The Doctrine of Common Purpose and the Crime of Rape
Constitutional Court judgment
On 11 December 2019 the Constitutional Court handed down judgment in the matter of Tshabalala v S (Commissioner for Gender Equality And Centre For Applied Legal Studies As Amici Curiae); Ntuli v S CCT323/18 & CCT69/19. This matter involved the applicants (and their co-accused) of various charges including the common law crime of rape based on common purpose.
On 20 September 1998, the applicants together with their co-accused, went on a rampage in the Umthambeka section of the township of Tembisa in Gauteng. The men broke into houses and caused malicious damage to property. During all this, the men raped eight women occupants. Some of the women were raped repeatedly by members of the group. The youngest victim was a 14year-old girl. Whilst some of the men raped the women, the others stood as lookouts.
Charges and convictions
The members of the group were apprehended and charged. After a lengthy trial, the High Court convicted the men involved of:
- seven counts of housebreaking with the intention to rob;
- eight counts of common law rape;
- four counts of assault with intent to do grievous bodily harm;
- one count of common assault;
- two counts of malicious damage to property; and
- one count of attempted robbery.
Of the eight counts of common law rape, seven were based on the doctrine of common purpose. The Court held that a common purpose must have been formed before the attacks began and that the rapes were executed pursuant to a prior agreement in furtherance of a common purpose.
Appeals and the Constitutional Court
The matter has taken in appeal and eventually landed in the Constitutional Court. In the Constitutional Court the applicants argued that the doctrine of common purpose does not apply to common law rape because the common law crime of rape requires the unlawful insertion of the male sexual organ into the female sexual organ. On the applicants’ submissions, it was simply impossible for the doctrine to apply, as by definition, the causal element cannot be imputed to a co-perpetrator as the instrumentality of one’s body is required for the commission of the crime.
It was submitted by the respondent that the instrumentality argument is wrong when a prior agreement has been proved because the conduct of each accused in the execution of that purpose is imputed to the other.
The Constitutional Court concurred with the respondent. The Constitutional Court stated that the instrumentality approach is flawed. There is no reason why the use of one’s body should be determinative in the case of rape but not in the case of other crimes such as murder and assault. The instrumentality argument has no place in our modern society founded upon the Bill of Rights as it perpetuates gender inequality and promotes discrimination.
The Constitutional Court judgment held that the applicants knowingly and with the requisite intention participated in the activities of the group and fully associated themselves with its criminal designs. It is insincere to now contend that because they did not penetrate the complainants, they should not be found guilty on the basis of the doctrine. That argument, the main judgment continued, loses sight of the fact that the main object of the doctrine is to bring into the net and criminalise collective criminal conduct and in the process address societal needs to combat crime committed in the course of joint enterprises. It is because of that reason that the causal prerequisite in consequence crimes such as murder, robbery and assault was found to be ineffectual.
The Constitutional Court has take a harsh stance against the crime of rape. South Africa has a very high prevalence of rape. This judgment laments rape and its perpetrators.
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