The Constitutional Court held yesterday that the doctrine of common purpose applied to the common law crime of rape. It made the finding in dismissing 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, notes a TimesLIVE report. Though there was no basis that the two, and six accomplices, all raped eight women, they were all convicted on the basis of common purpose.

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

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

In determining that the doctrine applied to rape, the High Court held that the attacks were not spontaneous.

It 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. And nine years later, Tshabalala petitioned the SCA for leave to appeal against his conviction and sentence.

The application was again dismissed.

Acting Constitutional Court Justice Rammaka Mathopo, in a majority judgment, dismissed the appeal by Tshabalala and Ntuli, who had contended that the doctrine did not apply to rape because rape required the unlawful insertion of a male sexual organ into the female sexual organ, or the so-called ‘instrumentality’ argument.

Mathopo said the instrumentality argument was flawed, notes the TimesLIVE report.

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.’

Full TimesLIVE report

Judgment