In September 1998, a group of seven men rampaged through a shack settlement in Tembisa, raping eight women. They were convicted of a number of counts of robbery, assault and rape under the doctrine of common purpose.

However, in 2018, the SCA overturned the original High Court decision of one of the gang members and set aside his sentence and charges – but only for rape.

In light of this, two other members of the gang approached the Constitutional Court to do the same.

The question before the Constitutional Court last week was whether the doctrine of common purpose could be applied to common law rape and if so, whether the two could be held liable in terms of the doctrine.

Sheena Swemmer, an attorney at the Centre for Applied Legal Studies (CALS) at Wits University, says CALS argued before the Constitutional Court that the principle can and must apply to common law rape and all other sexual offences.

In an analysis on the New Frame site, Swemmer says in this case, the doctrine was challenged based on the assertion that rape is a crime that can only be committed by one person – and the act cannot be attributed to others. However, she says this ‘literal’ interpretation of common law rape fails to grasp the true nature and effects of the crime.

Rape, she says, is based on male dominance and the exertion of power by the perpetrator over the person harmed.

If we see rape as an act of dominance and humiliation – and as an attack on dignity – then it is untrue that this can only be committed by one individual. A group of people can collectively rape someone: some can hold a person down, some can watch and cheer, others can take videos of the rape, but ultimately they are collectively asserting power and dehumanising.’

Ultimately, Swemmer adds, the group are all committing the acts associated with rape, even if only one individual penetrates the person harmed.

They are all rapists. In light of this, the doctrine of common purpose must apply to cases of rape.’

Full analysis on the New Frame site

CALS Constitutional Court heads of argument