Landmark ruling on common purpose in rape cases
The Constitutional Court has ruled that the common purpose doctrine applies to rape cases, changing the way gang rapes are treated by a court of law.
The highest court in the land sought to establish whether the doctrine of common purpose could be applied to the common law crime of rape, as with murder and assault.
The doctrine is defined as two or more people agreeing to commit a crime or actively associate in a joint unlawful venture - each will be responsible for the acts of the others.
The ruling relates to a case that dates back to 1998 when a group of men went on a rampage at an informal settlement in Tembisa committing a number of crimes including rape.
Eight women were raped, the youngest a 14-year-old girl.
Whilst some of the men raped the women, the other stood as look-outs.
"In the weeks that followed, the members of the gang were apprehended and charged and on 19 August 1999, were brought before the High Court. After a lengthy trial, the High Court convicted the men involved of seven counts of housebreaking with the intention to rob, eight counts of common law rape, " the ConCourt judgement reads.
"Of the eight counts of common law rape, seven were on the basis of the doctrine of common purpose."
Some were convicted under common law for being an accomplice to rape, but an applicant disagreed, saying the purpose - to rape the women - must have been formed before the attacks began.
ALSO READ:
Man drives head-on into truck after allegedly killing wife and step-daughter
It is alleged that the 37-year-old man took the family car and drove head-on into an oncoming truck near Bela-Bela. Police spokesperson Motlafela Mojapelo says the man died instantly. Police found the lifeless bodies of the wife and the step daughter in the family's house.
In 2018 Annanius Ntuli and Jabulane Tshabalala approached the ConCourt to have their sentences and charges set aside.
In the Constitutional Court - the applicants argued that the doctrine cannot apply in terms of the common law - because the definition of rape requires a man to physically violate a woman sexually.
"In the Constitutional Court the applicants contended that the doctrine of common purpose does not apply to common law rape because the common law crime of rape requires the unlawful insertion of the male sexual organ into the female sexual organ."
The court disagreed, saying there is no reason why the use of one's body should be determinative in the case of rape but not in other crimes such as murder and assault.
"The main judgement held that the applicants knowingly and with the requisite intention participated in the activities of the gang and fully associated themselves with its criminal design," the judgement adds.
Earlier this year Police Minister Bheki Cele released the latest crime stats, which revealed the large extent of sexual crimes in the country.
In a country plagued by femicide, 41,583 incidents of rape were reported to the police, while 7,437 people said they had suffered sexual assault.
The number sexual assault cases against children rose by 899.
READ SUMMARY OF THE JUDGEMENT BELOW:
