In criminal law, the doctrine of common purpose establishes that where two or more people agree to a commit a crime, each will be responsible for the acts of the others that fall within their common purpose or design.  In the landmark judgement of Tshabalala v The State; Ntuli v The State, the South African Constitutional Court held that this doctrine applies to the crime of rape.

The case concerned an incident in 1998 where a group of young men went on a “well-orchestrated and meticulously calculated” rampage – breaking into houses, destroying property and raping 8 women, including a woman who was visibly pregnant and a 14-year-old girl. Whilst some of the men raped the women, the others stood as look-outs. The High Court held that the rapes were executed pursuant to a prior agreement in furtherance of a common purpose. The men had acted as a “cohesive whole”, applying the doctrine of common purpose to rape. In a series of attempted appeals, the application of common purpose regarding rape became confused and blurred.

Before the Constitutional Court, the applicants argued that the doctrine of common purpose could not be applied to crimes that are committed only through the instrumentality of a person’s own body. Accordingly, because the common law crime of rape requires the unlawful insertion of the male sexual organ into the female sexual organ, they argued that the crime cannot be imputed to a co-perpetrator.

The Constitutional Court, as informed by the Commission for Gender Equality and the Centre for Applied Legal Studies, acting as amici, rejected these arguments and held that the instrumentality argument has no place in a modern society founded upon the Bill of Rights as it perpetuates gender inequality and promotes discrimination.

The main judgment, penned by Mathopo AJ, held that “for far too long rape has been used as a tool to relegate the women of this country to second-class citizens, over whom men can exercise their power and control, and in so doing, strip them of their rights to equality, human dignity and bodily integrity…” He argued that the Court has a duty to develop and implement legal principles that advance the fight against gender-based violence in order to safeguard constitutional values. Moreover, Mathopo AJ held that the misguided perception that rape is a crime purely about sex had to be challenged in order to combat patriarchy and rape culture.

In a separate concurring judgment, Khampepe J emphasised that rape is an abuse of power expressed in a sexual way usually by men against women who are disempowered and degraded. She argued that the prevalence of the rape of women is rooted in the structural and systemic power inequality between men and women as social groups. It was thus important to acknowledge that many rapists are not clearly sexually deviant monsters but are in fact known to the women and are often even considered as rational and well-respected in the community. The focus could not be obscured by the notion that only abhorrent individuals rape – statistics and reality prove otherwise.

Victor AJ engaged with feminist legal theory to establish that laws concerning rape were historically informed by sexist gender norms. Applying common purpose for rape is an important step in legal reformation through a victim-centred approach and breaking down structures that enhance patriarchal practices.

Victor AJ also considered that South Africa has acceded to multiple binding international instruments including CEDAW and the Maputo Protocol. In line with these obligations, the country is tasked with eliminating discrimination against women, protecting women from all forms of violence and modifying social and cultural patterns that enforce stereotypical gender roles.

All 3 of the concurring judgments considered rape in the context of the systemic power dynamics that plague society. The law must guard against patriarchal norms and approach rape from the perspective of pursuing rights, dignity and equality. The unequivocal ruling that common purpose applies to rape, allowed the Court to take a powerful stand in recognising the discrimination, disadvantage, stigma and humiliation suffered by women. The judgement has also developed the law in accordance with dignity and equality. However, the law alone will not end gender-based violence, structural change is needed to meaningfully transform the status quo.