Progressive or regressive rape case law? : Tshabalala v S; Ntuli v S 2020 2 SACR 38 CC

• DOI: 10.17159/2413-3108/2022/vn71a12401
• Published date: 01 November 2022
• Date: 01 November 2022
• Pages: 1-11

5 – 1

SA CRIME QUARTERLY NO. 71 • 2022

Progressive or regressive

rape case law?

Tshabalala v S; Ntuli v S 2020

2 SACR 38 CC

South African

The Constitutional Court’s decision in Tshabalala v S; Ntuli v S 2020 2 SACR 38 CC is undoubtedly

a step in the right direction towards rape law reform in South Africa, however, this article challenges

the court’s decision to extend the application of the common law doctrine to common law rape. It is

argued that the court could have highlighted the power dynamics at play during the commission of

rape without denouncing instrumentality as a central element of the crime. This article further argues

that the Constitutional Court, in developing common law rape, should have taken into account that

rape is a conduct/instrumental crime under the Criminal Law (Sexual Offences and Related Matters)

Amendment 32 of 2007. Instead, the judgment now has the effect of creating different elements for

common law rape, in cases where there is more than one perpetrator.

CR I ME QUA RT E R LY

Ropafadzo Maphosa1

ropamaphosa@gmail.com

https://doi.org/10.17159/2413-3108/2022/vn71a12401

No. 71 | 2022

Introduction

In South Africa, rape is not a rare or exceptional

incident, rather, it is a common experience in

the daily lives of women. Despite the enactment

of progressive gender-based violence laws, the

country has battled this scourge for many years,

thereby earning the dubious title of being the

‘rape capital of the world’.2 Courts and local

news editorials bear testament to the frequency

with which rape occurs across the country and

the gruesome nature of such incidents.3 Group

rape (also known as multiple perpetrator rape or

gang rape), in particular, has reached alarming

proportions over the years.4

One of the loopholes in South African law,

which has created diff‌iculties for prosecuting