Authored By: Brandon Mxolisi Sifuba
University of Fort Hare
- Introduction
The Constitutional Court (CC) in Tshabalala v The State; Ntuli v The State 2019 ZACC delivered a judgment based on the issue where Mr Tshabalala and Mr Ntuli appealed from the High Court after being convicted and sentenced to effective life sentences. This judgment raised a significant issue of the prosecution of rape: whether the doctrine of common purpose applies to the common law crime of rape, and if not, whether we have any rational basis to have a distinction between the common law crime of rape and various crimes where applicable. The applicants were arguing that, in terms of common law, rape is considered an offence which, in nature, can only be committed by a male using his own genitalia and not by a third person who is merely present when the offence occurred and through conduct, namely, association and participation, which promotes or encourages the success of the completion of the offence.[1]
- Factual background
On 23 November 2019, Mr Tshabalala, Mr Ntuli, and their co accused they resorted to violence in the Umthambeka section of Tembisa, Gauteng. They were found guilty on various counts of rape, respectively, with other counts imposed based on the application of common doctrine. The attacks were not random; they were carefully orchestrated following the plan to instil fear and to confuse the vulnerable persons.[2]
The perpetrators were identified at the scene by some of the witnesses who the High Court had considered to be credible. Convicted for counts such as looting, possessing, holding a firearm, and demanding. One of their tricks involved throwing stones onto rooftops and acting like police officers by shouting the word police. This was done with the hope of misleading the occupants. When they did not receive any response, they would force entry by breaking down the doors and intentionally assaulting the people inside. Males in some of the residences were forced to lie down with blankets covering their heads when the women were being raped.[3]
The group raped eight female occupants, and the youngest victim was 14 years old. Another victim looked physically pregnant, but that did not discourage the group. The attacks were planned, while other members committed rapes, some of them posted outside as guards, showing that the attacks were not spontaneous but were well planned and executed to ensure that all the assaults were accomplished without being interrupted. The community experienced humiliation as the members left unforgettable scars. A few weeks after that, the law enforcement convicted the perpetrators. They were brought to the High Court on 13 August 1999 to face their vile crime.[4]
The litigation that occurred became significant when it came to addressing conduct beyond individual liability of the persons accused, but also to examine broader principles. The proceedings involved the doctrine of common purpose when it comes to the crime of rape in South African common law. This case explores criminal conduct and individual liability, exposing how the law is applied when two or more people commit various crimes.[5]
- The Legal Issues
The issue was whether the doctrine of common purpose applies to the common law crime of rape, and if not, whether we have any rational basis to have a distinction between the common law crime of rape and various crimes where applicable. The applicants were arguing that, in terms of common law, rape is considered an offence which, in nature, can only be committed by a male using his own genitalia and not by a third person who is merely present when the offence occurred and through conduct, namely, association and participation, which promotes or encourages the success of the completion of the offence.[6]
- The Parties Argument
4.1 The Appellants Argument
The Appellants argued that their convictions and their life sentences based on the doctrine of common purpose must not be applicable to the common law crime of rape. They argued that according to the South African Common law, rape can only be considered rape when it is directly committed by an individual, as he is the one that performing the act of penetration using his own genitalia.[7]
They argued that accountability for rape cannot be developed to include the person who is merely associated with the person committing the conduct, through encouraging the conduct, and not using their own genitalia to penetrate the person. The Appellants were arguing that the development of the common purpose of rape would improperly expand the crime and compromise the laws of individual criminal accountability.[8]
They were depending on the old common law definition of rape and principles that differentiated between conduct crimes from conduct that is done by two or more persons. Their submission was that when comparing to crimes such as murder or robbery, rape requires the actual person to physically do the conduct; they cannot be held accountable based on association.[9]
4.2 The Respondent’s Argument
The court contended that the doctrine of common purpose is applicable in all crimes where individuals acted in association to achieve a serious crime, including rape. It was argued that the planned attacks proved that there was a common purpose to achieve the crime. This includes the members, such as the ones who were guarding entrances and preventing any disturbance to ensure that the rape is accomplished.[10]
The respondent argued that to hold accountable the persons who physically raped the victims would compromise the difference between rape and other violent offences and would allow members participating in the conduct of the members who rape people to be not held accountable for their ignorance when it comes to rape. The state depended on the judicial precedents to acknowledge that common purpose is attributes accountability where the perpetrators had an intention to associate themselves with the conduct and promote the success of the offence.[11] The respondents highlighted section 10 of the Constitution,[12] where everyone has the right to human dignity. The argument was that there must be an effective way to handle such sexual offences.
- The Legal Question
The Court’s reasoning looked at whether any laws existed to exclude the doctrine of common purpose from the common law definition of rape. The exclusions were rejected, specifying that the doctrine of common purpose must be applied to rape cases the same way it is applied to other crimes involving collective participation.[13] The court found that to exclude rape would be irrational and inconsistent with the right to equality in terms of section 9 of the Constitution[14] and section 10 of the right to human dignity under the Constitution[15].
if one individual stands by while another commits an act of rape, he or she could also be guilty as an accomplice by virtue of his or her inaction and failure to stop or prevent the act of rape taking place. We submit that accomplice liability is a more just and logical approach to follow in cases where two or more persons act together, but only one of them actively commits the crime of rape with his or her body.
- The Constitutional Interpretation of Rape
The court highlighted that rape must not be viewed merely as a non consensual sextual intercourse. However, it is considered the unlawful enforcement of power and to dominate a person, violating their right to human dignity. Based on the previous judicial precedents, such as the case of S v Masiya[16] it was held that the definition unfairly excluded anal penetration of women, which violated their constitutional rights. Now the definition of rape includes the sexual penetration of the male penis into the vagina or anus of another person without their consent. The court conveyed that rape was an infringement of a person’s constitutional rights, such as the rights to privacy and human dignity.
The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, replaced the common law definition with a statutory definition that now includes all forms of non-consensual sexual penetrations, such as vaginal, anal. The recognition that both men and women can be victims and perpetrators. The law became clear and fair for all and provided clear guidance for prosecutions.
- Accomplice
An individual who stands and does nothing while another person commits the crime of rape will be considered an accomplice and will be held liable for the failure to prevent the perpetrator from committing the offence. Accomplice accountability is the favourable approach in cases where two or more persons acted collectively, but only one person committed the crime of escape physically with his or her own body (Stevens & Carstens, 2021).
7.1 The right to a fair trial
The Court examined arguments that applying the doctrine of common purpose might compromise fairness to the perpetrators, but the limitations were rejected. It was held that the recognition of the doctrine of common purpose strengthens the level of accountability while maintaining a fair trial in the same process.[17]
- Judgement
The court held that the doctrine of common purpose is applicable to the South African common law crime of rape. The appeals were dismissed, and the convictions of the High Court were approved. There was no order of costs. It was also held that collective criminal conduct may be held accountable for rape even without physically and directly committing sexual penetration.[18]
- The decisive Constitutional development
The judgment provided a decisive Constitutional development in South African criminal law by approving that the doctrine of common purpose applies to the crime of rape. Its significance is the rejection of the old definition that rape can be committed by a person who physically performs the penetration. By putting in line the definition of rape with the Constitutional rights made it clear that criminal accountability must be in line with the collective unlawful conduct[19].
An alternative approach might have involved distinguishing sentencing outcomes based on levels of participation while still affirming liability. Nevertheless, the decision’s broader impact is substantial: it closes accountability gaps, strengthens protection against collective sexual violence, and signals that South African criminal law will evolve consistently with constitutional imperatives. Future prosecutions involving group offences are likely to rely heavily on this precedent, ensuring that collective perpetrators are held fully accountable[20].
The Court’s strength is sections 9 and 10 of the Constitution[21], which reformed rape to be considered an abuse of power and human dignity, not merely through a physical act. This approach promoted substantive equality by exposing perpetrators who violate people indirectly. This was done by recognising the various roles that the members had, such as being the guard to ensure that the raping was a success without being interrupted. Furthermore, the feminist legal perspectives and international instruments show an improvement in the global interpretation of sexual offence laws[22].
Conclusion
The Constitutional Court highlighted a significant point in South African law by allowing the doctrine of common purpose to apply to the crime of rape. The underdeveloped definition of the crime of rape was rejected with the notion that it limited accountability only to the person who directly performed the penetration. Now it is recognised that rape can also occur through people working together. Criminal accountability in line with the constitutional rights of the right to equality and human dignity. The court emphasised that all the members who find themselves intentionally with perpetrators who commit rape will also be held liable. The new definition of rape closed the significant loopholes that were exposed by our South African law when it comes to direct or indirect sexual violation participation and enhanced safety for the victims. However, there is a level of uncertainty that remains concerning the sentencing and the difference between the levels of participation. The decision taken has improved the country’s legal rights. This case marked a constitutional duty to deal with systemic sexual violence, and that the South African law will continue to reform society’s realities and fundamental human rights.
Bibliography
Legislation
The Constitution of the Republic of South Africa 1996.
The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.
Case Law
S v Masiya 2006 2 SACR 357 T.
Tshabalala v The State; Ntuli v The State 2019 ZACC 48.
Articles
Bluebook 22nd ed. G. P. Stevens & P. A. Carstens, Revisiting the Application of the Doctrine of Common Purpose in the Context of Rape – S v Tshabalala 2020 2 SACR 38 (CC), 84 THRHR 253 (May 2021).
[1] 2019 ZACC 48.
[2] 2019 ZACC 48.
[3] 2019 ZACC 48.
[4] 2019 ZACC 48.
[5] 2019 ZACC 48.
[6] 2019 ZACC 48.
[7] 2019 ZACC 48.
[8] 2019 ZACC 48.
[9] 2019 ZACC 48.
[10] 2019 ZACC 48.
[11] 2019 ZACC 48.
[12] The Constitution of the Republic of South Africa 1996.
[13] 2019 ZACC 48.
[14] The Constitution of the Republic of South Africa 1996.
[15] The Constitution of the Republic of South Africa 1996.
[16] 2006 11 BCLR 1377 T.
[17] 2019 ZACC 48.
[18] 2019 ZACC 48.
[19] 2019 ZACC 48.
[20] 2019 ZACC 48.
[21] The Constitution of the Republic of South Africa 1996.
[22] 2019 ZACC 48.
