Court ruling on Zathulele Cola highlights issues of consent in sexual offences

A rapist’s attempt to overturn his conviction has been denied by the Western Cape High Court, where Zathulele Cola, a 58-year-old man and friend of the victim's father, argued that he had consensual sex with an inebriated 17-year-old girl.

While Cola admitted to having sexual intercourse with the complainant, he claimed that it was consensual, a position that the court ultimately rejected.

According to information that emerged during the trial, the victim was found by her mother and others at the home of Cola after he had followed her home from a local tavern, where they were both drinking. He had allegedly, while they were walking, forcibly taken her to his house, locked the door, and then raped her. She was unconscious (semi-conscious) when she was found.

This raised the question of consent and whether the complainant could legally consent to sexual intercourse, considering her state of intoxication.

According to the complainant’s mother’s testimony, she was asleep and woke up when she received information that her daughter had been raped.  

“She went to the appellant’s home. The complainant was unconscious on the appellant’s bed. She was unable to revive the complainant. With assistance, the complainant was placed in a police vehicle and transported to a hospital,” the judgment read. 

Judge Derek Wille said: “In our view, the appellant failed to demonstrate that he took objectively reasonable steps to ascertain that the complainant consented to sexual conduct. In our view, there is no other crime in which the victim's response plays such a significant role in defining the crime.  Impermissibly, it somewhat unfairly shifts the focus to the conduct of the victim who must prove that she did not consent, rather than the other way round.”

The judgment noted that the victim of the alleged rape was 41 years younger than the appellant. 

According to Cola’s version, who testified and called no witnesses, he left the tavern shortly after the teenager left.  

Cola led no evidence to counter the evidence that he was ‘keeping an eye’ on the complainant while she was drinking alcohol at the tavern.

“According to him, the complainant held his hand, and she voluntarily went with him to his house. He confirmed that the complainant was intoxicated but opined that she was still able to walk. They went into his room, and the complainant initiated sexual intercourse with him in his room,” the judgment read. 

Judge Wille said: “In our view, considering the circumstances of this case, for the complainant to have consented to sexual intercourse with the appellant, her acquiescence must have been sufficiently free, informed and complete to have enabled her to take responsibility in the eyes of the law for her choice. We hold the view that the facts (even on the appellant’s version) point away from consensual sex. Even after the alleged rape, the complainant was in a state of unconsciousness (semi-consciousness).”

Cola’s appeal was heard while the Constitutional Court is yet to make a landmark judgment concerning consent and consensual sex. 

In their persistence for law reform, the applicants have sought from the court to declare sections of the Act unconstitutional and invalid, where the challenge hinges on specific provisions dealing with sexual offences in which the absence of consent is a constituent element, most notably rape.

Last month, during oral arguments to the apex court, the parties argued that parts of the Criminal Law (Sexual Offences and Related Matters) Act, 32 of 2007, concerning consent, are unconstitutional.

The applicants submitted that the Act, as it is currently framed, undermines the rights of victims and survivors of sexual violence, including their rights to equality, dignity, privacy, bodily and psychological integrity, and freedom and security of the person.

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