UPDATE: During the December 11 handing down of judgement, the Constitutional Court ruled that the doctrine of common purpose applies to the common law crime of rape.
The Constitutional Court heard the final submissions on whether or not the doctrine of common purpose applies to the common law crime of rape. The Centre for Applied Legal Studies (Cals) as a friend of the court (amicus curiae) and the Commission for Gender Equality intervened in the case. Judgement has been reserved in the case. The Daily Vox takes a look at what is being argued in the case.
Busisiwe Kamalone from Cals told The Daily Vox that the reserving of judgement means the judges will look at all the submissions. After considering everything that has been said, they will come back and give the judgement. The judgement date will be announced once the judges make a decision.
What’s the court case about?
In 1998, Jabulani Tshabalala and Annanius Ntuli were found guilty of seven counts of rape. They were part of a criminal gang from Johannesburg breaking into homes in Tembisa. They committed robbery, assault, and rape in a number of shacks.
A lot of the rape survivors were gang-raped. This led the High Court to rule that the doctrine of common purpose applied to rape. The two men were convicted of these crimes under the legal doctrine of common purpose.
Tshabalala and Ntuli have appealed their convictions saying that the doctrine of common purpose should not apply to rape. The applicants say the doctrine of common purpose does not or should not apply to the crime of common law rape. Their application is based on the assertion “that common law rape is not an offence for which an individual can be found guilty through the doctrine of common purpose.”
Cals have been granted leave to intervene in the case. They along with the Commission for Gender Equality argue that “it would be arbitrary to apply common purpose to some crimes but not to sexual offences.” They presented the court with academic evidence showing the psychological experiences of survivors of sexual violence and risk factors associated with these crimes.
The head of the gender programme at Cals, Sheena Swemmer said: “This is an incredibly important case that has major implications for our law and for survivors of sexual violence.”
Swemmer said: “Not only would it be arbitrary to exclude crimes like rape from common purpose, but, more importantly, it would not respond to the realities of how these crimes are perpetrated in our country.”
Cals argues that the “doctrine of common purpose is applicable to common law rape as well as all other sexual offences, and is in fact constitutionally required.”
What is common purpose?
Common purpose is a doctrine that states that “if a number of people have a common purpose to kill, the act of that participant to the common purpose who actually caused the death of the deceased is imputed to the other participants who actively associated themselves with the attainment of the common purpose.”
It is a legal doctrine which gives criminal liability to participants “involved in criminal activity for all that results from such activity.”
It essentially means that an accused can be convicted of murder from this law without having “caused or contributed causally to the deceased’s death.” This has been a controversial law for many years.
This law came into practise after a 1906 ruling. The court said a person who aids and abets a crime should be liable for the same punishment as the actual perpetrator. The ruling meant an accomplice “could be charged and convicted of the substantial crime (for example rape, selling unwrought gold or drugs, etc) as if he had been the perpetrator or the actual offender.”
Kamalone said the doctrine of common purpose works where the group agree beforehand to commit a crime, then the act of one person becomes imputed on all of them.
Common law rape is defined as a penis penetrating a vagina. Cals are calling for the common purpose to be applied to this definition of rape to allow for people to be held accountable.
“We’re saying the doctrine of common purpose should apply to the common law rape,” said Kamolane adding that currently the doctrine doesn’t apply to common law rape or any other rape.
Kamolane says the issue with this case is that the courts have to been applying the doctrine of common purpose to rape. She says the argument has been that in order for rape to happen, there needs to be instrumentality. Cals is saying that the argument misunderstands why rape is.
“We want the Constitutional Court to make it clear that common purpose does apply to the common law definition of rape,” said Kamolane. She says that this will ensure that those involved in gang rape will not be escape liability. This is regardless of to what extent the person is involved.
“This will be a major shift in the fight against gender-based violence in South Africa,” said Kamolane adding that it will be a major victory for rape law in South Africa.
Author’s Note: This story has been updated with the judgement.