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Case  CCT323/18 & CCT69/19
[2019] ZACC 48

Hearing Date:      22 August 2019      
Judgement Date: 11 December 2019

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Wednesday, 11 December 2019 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against the convictions and sentences handed down by the High Court of South Africa, Gauteng Division, Johannesburg (High Court).  The High Court convicted the applicants together with their co-accused of various charges including the common law crime of rape on the basis of common purpose. This application concerned the proper application of the doctrine of common purpose to the common law crime of rape.

On 20 September 1998, a group of young men – the applicants together with their coaccused – went on a rampage in the Umthambeka section of the township of Tembisa in Gauteng.  The men broke into houses and caused malicious damage to property. The terror that poured out onto this community was well orchestrated and meticulously calculated and during all this, the men raped eight women occupants.  Some of the women were raped repeatedly by members of the group.  The youngest victim was a 14year-old girl.  Whilst some of the men raped the women, the others stood as look-outs.

In the weeks that followed, the members of the group were apprehended and charged and on 13 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, four counts of assault with intent to do grievous bodily harm, one count of common assault, two counts of malicious damage to property, and one count of attempted robbery.  Of the eight counts of common law rape, seven were on the basis of the doctrine of common purpose.  The Court 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.

The applicants, Mr Tshabalala and Mr Ntuli, sought leave to appeal from the High Court which was refused.  Nine years later, Mr Tshabalala unsuccessfully petitioned the Supreme Court of Appeal for leave to appeal against his convictions and sentences.  In November 2012 Mr Phetoe, who was one of the co-accused, was granted leave to appeal his convictions and sentence to the Full Court of the High Court.

The Full Court held that the doctrine of common purpose cannot be applied to crimes that can be committed only through the instrumentality of a person’s own body.  Therefore, the doctrine could not apply to the common law crime of rape.  Consequently, the Full Court altered his conviction to one of being an accomplice in respect of the common law crime of rape.  Dissatisfied with this outcome, Mr Phetoe applied for and was granted special leave to appeal to the Supreme Court of Appeal.

On appeal, the Supreme Court of Appeal reversed the findings of the High Court on the application of common purpose, disagreeing with the High Court that members of the group had a prior agreement to commit the crimes. The Supreme Court of Appeal upheld the appeal and set aside the conviction of being an accomplice to rape.  Spurred on by the successful appeal of Mr Phetoe, the applicants applied to the Constitutional Court for leave to appeal against their convictions and sentences.

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.  On the applicants’ submissions, it was simply impossible for the doctrine to apply, as by definition, the causal element cannot be imputed to a co-perpetrator as the instrumentality of one’s body is required for the commission of the crime.  The respondent submitted that the instrumentality argument is wrong when a prior agreement has been proved because the conduct of each accused in the execution of that purpose is imputed to the other.

The Court received input from two amici; the Commission for Gender Equality (CGE) and Centre for Applied Legal Studies (CALS).  The CGE argued that our law already allows for the doctrine to apply to common law rape and that the instrumentality approach is artificial as there is no reason why the use of one’s body should be determinative in the case of rape but not in the case of assault or murder.  CALS argued that the Trial Court was correct, that common purpose applies to the common law rape.  CALS engaged with the patriarchal roots of the common law concerning rape and sexual violence.

The main judgment penned by Mathopo AJ and concurred in by Mogoeng CJ, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Theron J and Victor AJ held that the instrumentality approach is flawed.  There is no reason why the use of one’s body should be determinative in the case of rape but not in the case of other crimes such as murder and assault.  The instrumentality argument has no place in our modern society founded upon the Bill of Rights as it perpetuates gender inequality and promotes discrimination.

The main judgment held that the applicants knowingly and with the requisite intention participated in the activities of the group and fully associated themselves with its criminal designs.  It is disingenuous to now contend that because they did not penetrate the complainants they should not be found guilty on the basis of the doctrine.  That argument, the main judgment continued, loses sight of the fact that the main object of the doctrine is to bring into the net and criminalise collective criminal conduct and in the process address societal needs to combat crime committed in the course of joint enterprises.  It is because of that reason that the causal prerequisite in consequence crimes such as murder, robbery and assault was found to be ineffectual.

The main judgment bemoaned the fact that for far too long rape has been used as a tool to relegate the women of this country to second-class citizens, over whom men can exercise their power and control, and in so doing, strip them of their rights to equality, human dignity and bodily integrity.  The high incidence of sexual violence suggests that male control over women and notions of sexual entitlement feature strongly in the social construction of masculinity in South Africa.  Some men view sexual violence as a method of reasserting masculinity and control over women.

The main judgment further noted that the rape scourge has reached alarming proportions in South Africa and that joint efforts by the courts, society and law enforcement agencies are required to curb this pandemic.  One way in which the Judiciary can do this is by disposing of the misguided and misinformed view that rape is a crime purely about sex.  Continuing on this misguided trajectory would implicate the Constitutional Court and courts around this country in the perpetuation of patriarchy and rape culture.

The main judgment held that the High Court’s application of the doctrine cannot be faulted and the applicants’ appeal must therefore fail.

The second judgment penned by Khampepe J and concurred in by Froneman J, Jafta J, Madlanga J, Mathopo J, Mhlantla J and Theron J concurred in the main judgment by Mathopo AJ.  The second judgment noted that rape is often mischaracterised as an act of non-consensual sexual intercourse when it is more aptly understood as a violent and gendered imposition of power.  Being able to describe rape in the correct terms is vital in the ability to understand the violation at its core.

In addition, the second judgment noted that the pervasive statistics of rape in this country indicate that the country’s current rhetoric which presumes that rape is committed by sexually deviant monsters may not capture the full scale of the problem.  Rape is committed by fathers, brothers, uncles, husbands, lovers, mentors, bosses and colleagues.  This illustrates that rape is not rare, unusual and deviant.  It is structural and systemic.  While those that commit rape act abhorrently and grotesquely, the search for an identifiable “monster” may miss the fact that a rapist cannot be identified simply by recourse to their physical appearance, their standing in the community or their relationship to the victim or survivor.  The second judgment concluded that it would be irrational to not apply the doctrine of common purpose to the common law crime of rape.

The third judgment penned by Victor AJ, concurred in the judgments of both Mathopo AJ and Khampepe J.  The third judgment embraced some concepts in feminist legal theory that had been raised during oral argument and the influence of international law in the development of our common law as it relates to the common law crime of rape.  The third judgment noted that, historically, our jurisprudence demonstrates a number of embedded patriarchal gender norms in the law, such as the procedural rules of evidence in relation to rape.  The acceptance of the doctrine of common purpose in this case marks the eradication of one of the remaining obstacles to rape convictions, through the infusion of constitutional values to common law.

The third judgment noted further that the various international instruments to which South Africa is a party illustrate the universal importance of protecting and enhancing domestic laws that protect the most vulnerable members of our society.  These international instruments place an obligation on the State, including the Constitutional Court, to develop domestic laws to ensure that women are protected from sexual violence.

The Full judgment  here