Concourt applies common purpose doctrine to rape

In a historic judgment for sexual abuse victims, the Constitutional Court has ruled that the legal doctrine of common purpose must be applied to rape.

Earlier this year, the Centre For Applied Legal Studies (CALS) joined an application by three convicted gang members, Jabulane Tshabalala, Annanius Ntuli and Tebogo Phetoe, seeking to overturn their multiple rape convictions.

The trio was part of a gang whose members committed rape but Tshabalala, Ntuli and Phetoe were bystanders and did not themselves rape anyone. By joining the court proceedings, CALS was able to transform the trio’s appeal application into a motion that sought to tighten the law on rape and common purpose.

Common purpose is the legal doctrine that means one can be convicted of a crime even if one does not directly participate in the act. In the gang members’ matter, they argued they should not have been found guilty because they didn’t commit the rapes themselves; they were simply bystanders as their fellow gang members committed the crime.

The three, members of a gang that raped several women and a 14-year-old in a nightlong crime spree in Tembisa in 1998, have spent years fighting their numerous convictions.

In the Constitutional Court, CALS argued there were other crimes where common purpose could apply, such as murder or robbery, and that the apex court needed to clarify the rules surrounding rape. This was after Phetoe overturned seven of his eight rape convictions in one application at the SCA. The other two had their appeal dismissed before a different panel of judges.

The centre was critical of the gang members’ arguments that rape could only be the insertion of a penis into a vagina. Because rape was actually about power, rather than the sexual act, all members of a group involved in it should be found guilty, regardless of their physical contribution, the centre argued.

The ruling by nine Concourt justices was presented on Wednesday by acting justice Ramaka Mathopo, confirming common purpose could apply to rape matters, calling the gang members’ arguments flawed and dismissing their appeal.

“The relationship between rape and power must be considered when analysing whether the doctrine [of common purpose] applies to the common law crime of rape ... It is disingenuous to now contend that because they did not physically penetrate the complainants they should not be found guilty,” the ruling read.

Elated CALS representative Vuyolethu Mntonintshi said: “The court has recognised rape is a crime of power and dominance and that everyone involved must be held equally liable. This is a historic judgment for survivors of sexual violence.”

Because rape was actually about power, rather than the sexual act, all members of a group involved in it should be found guilty