Recent Case: Criminal law

• Date: 06 July 2020
• Author: Anderson, A.
• Published date: 06 July 2020
• Pages: 213-224

Criminal law

ADRIAAN ANDERSON

University of Limpopo

1 General principles

1.1 Common purpose

1.1.1 Introduction

The application of the principles of common purpose liabi lity, in the

context of rape, was recently claried by the Constit utional Court in

the ground-breaking judgment i n Tshabalala v The State; Ntuli v The

State 2020 (3) BCLR 307 (CC), 2019] ZACC 48. This sett led years of

differentiating opinions of South A frican courts on whether someone

can be convicted of rape if it cannot be proven that they them selves

had penetrated the victim, by respondi ng to this question in the

afrmative. The doc trine of common purpose implies that t wo or more

participants in a cr ime may share liability, regardless whether they all

participated in each and every element of the cri me. The unanimous

judgment of the court was delivered by Mathopo AJ (with Khampepe J

and Victor AJ delivering separate but concurring judgment s) who held

that ‘for far too long rape has been used as a tool to relegate women

of this country to second- class citizens, over whom men can exercise

their power and control, and in doing so, strip them of their right s to

equality, human dignity and bod ily integrity’ (para [1]). Moreover, the

court held that the general misconception th at rape is a crime purely

about sex had to be challenged in order to combat patriarchy and rape

culture (para [63]).

1.1.2 The facts

The case before the court stems from a r ampage and reign of terror,

an orgy of brutalit y and plunder perpetrated by a group of young

men one night in September 1998 when they ransacked a section of

the township Tembisa, forcing entry to several shacks, ransacking and

looting as far as they went. The ood of violence also included the rape

of eight women, some of them repeatedly and by several members of

RECENT CASES

213

(2020) 33 SACJ 213

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