CGE welcomes the ConCourt Judgement: Tshabalala Jabulane v State; Ntuli Annanius v the State CC

Release Date: 13 December 2019

To: Editors, Producers and Reporters

The Commission for Gender Equality (CGE) welcomes the Constitutional Court (ConCourt) judgment handed down on the 11 December 2019. The main question in the case was whether the doctrine of common purpose can be applied to the common law crime of rape.  The application of the doctrine of common purpose to the common law crime of rape was based on the definition and interpretation of the existing law. The judgment was timeous as was handed down when the 16 Days of Activism of No Violence against Women and Children has come to an end and the 365 days kicking. It is apparent that the ConCourt has sent out an unequivocal message of the judiciary’s commitment to develop and implement the strongest laws to fight South Africa’s scourge of gender-based violence.  

The ConCourt heard an appeal from the High Court in August 2019 in respect of a group of men who went on a late-night reign of terror through nine plots in Umthambeka in Tembisa. The group of men forced their way into the homes on the plots where they ransacked, looted, robbed, assaulted and stabbed the occupants. They performed gang rapes of the women; in one incident they raped a visibly pregnant woman and a 14-year-old girl.

The attacks were found to be well orchestrated and meticulously calculated; with a predetermined pattern of attacks. The group was apprehended and charged. The attacks brought into focus the applicability of the doctrine of common purpose on the common law crime of rape, which CGE – as the first amicus curiae advised the court to consider in this case. CGE is empowered by section 187 (1) of the Constitution of South Africa to promote respect for gender equality, and for that reason applied to be friends of the Court with regards to this case. In its application it argued that the Court should interpret the law to allow common purpose to apply to the common law crime of rape. 

CGE fully understood that common purpose is the legal principle which applies to a scenario when two or more individuals engage in a joint criminal enterprise such as murder. The principle of common purpose allows – in certain circumstances – certain acts committed by one individual in the group to be attributed to others in the group. In other words, if a group of men agree and facilitate the successful rape of a woman, the application of common purpose will ensue and everyone involved whether physical or by mere association to be convicted of rape, regardless of who ended up penetrating the victim.

The Constitutional Court’s main judgment by Mathopo J held that the instrumentality argument by the applicants is flawed and that there was 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 second judgment concurred in the main judgment by noting that rape in this country has not been viewed as rare, unusual or deviant. It is a general view that it is structural and institutional, and it would be irrational not to apply the doctrine of common purpose to the common law crime of rape.

The third judgment also concurred with the first and second judgments and further noted that historically, South Africa’s jurisprudence demonstrates patriarchal gender norms in the law and the acceptance of common purpose in this case marks a remove of one of the remaining obstacles to rape convictions by infusing constitutional values to common law.

This is seen as one landmark judgment which will have a significant impact on women’s rights to bodily and psychological integrity, freedom and security of the person and will allow for more effective prosecution of perpetrators involved in gang rape.