By Sanette Viljoen
In 1988 nine young men attacked several houses late at night. They acted incredibly violently and blood-thirsty. In total they raped eight different women that night. Some of these women were raped more than once by different men. Some were recognised by the women and some were not.
The youngest victim was a 14-year-old girl. One of the other victims was clearly heavy with child. While some of the men were raping the women, some of the other men were keeping watch outside the houses. Quite deservedly all the members of this group were prosecuted and all of them were found guilty of rape.
One of the nine men found guilty of rape has now, many years later, appealed against the court’s finding and through the appeal court took the matter to the highest court. This case was recently heard by the Constitutional Court, almost 20 years later. It dealt with the doctrine of common purpose and whether it applied to rape.
Mr Tshabalala approached the court with the argument that this doctrine of common purpose does not apply or should not apply to rape crimes. His argument was that the accomplice, the so-called “partner in crime”, cannot be found guilty of rape in rape cases because the accomplice who kept watch was in no way involved in the physical deed of rape.
The Constitutional Court did not uphold Mr Tshabalala’s arguments and found that this whole group of nine who attacked and raped the different people acted as a group. The Court went on to say that it was difficult to believe that the rapes were the actions of just some of the group members and that these deeds were unexpected and out of the control of the other group members, in other words that one or two did not participate at all. Although it was difficult to believe, the Court held that even if this was the case, all members of the group had the same common goal and all of them cooperated to achieve that goal, which included the assault and rape of the women.
The Court also emphasised the connection between rape crimes and together with it the domination of or control over it. The Court was explicit about the fact that there was a connection between this domination and/or control of one person and the sexual crimes of the other person, which undoubtedly is seen more and more in today’s family violence and sexual violence.
The Court therefore found that the doctrine of common purpose definitely applied to sexual crimes in the same way that it applied to other crimes.