Commission for Gender Equality welcomes ‘timeous’ ConCourt ruling on common purpose in gang rape

The Commission for Gender Equality (CGE) has welcomed a ruling by the Constitutional Court dismissing a case of two rapists who went on a rampage, raping women in a suburb of Tembisa in Gauteng 21 years ago.

The men lost a bid to change the law so that the doctrine of common purpose does not apply to rape cases. The ruling was delivered on Wednesday.

The two men, Jabulane Tshabalala and Annanius Ntuli, were convicted of the September 1998 rapes and sentenced to life in prison.

In a statement issued on Friday, the commission said: “The judgment was timeous, as it was handed down when the 16 Days of Activism of No Violence against Women and Children has come to an end and the 365 days kicking.

“It is apparent that the ConCourt has sent out an unequivocal message of the judiciary’s commitment to develop and implement the strongest laws to fight South Africa’s scourge of gender-based violence.”

According to court papers, when the men approached some of the homes of their victims, they pretended to be police, threw rocks and stones on the roofs, and shouted: “Police! Police!”

Eight women were raped, some repeatedly, by some members of the group. The youngest victim was 14 and one was visibly pregnant.

The men were convicted of seven counts of housebreaking with intent to rob, eight counts of rape, four of assault with the intent to do grievous bodily harm, one of common assault, two of malicious damage to property, and one of attempted robbery.

Of the eight rape convictions, seven were on the basis of the doctrine of common purpose.

This means that the court found that even though they didn’t penetrate the victims, they were guilty of rape because they were part of a group of men who had a common intent to commit the crimes.

But the two believed that the doctrine of common purpose should not apply to rape, and armed themselves with this argument when the matter went to court.

The High Court found that the rapes were executed after a prior agreement in the furtherance of a common purpose and rejected their assertion that the doctrine of common purpose did not apply.

Tshabalala and Ntuli later lodged an application for leave to appeal, which the High Court refused. Tshabalala petitioned the SCA for leave to appeal in 2009, but this attempt also failed.

The men then turned to the Constitutional Court, which found that that the High Court’s finding that the accused acted in the furtherance of a common purpose could not be faulted.

In its statement, the CGE said the court’s judgment was as a landmark one and would have a significant impact on women’s rights.

It also said the judgment would allow for the more effective prosecution of perpetrators involved in gang rape.

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