Constitutional court rules doctrine of common purpose also applies to rape

The constitutional court held on Wednesday that the doctrine of common purpose applied to the common law crime of rape.

The court made this finding as it dismissed an appeal by two men who were convicted of rape 20 years ago under the doctrine of common purpose. They were jailed for life after a reign of terror in Tembisa.

Though there was no basis that the two, and six accomplices, all raped eight women, they were convicted on the basis of common purpose - when a group of people commits a crime, all in the group are held liable.

Before their conviction, the doctrine of common purpose did not apply to rape but applied to other crimes, including murder and assault.

In September 1998, Jabulane Tshabalala, Annanius Ntuli and six other men unleashed a reign of terror in Tembisa and forced their way into several homes where they caused damage to property. They also raped eight female occupants in nine homes. Some of the women were raped repeatedly by several in the group. The youngest victim was a 14-year-old girl.

While some of the men raped the female occupants, others were posted outside to act as lookouts.

The gang members were arrested and charged in 1999.

They were found guilty by the Johannesburg high court of eight counts of rape respectively, seven of which were imposed on the basis of the application of the doctrine of common purpose.

In determining that the doctrine applied to common law rape, the high court held that the attacks were not spontaneous but were planned.

The high 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.

Tshabalala and Ntuli sought leave to appeal from the high court, which was refused.

Nine years later, Tshabalala petitioned the Supreme Court of Appeal (SCA) for leave to appeal against his conviction and sentence. The application for leave to appeal was again dismissed.

In the Constitutional Court, Tshabalala and Ntuli contended that the doctrine of common purpose did not apply to common law rape because the crime of rape required the unlawful insertion of a male sexual organ into the female sexual organ, or the so-called “instrumentality” argument.

Acting justice Rammaka Mathopo, in a majority judgment, dismissed the appeal by Tshabalala and Ntuli.

Mathopo said the instrumentality argument was flawed.

He said there was no reason the use of one’s body should be determinative in the case of rape but not in the case of other crimes where the doctrine of common purpose applied, such as murder and assault.

Mathopo said to toss away the sound doctrine of common purpose would do a grave injustice to direct and indirect victims of gender-based violence.

“This would give power to men or perpetrators who have raped women with impunity in the knowledge that the doctrine would not apply to them,” Mathopo said.

He said the “instrumentality” argument had no place in modern society.

“It ignores the fact that rape can be committed by more than one person for as long as the others have the intention of exerting power and dominance over the women, just by their presence in the room.”

Two other judgments concurred with Mathopo’s judgment.