Supreme Court of Appeal ruling sets landmark precedent on sexual consent

In a landmark ruling, the Supreme Court of Appeal (SCA) has reinforced the critical importance of consent in sexual encounters, aligning with the Commission for Gender Equality's (CGE) stance on the matter. This judgment, emanating from a pivotal appeal, is poised to reshape the landscape of rape and related sexual offences prosecution and reporting.

The SCA's deliberation centred on a crucial question: whether tacit consent to certain sexual acts could extend to others, particularly in cases involving penetration, despite prior express agreements. The judgment revisited a contentious High Court decision that stirred debate last year, challenging the notion that a complainant's consent to certain acts implied consent to others, contrary to explicit agreements.

In clarifying the interpretation of consent under the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, the SCA overturned the accused's acquittal, reinstating his conviction.

Laura Macfarlane, a director from Norton Rose Fulbright South Africa, representing the CGE, emphasised the Court's endorsement of the Commission's position on consent. “According to the Court, consent must be consciously and voluntarily given, either expressly or tacitly, necessitating clear communication and mutual agreement between parties.”

The ruling underscored that mere submission, acquiescence, or lack of resistance does not constitute consent, particularly in penetrative sexual acts.

Drawing on international jurisprudence, the SCA emphasised the need for explicit or tacit consent to each specific sexual act, rejecting the notion that consent to one form of activity encompasses consent to all. This clarification signifies that consent to foreplay or oral sex does not imply consent to vaginal penetration, providing crucial clarity in legal interpretation.

Advocate Gilbert Marcus SC and Emma Webber of the Johannesburg Bar, instructed by Norton Rose Fulbright's Impact Litigation team, represented the CGE in this groundbreaking case. Their diligent advocacy has not only influenced legal discourse but also equipped prosecutors and courts with essential guidance to effectively combat rape and related sexual offences.

Judgment is available here: Director of Public Prosecutions, Eastern Cape, Makhanda v Coko (248/2022) [2024] ZASCA 59 (24 April 2024) (saflii.org)