Two rapists want their conviction, sentence overturned based on 'doctrine of common purpose'

2019-08-22 20:46
The panel of judges presiding in the Constitutional Court. (File, City Press)

The panel of judges presiding in the Constitutional Court. (File, City Press)

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Two men convicted on eight counts of rape are looking to overturn their sentence and conviction in the Constitutional Court. Their case, however, has spurred heated debate on the doctrine of common purpose in rape cases.

In 1999, a group of men rampaged through a suburb and forced entry into several informal houses. Once inside, they assaulted, robbed and raped the houses' occupants.

The Supreme Court of Appeal described the events as a "reign of terror, an orgy of violence and pillage which included a paralysis of fear, morbidity, hopelessness and a psychosis of a defencelessness" in the victims.

Jabulane Tshabalala and Ntuli Annanius, who were part of the group, were found guilty as co-perpetrators in eight rapes which happened that night.

The two are now looking to overturn their rape conviction and sentence in the belief the doctrine of common purpose should not apply to rape.

This is on the basis that it cannot be applicable to a crime that cannot be committed through another person.

"As a result, an individual who is present, but does not actually commit the crime of common law rape, can only be held liable as an accomplice to the crime," the court explained.

The Commission for Gender Equality and Centre for Applied Legal Studies (CALS) have joined the case in the Constitutional Court as friends of the court in support of the notion that the doctrine of common purpose should indeed apply to rape.

The commission argued the doctrine of common purpose should apply because it already existed in law. Otherwise, "the law should be developed so that the doctrine of common purpose can also apply to common law rape".

It added that the doctrine applied to crimes like murder. This is based on the argument that it cannot be applicable to a crime that cannot be committed through another person. 

The CALS maintained there was an arbitrariness in applying the doctrine of common purpose to some crimes but not to others.

"A person should be held liable for the fact that they are present when the offence is committed. In order to avoid conviction, an individual will have to show that they are 'actively dissociate' from the commission of the crime."

Chief Justice Mogoeng Mogoeng said the final decision should be made objectively and with logic as there were many types of sexual offences, and thought should be given to each one.

"The benefit to be derived from that unlawful act or conduct spreads to all who participate in the planning or agree with that which they desire to see happening, actually happening.

"I'm not too sure whether … in a case of rape the principal can apply with as much ease as is the case with other crimes," Chief Justice Mogoeng said.

"What is rape about? What correlation exists between, and it may sound insensitive, the 'benefit' by the rapist - a person who wants to satisfy his lust combined with whatever hatred - and the enabler.

"You hate that person, you want that person hurt, but you don't go so far as to actually rape, and couple that with the reality that, even if you don't participate you can suffer the same consequences as the one who actually commits the rape…"

Mogoeng said he was still grappling with the concept of if someone holds a person down to be raped, they have raped or have made themselves an accomplice.

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