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Rape and the principle of common purpose

- Lee-Anne Bruce

Con Court admits CALS as friend of the court in an important matter dealing with whether someone can be found guilty of rape on the basis of common purpose

The matter has been brought before the Court by an individual, Jabulane Alpheus Tshabalala, who was found guilty of seven counts of rape in 1999. At the time, Mr Tshabalala was part of a criminal gang which operated in Johannesburg breaking into homes on a regular basis to commit not only robbery but also assault and rape. Mr Tshabalala was charged and convicted with these crimes under the legal doctrine of common purpose.

‘Common purpose’ is a principle of our law used to deal with crimes that are committed in groups. Essentially, it means that everyone intending to commit a crime as part of a group is liable for all the crimes that are committed by that group. For example, if a gang of people robbed and assaulted someone, every member of the group would be charged with both robbery and assault – whether they physically performed both crimes or not. Mr Tshabalala contends that the principle of common purpose should not apply to rape and has appealed his convictions to the Constitutional Court.

CALS has been granted leave to intervene in the matter as a friend of the court, along with the Commission for Gender Equality. We intend to assist the Court with this matter by arguing that it would be arbitrary to apply common purpose to some crimes but not to sexual offences. We hope to further assist the Court with evidence from academic studies detailing the psychological experiences of survivors of sexual violence and the nature, pervasiveness and risk factors associated with these crimes in South Africa.

“This is an incredibly important case that has major implications for our law and for survivors of sexual violence,” says Sheena Swemmer, attorney and head of the Gender Programme at CALS. “Not only would it be arbitrary to exclude crimes like rape from common purpose, more importantly, it would not respond to the realities of how these crimes are perpetrated in our country.”

Read our full amicus application here. 

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