On Wednesday the Constitutional Court handed down a ground-breaking judgment with significant implications on how gang rapes will be treated in South African law and courts. The judgement essentially states that under the basis of “common purpose” those associated with a group, or groups, guilty of a gang rape could be found guilty of rape as well – even if an individual involved did not engage in the act of penetration him/herself.

The matter ruled on was brought before the Constitutional Court by two men, namely: Jabulane Tshabalala and Annanius Ntuli. The two were reportedly part of a criminal group operating in Tembisa, Gauteng, guilty of breaking into homes to commit robbery, assault and rape. According to the Centre for Applied Legal Studies at Wits University, “The men were found guilty of these crimes on the basis of common purpose, a principle of our law used to deal with crimes that are committed by groups.”

The two men had approached the Constitutional Court to appeal their convictions, arguing that the doctrine of common purpose should not apply to the crime of rape.

The Centre for Applied Legal Studies then intervened in the matter and argued that “it would be arbitrary to apply the principle of common purpose to most crimes and not rape.”

The Court found that the applicants’ argument was flawed and “perpetuates gender inequality and promotes discrimination” and that such an argument “has no place in our modern society founded upon the Bill of Rights.”

Essentially, regardless of whether the two men penetrated the victims of rape themselves, they could be found guilty of committing an act of rape.

The logic of this ruling was explained by a lawyer from the Centre for Applied Legal Studies, Vuyolethu Mntonintshi.

“Sometimes when a woman is being gang raped, it’s difficult to pinpoint who are the ones who did the act,” he said.

“If you look in terms of the facts of the case, not only did they just rape these women, they would blindfold them so that it’s difficult for the women to pinpoint who among the group of them did the act and actually penetrated…”

Mntonintshi continued, saying that prior to the ruling under common purpose, the blindfolding of victims could have absolved whoever did the physical act of penetration because the perpetrators would not be easily identifiable. Now, if you are a part of a group that commits a rape, even if the victims are blindfolded, you are also guilty of the crime as someone who has penetrated – regardless of whether you were, in fact, guilty of penetration.

The concept of common purpose means that you must have associated yourself with the crime committed, with prior agreement, according to Mntonintshi. The common purpose understanding therefore is about whether you actively associate yourself with the crime or whether you, prior to the act, agreed that the crime was something to be carried out.

“We need to establish if they have what is called a criminal purpose or agreement,” said Mntonintshi.

If, as an innocent civilian, you happen to be walking down a street and witness someone being raped, the judgement does not necessarily mean that you could be found guilty under common purpose as well.

VOC