Two gang members trying to overturn their numerous rape convictions could be the catalyst for a change in legislation that could see rape added to the list of ‘common cause’ crimes. The men were members of a gang that raped several women during a night-long crime spree in Tembisa in 1998.

Though there was no evidence that they physically raped the victims, they were convicted on the basis of common cause. The prisoners are asking the Constitutional Court to clarify a SCA decision that their convictions should stand, says a Sunday Times report.

The Centre for Applied Legal Studies has joined the matter.

Gang members Jabulane Tshabalala, Annanius Ntuli and Tebogo Phetoe and four others were found guilty in the Gauteng High Court (Johannesburg) on dozens of counts of rape, housebreaking and robbery. When they appealed, the SCA overturned seven of Phetoe’s eight rape convictions. The court said there wasn’t enough proof that he was aware of the violence and rape taking place elsewhere during the rampage, and therefore should not have been convicted.

Tshabalala and Ntuli, whose appeals failed, then approached the Constitutional Court.

In its submissions, the Centre for Applied Legal Studies says the two men’s argument is that under the current legal definition, a person cannot be convicted of rape under the doctrine of common purpose, notes the Sunday Times report.

The centre argues that if this was so, rape as a common law charge could only refer to the act of inserting a penis into a vagina. It says SA’s courts take an ‘arbitrary’ approach to classifying rape as a common cause crime.

The centre is also arguing that the SCA ruling in Phetoe’s case was incorrect, and that the logic behind it was flawed. Because rape is ultimately about power, it says, all members of a group involved in such an assault are guilty, regardless of whether they themselves physically commit rape.

The Constitutional Court is set to hear the case next month.

Full Sunday Times report (subscription needed)