegations by the country’s judicial system. This comes as the Director of Public Prosecutions, Eastern Cape, appeals a local high court decision to overturn a regional court’s conviction of a man accused of raping his girlfriend.
The case revolves around Loyisa Coko, who was initially found guilty of raping his girlfriend by a regional court and subsequently sentenced to seven years in jail. However, the high court overturned both the conviction and sentence, contending that Coko had not intended to rape his girlfriend, citing the belief that she had consented due to their prior relationship dynamics.
The involvement of the Initiative for Strategic Litigation in Africa (ISLA) and the Centre for Applied Legal Studies (CALS) in the proceedings further underscores the significance of this case. ISLA, representing CALS, has raised concerns about the court’s ruling effectively negating the victim’s voice and perpetuating “rape myths”. They argue that such judgments contribute to a culture of impunity for sexual violence in South Africa, particularly in cases of intimate partner violence.
In a statement, CALS emphasized the need for courts to align their adjudication of intimate partner violence cases with constitutional values and international human rights norms. It highlighted the pervasive lack of awareness and discriminatory attitudes within law enforcement and judicial processes, which often prevent cases of intimate partner sexual violence from progressing to trial. Furthermore, CALS stressed the importance of courts understanding the dynamics of sexual violence, centring the voices of victims, and avoiding the reinforcement of stereotypes that diminish victims’ experiences.
Sheena Swemmer, Head of Gender Justice at CALS, criticized the High Court’s failure to conduct a contextual analysis of consent in the case, expressing concerns about the judgment’s potential public interest implications if left unchallenged. The inadequacy in considering the complainant’s explicit refusal of sexual intercourse and the impact on her dignity and security reflects a flawed approach that warrants scrutiny.
This case has garnered widespread attention, with various institutions, including the Women’s Legal Centre and the Commission for Gender Equality, seeking to provide expert input as amicus curiae.
The upcoming hearing at the Supreme Court of Appeal on November 14th is poised to address fundamental issues concerning the adjudication of intimate partner violence and the examination of sexual violence cases within their contextual framework. As the legal proceedings unfold, the outcome of this case has the potential to shape the future jurisprudence surrounding intimate partner violence and rape in South Africa.
