The NPA has confirmed missing its deadline to appeal a rape ruling that suggests that foreplay can be interpreted as consent – but insists it is still ‘considering’ whether to challenge the judgment.

‘We are thoroughly considering this matter,’ NPA spokesperson Mthunzi Mhaga reportedly told News24 on Friday. ‘This is an important matter that we need to apply our minds thoroughly to. It has far-reaching implications.’

He added that the ruling, delivered by Acting Judge Tembeka Ngcukaitobi and Judge Nyameko Gqamana in the Eastern Cape High Court (Makhanda), was being evaluated by Rodney de Kock and his team.

Should the NPA decide to appeal that judgment, it would apply for the legal condonation required, he added.

Gender rights activists and legal analysts have slammed the judgment for appearing to suggest that the foreplay which Loyiso Coko and his accuser had engaged in prior to the alleged rape could have been interpreted as consent by Coko.

Lawyers for Human Rights described the ruling as disappointing and stressed that ‘consent to one sexual act can never imply consent to all sexual acts’.

It was the state's case that Coko and his then-girlfriend – a masters student at Rhodes University – had agreed prior to the alleged rape that they could have oral sex.

Coko's accuser had, however, expressly told him that she did not want to have penetrative sex with him because she was still a virgin.

But, after engaging in foreplay, the woman said Coko had forced himself on her and raped her.

Coko was convicted of rape in a Regional Court and sentenced to seven years imprisonment, but challenged that judgment in the High Court, notes News24

In his ruling upholding that appeal, Ngcukaitobi said: ‘It was the evidence of the appellant (Coko) that throughout the encounter, the complainant was an equally active participant, she was not merely passive ... It was not the evidence that the appellant simply continued with the intercourse in disregard of the wishes of the complainant, as held by the magistrate.’

He added: ‘In these circumstances, I cannot uphold the findings of fact of the magistrate which are unjustified when one has regard to the record.’

Full News24 report