[LISTEN] CALS: ConCourt ruling on ‘common purpose’ rape to help fight GBV
The Centre for Applied Legal Studies (CALS) has welcomed the Constitutional Court's decision to apply the common purpose doctrine to rape cases, saying it will prove vital for the fight against gender-based violence.
On Wednesday 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 court received input from two amici; the Commission for Gender Equality (CGE) and the Centre for Applied Legal Studies (CALS). The CGE argued that our law already allows for the doctrine to apply to common law rape and that the instrumentality approach is artificial as there is 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 assault or murder," the judgment read.
Landmark ruling on common purpose in rape cases
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.
Candidate attorney at CALS Busisiwe Kamolane says the judgment changes the face of South African rape law.
"Some of the arguments that we were making, and the judgment highlights that, is that the understanding of rape requiring the instance of a body to commit it is such a patriarchal understanding of what rape really is and it misses the point that rape is a power crime," said Kamolane.
"If you had a common purpose, if you've agreed with a group of people to commit rape whether you are the person that switches off the light or you are the person that holds down a woman's body or you're the person standing guard on the door while other people are raping a woman then you are just part and parcel of that rape and you should equally be found guilty of the same crime."
Kamolane adds that the judgment will assist in fighting the scourge of gender-based violence.
"This judgment really goes into detail in highlighting the problem that we had before and why it is so important for the doctrine of common law to be extended in rape cases, particulty in gang rape.
"The judgment highlights how we can really partner with the judiciary, with laws of South Africa and with society in really moving the country one step forward for its fight against gender-based violence."
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.
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.
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.
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.