Constitutional Court to rule on “common purpose” in rape cases

The Constitutional Court has been asked to rule on whether or not the doctrine of “common purpose” can be applied to rape: in other words, whether or not people who share the intent to rape can be convicted of rape even if they did not all physically rape the victim.

The Court heard oral argument on 22 August 2019 in a case arising from crimes committed in Tembisa by a group of young men in September 1998. They rampaged through several homes in the early hours of the morning, committing several crimes including assault, robbery and rape. In 1999, all the men involved were found guilty of common law rape in the Johannesburg High Court, based on the legal rule known as “common purpose.”

In June 2016, a full bench of the same court set aside the conviction of one of the men, Tebogo Phetoe, because it found that the common purpose rule cannot apply to rape. As a result, he was convicted as an accomplice, not as 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.

As a result of this ruling, two of the other men, Jabulane Tshabalala and Annanius Ntuli, who had been convicted on eight counts of rape, 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.

Common purpose is a legal rule applied to crimes committed by more than one person where all those involved have a common intention to commit the crime. For example, if A and B have a common intention to rob a bank, even if only A physically removes the cash, and B just assists in some way, both A and B will be guilty of robbery. When the common purpose rule is applied, each guilty party is regarded as a perpetrator who is liable for the sentence applicable to that crime. The conduct of one accused is imputed to his or her co-accused.

But the law also provides for something known as an accomplice. An accomplice is a person who merely furthers the commission of a crime committed by another person. In this case, Tshabalala and Ntuli allege that neither of them physically penetrated the victims and should only be liable as accomplices, not as perpetrators.

The distinction between common purpose and accomplice matters because of the sentence which may be imposed. Where A and B are convicted based on common purpose, each of them is regarded as a co-perpetrator who is liable to the full sentence for that crime. But if only A is regarded as a perpetrator and B is regarded as an accomplice, then B will serve a lesser sentence than A.

The state is opposing the application by Tshabalala and Ntuli to have their rape convictions set aside. The Centre for Applied Legal Studies (CALS) and the Commission on Gender Equality (CGE) applied to be friends of the court to argue why the common purpose rule should indeed apply to sexual offences such as rape.

The arguments of the accused

Ntuli and Tshabalala argue that the common purpose rule should not apply to sexual offences like rape because rape is an “instrumental” offence. The gist of this argument is that in committing the offence of rape, the rapist uses his body to overpower and penetrate the victim. Phetoe did not penetrate the victim but stood on the bed and watched his co-accused penetrate the victim while laughing; he was accused of rape through the common purpose rule which holds him responsible because of his failure to disassociate himself from the offence.

Similarly, Tshabalala and Ntuli argue that they did not penetrate the victim in this case. Therefore, they argue, the Constitutional Court should follow the decision of the Johannesburg High Court in Phetoe’s matter and only regard them liable as accomplices.

The state’s arguments

The state argues that there is no reason why the common purpose rule should not apply to rape when it does apply to assault. They argue that if the court can establish that there was a prior agreement to commit the crime in question then the common purpose rule should always apply.

CALS arguments

Admitted as a friend of the court, CALS argues that the instrumentality approach reduces rape to an act of unlawful penetration. In fact, they say, rape is an assertion of power and the instrumentality approach is reductionist and sexist.

CALS argues that the law should impose obligations on people to dissociate themselves from acts of sexual violence and that the law should take a victim-centred approach to sexual crimes like rape. A victim-centred approach would establish two requirements for common purpose liability:

• The facts must establish that the group had the intention to commit the common law crime of rape.

• The facts must establish that each of the accused had the intention to carry out the crime on behalf of the group.

The gist of CALS’s arguments is that for violent sexual crimes, in order to escape liability each accused must demonstrate that he actively dissociated himself from the unlawful acts of the group. They argue that because rape is a power crime, the mere presence of a large group of men surrounding a woman adds to the sense of powerlessness and trauma of the victim. Presence at the scene is intent to act in common purpose, or at the very least reasonably foresee the inevitability of the crime, they argue.

Commission on Gender Equality’s arguments

The Commision on Gender Equality argues that the instrumentality approach is artificial and unprincipled. Malicious damage to property or assault is also committed through the use of one’s body, the Commission says, yet the common purpose rule does apply to these crimes.

The Commission also points out that the Constitutional Court has emphasised that the common purpose rule exists to deter joint criminal enterprises. Where rape is committed by a group, there is a pressing social need to hold perpetrators accountable, since rape is considered a national crisis, they argue.

The Commission also argues that international criminal tribunals have found that the doctrine of joint criminal enterprise should apply to the crime of rape. Some of these tribunals found that even an accused who only provided “moral support” could be held liable for rape.

Lastly, the Commission argues that the common purpose rule should apply to rape in order to ensure that the state meets its constitutional and international obligations to combat gender-based violence.

The Constitutional Court has reserved judgment.

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