Common Purpose and Sexual Assault: The Evolution of South African Legislation

I. Introduction

The South African criminal justice system is designed to protect the nation and its people by upholding the rights of victims and punishing those who perpetrate harmful, unjust acts against the community. Although the law is in place, South Africa faces an increasing amount of gender-based violence (GBV), with the crime of rape having been used as a tool to relegate women to second-class citizens by stripping them of their bodily integrity and human dignity.¹ According to the Human Sciences Research Council, approximately 222,462 women face sexual violence in South Africa annually, requiring a strong and resolute legislative and judicial response.

Although the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 provides protection against such crimes, sexual assaults committed by a group of individuals have been difficult to prosecute because of the legal uncertainty surrounding participation and intent. Crimes committed by a group are governed by the common-law doctrine of common purpose — a criminal law principle whereby, when two or more people participate in unlawful activities with a common criminal intent, all parties are held criminally liable. This doctrine is often applied in cases involving murder, mob violence and armed robbery.

Although historically criticised for the role it played during apartheid, the Constitutional Court in S v Thebus and Another (2003) confirmed the constitutionality of the doctrine, finding that it allows the state to dismantle organised criminal conduct.²

However, when applied to sexual violence, the doctrine faced historical limitations. The common-law crime of rape was traditionally seen as an offence that could only be committed by an individual using their own body, and courts would not hold non-penetrating co-perpetrators liable. This article shows how Tshabalala v S and Ntuli v S dismantled that rule and aligned the law with constitutional norms.

II. The Concept of Common Purpose and Imputation

A. The Concept of Imputation

Under the doctrine of common purpose, imputation refers to the collective legal liability for the criminal act of one member of a group, where there is evidence of a common intention to commit and execute the crime.³ The principle of shared liability is the legal basis for this: by taking part in a joint act, each participant shows through their behaviour that they accept the others’ actions as their own, forfeiting their individual identity and being treated as one for purposes of criminal liability.⁴ Conduct is imputed, but mens rea is never imputed — the state must still prove that each individual had the required intention or negligence for the specific crime.⁵

The doctrine of common purpose exists primarily to control crime, particularly in relation to group-based unlawful activity.⁶ Its aim is to make collective criminal conduct punishable, since society needs a way to deal with crimes committed by joint enterprises, and to prevent the unfair result where only the individual who committed the final act is convicted while others who planned and encouraged it avoid full accountability.⁷ This is especially important under South Africa’s constitutional framework, as it prevents perpetrators from escaping consequences by hiding behind technical arguments about who personally carried out each part of a crime.

The practical rationale for imputation lies in the difficulty of proving causation in group crimes: it is often nearly impossible to show that one person’s act directly caused the prohibited outcome.⁸ Snyman offers the following example:“Assume that a group of twenty people decided to kill Y by stoning him to death, and in fact do so. In order to determine whether a particular member of the group caused Y’s death according to the ordinary principles, one must apply the condition sine qua non test and ask if the act of that particular member of the group were ‘thought away,’ would Y nevertheless have died?”⁹

Imputation resolves this problem by removing the requirement to prove each person’s individual contribution, replacing it instead with the requirement of active association or prior agreement.¹⁰

B. History of Common Purpose

Historically, the doctrine of common purpose was received into South African law from English law through section 78 of the Native Territories’ Penal Code (Act 24 of 1886), which provided that where individuals share a common goal in carrying out an unlawful act, each party will be held responsible for any offence committed by the others in the group, provided that offence was a probable outcome of what they set out to do.¹¹ In the early 1900s, the doctrine’s development became intertwined with the Roman-Dutch concept of the socius criminis, confirmed in R v Peekhan and Lallo (1906), where the court removed technical distinctions between principals and accessories. For years the doctrine was used in trials involving political violence, which led to it being viewed with a measure of stigma and criticism for being applied too widely.¹²

S v Malinga and Others 1963 is one of the cornerstone Appellate Division cases concerning this form of criminal liability. It was decided that where a group of people partakes in illegal activity, a readiness to use violence is enough to hold all members responsible. This approach shaped many group-violence cases, making all participants co-perpetrators of a crime rather than mere accomplices. It was rejected by many legal scholars because it resembled strict liability, allowing the state to secure a conviction without proving individual fault. This flaw was later addressed in S v Safatsa and Others, which held that the state must still prove, beyond reasonable doubt, that each participant had the required state of mind to commit the specific crime.

Following this, S v Thebus and Another (2003) was another landmark Constitutional Court decision. The Court ruled that the doctrine did not infringe the rights to dignity, freedom and security of the person, and that it is constitutionally connected to the valid aim of restraining and controlling crimes committed by groups. This case remains the leading authority confirming that this form of liability does not undermine the rules of evidence or an accused’s right to a fair trial.

C. Requirements of Liability

S v Safatsa and Others (1988) set out two categories of common purpose: prior agreement to commit a crime, and active association.¹³ Prior agreement exists where there was a previous agreement between the parties to commit a crime; where such evidence is presented, it is straightforward to establish that each party associated themselves with the offence. Where there is no such proof, the active-association test applies instead.¹⁴ This is followed by S v Mgedezi and Others (1988), which sets out the requirements for active association. Snyman summarises these requirements as follows:“(1) X must have been present at the scene where the violence was being committed; (2) X must have been aware of the assault on Y by somebody else; (3) X must have intended to make common cause with the person or persons committing the assault; (4) X must have manifested his sharing of a common purpose by himself performing some act of association with the conduct of the others.”¹⁵

These requirements exist to ensure that a bystander is not falsely convicted, and that each party’s fault is assessed separately.

III. The “Autographic” Barrier and the Legal Position Before the Tshabalala Decision

A. Traditional Rape Law and Instrumentality

An “autographic crime” is one that can only be committed by a person through their own body, or a specific part of it.¹⁶ These are known as instrumental crimes, where the law requires the perpetrator to personally perform a physical act. Crimes such as rape, bigamy, perjury and incest were traditionally thought impossible to commit through another person. A person had to physically use their own body and penetrate the victim for the courts to find them guilty of rape under the common law.

The traditional definition of rape referred to unlawful sexual intercourse by a man with a woman without her consent.¹⁷ This definition was narrow: it required physical penetration of the female genitalia by the male genitalia, which failed to account for the many acts that could reasonably be considered rape, and was limited to the binary categories of male and female. Because the definition was confined to heterosexual, penile-vaginal penetration, courts found it difficult to apply the common purpose doctrine to rape.¹⁸ As a result, the law concentrated on the physical act itself rather than treating the crime as a broader act of power, control and humiliation.

Traditionally, the law resisted applying the common purpose doctrine to rape because of the instrumentality argument: it was argued that rape was inherently a physical act of penetration, and that it was impossible to convict as a co-perpetrator someone who did not personally commit that act.¹⁹ This created a barrier in group-rape cases — if one individual raped a victim while another restrained her, the individual who assisted but did not penetrate the victim would only be convicted as an accomplice, rather than a co-perpetrator.

Scholars such as Snyman insisted that the body’s role as the instrument of the offence was decisive. Critics, however, argued that the distinction was artificial and unprincipled, since there is no reason to treat the use of one’s own body as more significant for rape than it is for crimes such as murder or assault. Making penetration the sole requirement for perpetrator status meant that individuals who actively participated in gang rapes could escape full liability and be convicted only of lesser offences.²⁰

B. Analysis of Phetoe v S (2018) and the Trial Court Approach

In Phetoe v S, the appellant had previously been convicted on multiple counts of rape based on the doctrine of common purpose; this conviction was later revisited by the Full Court. The Full Court accepted the evidence that the appellant had joined a group that terrorised and raped the complainants, but held that applying common purpose to the crime of rape presented a legal difficulty. The appellant’s liability was accordingly reduced from co-perpetrator to accomplice, on the reasoning that common purpose cannot be applied to crimes requiring the instrumentality of a person’s own body. Because the state failed to prove beyond reasonable doubt that the appellant had personally performed the act of penetration, the court held that he could only be convicted as an accomplice.

By contrast, in S v Tshabalala the trial court held that the group had operated as a cohesive whole and that the attacks followed a clear, systematic pattern. It reasoned that common purpose had formed before the attacks, which displaced the instrumentality argument, and ruled that the acts of those who carried out the penetration should be imputed to all members who assisted in the crime.²¹ The court noted how the group worked together — posting lookouts and covering occupants with blankets during the rapes — as sufficient evidence that planning had taken place before the crime.

The accomplice-based approach in Phetoe adhered to the traditional definition of the crime. In Tshabalala, it was argued that this approach lacked principle and was irrational, because it allowed facilitators of such crimes to escape full liability despite their role in planning it. Treating such participants as accomplices ignores the point that group rape is not an individual act but is committed collectively through shared intent.

The common purpose doctrine is better aligned with crime control and the protection of constitutional values. Its purpose is to overcome the unfair results that arise where causation is difficult to establish in group attacks. Courts have nonetheless cautioned that excessive use of the doctrine risks undermining basic rules of participation where a conviction rests on an accused’s mere presence, without proof of conduct actually connecting them to the crime committed.

The Constitutional Court in Tshabalala resolved this divide, holding that the application of common purpose to rape was correct and that the instrumentality argument was outdated and incompatible with the Bill of Rights.²²

IV. The Constitutional Court’s Redefinition of Group Sexual Assault

A. The Decision of S v Tshabalala and Another (2020)

S v Tshabalala and Another is a landmark Constitutional Court decision confirming that the doctrine of common purpose applies to rape. In 1998, several men in Tembisa attacked multiple homes by throwing stones on their roofs and raped a total of eight women, including a 14-year-old girl and a visibly pregnant woman, while other members of the group acted as lookouts. The men were convicted of rape based on common purpose, but challenged the conviction on the basis that, since they had not personally penetrated the victims, they could not be convicted as co-perpetrators of rape.

The Constitutional Court rejected the instrumentality argument as irrational, explaining that it had originated in a patriarchal system in which women were viewed as personal property.²³ It found the argument incompatible with sections 9, 10 and 12 of the Constitution. The Court also held that common purpose existed on the facts, since the rapes were the planned execution of a joint criminal enterprise rather than a series of individual acts — evidenced by the group moving in an arranged sequence and using members as lookouts. The Court further noted that the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 had already expanded the definition of rape to include penetration by inanimate objects, rendering the biological requirement of male genitalia legally irrelevant.²⁴

The judgment reconceived rape as an act less about sex and more about power expressed through humiliation and degradation. In the context of gang rape, the Court accepted that the mere presence of several men operates as an instrument of domination used to intimidate women.²⁵ Justice Khampepe described rape as “structural and systemic, rooted in historically entrenched power imbalances between men and women.” The Court framed sexual violence as a means by which some men seek to reassert masculinity and control, treating women as property within a patriarchal system.

B. Constitutional Values: Dignity, Equality and Security

Section 9 of the Constitution guarantees that everyone is equal before the law and has the right to equal protection and benefit of the law. The instrumentality argument promotes discrimination and gender inequality, which is why the Court held it irrational to apply the common purpose doctrine to murder and assault but not to rape, merely because a genital organ was used to commit the offence.

The Court recognised rape as a humiliating act used to degrade individuals, which is incompatible with section 10 of the Constitution. By rejecting the instrumentality requirement, the Court dismantled a legal rule rooted in patriarchal norms under which women were historically treated as property. This ensures that the law is aligned with the Constitution going forward, affirming women’s absolute dignity rather than measuring their worth as objects.²⁶

Section 12 (Freedom and Security of the Person) includes the right to be free from all forms of violence, whether from public or private sources, and the right to bodily and psychological integrity. The Court made clear that women have a claim to live without the fear that diminishes their quality of life. Extending criminal liability to everyone who acts together in a joint criminal enterprise is treated as an essential measure to combat the widespread problem of group rape and to protect the safety and security of society’s most vulnerable people.

C. Obligation to International Law and SORMA

South Africa has international obligations, such as those under CEDAW, to protect people from discrimination and all forms of violence. CEDAW compels the abolition of discrimination against women and of cultural norms that violate the Bill of Rights.²⁷ Rape remains a growing problem in South Africa — a crime used to degrade the victim and to enforce authority and fear, making the perpetrator feel superior. CEDAW exists to ensure equality between genders and to abolish discriminatory laws and stereotypes.

This international obligation formed part of the basis for the Constitutional Court’s decision to convict all members of the group as co-perpetrators of rape, even where penetration did not occur. It ensures that group participants in sexual assault can no longer shield themselves behind the label of “accomplice.”

The Constitutional Court’s decision in Tshabalala has reshaped South African law and thinking on common purpose in relation to “autographic” crimes. This decision was not made merely to protect women, or to be seen as a feminist victory, but to protect people of all genders who experience sexual violence, whether at the hands of an individual or a group.²⁸ It aligns with South Africa’s international obligations, such as CEDAW, and is a necessary tool for combating rape regardless of race or gender.

The Constitutional Court in Tshabalala used SORMA’s expanded statutory framework to overturn outdated common-law barriers and eliminate the concept of instrumentality. The Court pointed out that, because Parliament had removed the physical-instrument requirement from the legal definition of sexual penetration, the common law could no longer treat rape as so personal an act that only the physical perpetrator could be held liable. While this may seem harsh to some accused persons, protecting the nation’s people against such crimes is far more important, and this legislative enhancement was needed to close the loophole. Society continues to evolve, and the law must adapt with it. The elimination of these traditional, patriarchal norms has strengthened the protection afforded to South African citizens.

V. Conclusion

The application of the common purpose doctrine to sexual assault in S v Tshabalala and Another illustrates the significance of the Constitutional Court’s supremacy and has transformed South African law. The traditional common-law view that rape is a crime requiring one’s own physical body exposed a loophole that allowed individuals who planned unlawful group activity, such as gang rape, to escape full liability. By rejecting this view as irrational, the Constitutional Court aligned the law of participation with the values of the Bill of Rights.

This transformation of the law is evidence of society’s evolution, and of how legislation can adapt to meet it. The expanded definition of rape has closed a legal gap that previously allowed perpetrators of gang rape to escape conviction on a lesser charge — affirming that rape is a serious criminal offence, and reinforcing the priority owed to human dignity and bodily integrity.

Reference(S):

Cases

S v Malinga and Others 1963 (1) SA 692 (A).

S v Mgedezi and Others (415/1987) [1988] ZASCA 135.

S v Phetoe (1361/2016) [2018] ZASCA 20.

S v Safatsa and Others (242/1986) [1987] ZASCA 150. [Case-name spelling to be confirmed against source — see Analysis Report]

S v Thebus and Another (CCT36/02) [2003] ZACC 12.

S v Tshabalala and Another 2020 (2) SACR 38 (CC).

Legislation

Constitution of the Republic of South Africa, 1996.

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

Criminal Procedure Act 51 of 1977.

Secondary Sources

Willis-Smith CT, “In Defence of the Doctrine of Common Purpose” (LLM dissertation, University of Cape Town 2021).

Hlongwane N, “A Critical Analysis of the Offence of Rape in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007: Identifying Challenges and Providing Solutions Thereto” (LLM dissertation, University of KwaZulu-Natal 2021).

Hoctor S, “The Genesis of the Common Purpose Doctrine in South Africa” (2023) 26 PER/PELJ 1.

Nyawo P, “Telling the Untold in Rape: Khampepe J’s Separate Judgement in Tshabalala v S; Ntuli v S” (2024) 38 Speculum Juris 538.

Snyman CR, Criminal Law (7th edn, LexisNexis 2020).

Note(S):

1. Pamela Nyawo, “Telling the Untold in Rape: Khampepe J’s Separate Judgement in Tshabalala v S; Ntuli v S” (2024) 38 Speculum Juris 538, 542.
2. Catherine Tara Willis-Smith, “In Defence of the Doctrine of Common Purpose” (LLM dissertation, University of Cape Town 2021) 2.
3. S v Tshabalala and Another 2020 (2) SACR 38 (CC) [49].
4. CR Snyman, Snyman’s Criminal Law (7th edn, LexisNexis 2020) 226.
5. Shannon Hoctor, “The Genesis of the Common Purpose Doctrine in South Africa” (2023) 26 PER/PELJ 2.
6. Hoctor (n 5) 2.
7. Snyman (n 4) 231.
8. Snyman (n 4) 225.
9. Snyman (n 4) 224.
10. S v Tshabalala and Another 2020 [56].
11. Hoctor (n 5) 4–5.
12. Hoctor (n 5) 9–10.
13. Snyman (n 4) 227.
14. Snyman (n 4) 228.
15. Snyman (n 4) 228.
16. S v Tshabalala and Another 2020 [14].
17. S v Tshabalala and Another 2020 [28].
18. S v Tshabalala and Another 2020 [52].
19. S v Tshabalala and Another 2020 [34].
20. S v Tshabalala and Another 2020 [54].
21. S v Tshabalala and Another 2020 [9]–[11].
22. S v Tshabalala and Another 2020 [66].
23. Snyman (n 4) 25.
24. S v Tshabalala and Another 2020 [44].
25. S v Tshabalala and Another 2020 [52].
26. Snyman (n 4) 25.
27. S v Tshabalala and Another 2020 [93].
28. Nyawo (n 1) 544.