Here’s how the common purpose rule now applies to gang rape

In a unanimous judgment last week, the Constitutional Court found that not applying the common purpose rule to gang rape enables impunity and prejudice against victims of gender-based violence.

Common purpose is a legal rule which holds each member of a group liable as a perpetrator where they share the common intention to commit a crime. When this rule is applied, the conduct of one member of the group is attributed to that of the other members.

For example, if person A and person B agree to rob a bank, but only person A physically removes the cash from the bank, while person B stands watch at the entrance, both A and B are liable as perpetrators and liable for the full applicable sentence.

This, however, is different from being held liable as an accomplice. An accomplice is a person who merely furthers the commission of a crime committed by another person.

Background to the case

On 20 September 1998, a group of men rampaged through several homes in the Umthambeka section of Tembisa in the middle of the night.

The group ransacked, looted and stabbed one occupant and raped eight women, some of whom were raped repeatedly by several members of the group. The youngest rape survivor was 14 and another was pregnant.

On 23 November 1999, Jabulane Tshabalala and Annanius Ntuli together with their co-accused were convicted of eight rape charges in the Johannesburg High Court, seven of which were imposed on the basis of common purpose.

In June 2016, a full bench of the same court set aside the conviction of one of the co-accused, Tebogo Phetoe. It found that the common purpose rule could not apply to rape. As a result, he was convicted as an accomplice, not a perpetrator.

In 2018, the Supreme Court of Appeal found that there was insufficient evidence to convict Phetoe as an accomplice, and set aside his conviction entirely.

Following this ruling, Tshabalala and Ntuli approached the Constitutional Court in 2018 to set aside all but one of their convictions as well. They argued that the common purpose rule cannot apply to sexual crimes such as rape.

They argued that because common law rape could only be committed by physically penetrating a victim, the common purpose rule cannot apply. This is known as the “instrumentality approach”.

The Centre for Applied Legal Studies and the Commission for Gender Equality also made submissions as friends of the Court. They argued why the common purpose rule should be applied in order to address gender-based violence.

The Constitutional Court then had to determine whether the common purpose rule applied to common law rape and whether there was any rational basis for the common purpose rule to apply to other crimes such as murder or assault but not common law rape.

Knowingly participated and fully associated with criminal acts

The court noted that essentially, common purpose happens in two scenarios. The first is where there is a prior agreement. The second is where there has been active association and participation in a common criminal design.

The court found that the facts demonstrated that the criminal acts in Tshabalala and Ntuli’s matter did not happen by chance or randomly. The fact that they moved from house to house and covered the victims with blankets meant that it was planned and coordinated.

It said that Tshabalala and Ntuli as co-perpetrators knowingly participated in the criminal acts and fully associated themselves with those acts and that their argument that they are not liable because they did not physically penetrate the victims is disingenuous.

Considering the correctness of the instrumentality approach, the court said: “In instances of group rape, the mere presence of a group of men results in power and dominance being exerted over women victims.” Not applying the common purpose would enable impunity and prejudice victims of gender-based violence, the court said.

The court said that the instrumentality approach must be discarded because its “foundation is embedded in a system of patriarchy where women are treated as mere chattels”.

If common purpose applies to murder it should apply to rape

The court found that the presence of the co-perpetrators who encouraged and facilitated the commission of the crime was just as important as the act of physical penetration. If common purpose applies to crimes like murder, and assault there is no reason it should not apply to rape, the court said.

The court also emphasised that gender-based violence is “a scourge in our society” and that the judiciary could address it by correcting the misguided and misinformed view that rape is a crime which is purely about sex. “The court must not be implicated in perpetuating patriarchy and rape culture,” the ruling stated.

Justices Sisi Khampepe and Margaret Victor each wrote concurring judgments. Justice Khampepe recalled the “intersectional” nature of rape in South Africa by emphasising how rape affects black women disproportionately and requires a response that addresses both structural racism and patriarchy.

Khampepe wrote: “Rape at its core is an abuse of power expressed in a sexual way. It is characterised with power on one side and disempowerment and degradation on the other.”

Khampepe highlighted how rape was structural and systemic. “We must not lose focus that what needs to be addressed is not merely a handful of abhorrent individuals but dismantling an abhorrent system. The recognition that rape is structural and systemic necessitates the application of the common purpose rule,” she said.

The court dismissed Tshabalala and Ntuli’s appeal and made no order as to costs.

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