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Con Court rules common purpose applies in rape cases

- Lee-Anne Bruce

CALS appeared in the Constitutional Court today for a landmark judgment that confirms a person can be found guilty of rape on the basis of common purpose

The Constitutional Court today handed down a ground-breaking judgment which has important implications for how gang rapes are treated in our law. The matter was brought before the Court by two men, Jabulane Tshabalala and Annanius Ntuli, who had been part of a criminal group operating in Tembisa breaking into homes to commit robbery, assault and rape. 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.

Earlier this year, the men approached the Constitutional Court to appeal their convictions, contending that the doctrine of common purpose should not apply to the crime of rape. CALS intervened in the matter as a friend of the court, along with the Commission for Gender Equality. We argued that it would be arbitrary to apply the principle of common purpose to most crimes and not rape, and emphasised that rape is a crime of power and humiliation.

Today, the Constitutional Court agreed. In a judgment by Mathopa AJ, the Court has found that the applicants’ argument was not only flawed, but “perpetuates gender inequality and promotes discrimination” and “has no place in our modern society founded upon the Bill of Rights. It is obsolete and must be discarded because its foundation is embedded in a system of patriarchy”.

Further, the judgment holds that the Court “would be failing in its duty if it does not send out a clear and unequivocal announcement that the South African Judiciary is committed to developing and implementing sound and robust legal principles that advance the fight against gender-based violence... One such way in which we can do that is to dispose of the misguided and misinformed view that rape is a crime purely about sex. Continuing on this misguided trajectory would implicate this Court and courts around the country in the perpetration of patriarchy and rape culture.”

“This is a historic judgment for survivors of sexual violence,” says Vuyolethu Mntonintshi. “The Court has recognised that rape is a crime of power and dominance and that everyone involved must be held equally liable. This judgment acknowledges the reality of how the crime of rape is perpetrated in our country and takes a vital step towards ensuring our laws respond to this reality.”

Read the full judgment here.

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