ConCourt judgment changes laws on gang rape
Under the doctrine of common purpose, someone is guilty of rape if they were part of a group who committed the act, whether they participated or not.
The Constitutional Court. Photo: Ashraf Hendricks/GroundUp
On Wednesday, the Constitutional Court handed down a judgment that has implications for how gang rape is dealt with in South African law, upholding a judgment which found that those involved in a gang rape can be considered guilty of rape even if they themselves haven’t physically raped anyone.
The judgment relates to an incident back in September 1998, when a group of men went on what the court said in a statement was a “rampage” which included the rape of eight women, the youngest of which was 14 years old.
“In the weeks that followed, the members of the gang were apprehended and charged and on 19 August 1999, were brought before the high court. After a lengthy trial, the high court convicted the men involved of seven counts of housebreaking with the intention to rob, eight counts of common-law rape,” the ConCourt judgment reads.
“Of the eight counts of common-law rape, seven were on the basis of the doctrine of common purpose.”
Two of the accused, Jabulani Tshabalala and Annanias Ntuli, challenged their conviction for rape at the ConCourt, applying for leave to appeal their convictions, which has been denied.
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The pair believed they were not guilty of rape as they didn’t actually commit rape but were part of a group of people who did. They argued they should be seen as accomplices, rather than as perpetrators under the doctrine of common purpose, which carried a heavier sentence.
“In the Constitutional Court, the applicants contended that the doctrine of common purpose does not apply to common-law rape because the common law crime of rape requires the unlawful insertion of the male sexual organ into the female sexual organ,” the judgment reads.
However, the court found that the common purpose doctrine should hold, meaning rape goes beyond the alleged perpetrator’s physical involvement in the crime.
“The main judgment held that the applicants knowingly and with the requisite intention participated in the activities of the gang and fully associated themselves with its criminal design,” the judgment adds.
(Compiled by Daniel Friedman)
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