Recent Case: Criminal law

• Date: 06 July 2020
• Author: Anderson, A.
• Published date: 06 July 2020
• Citation: (2020) 33 SACJ 213
• 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 liability, in the

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

the ground-breaking judgment in Tshabalala v The State; Ntuli v The

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

differentiating opinions of South African courts on whether someone

can be convicted of rape if it cannot be proven that they themselves

had penetrated the victim, by responding to this question in the

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

participants in a crime may share liability, regardless whether they all

participated in each and every element of the crime. The unanimous

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

and Victor AJ delivering separate but concurring judgments) 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 rights to

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

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

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

culture (para [63]).

1.1.2The facts

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

an orgy of brutality 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

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(2020) 33 SACJ 213

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