Recently our nation was shocked to the core by the horrific attacks and the rape of eight women in Krugersdorp. More than eighty men were arrested by the police on the alleged charges of various crimes including armed robbery and rape. The media reported that the arrested men wore blankets and balaclavas during the commission of the alleged crimes. The question now remains, can all the men arrested be charged with the crime of rape based on the doctrine of common purpose?
Rape is a common law crime and defined as unlawful sexual activity, that involves non-consensual sexual intercourse with the victim through force or with an individual who is incapable of giving legal consent due to minor status, mental illness, intoxication, unconsciousness, or deception. Rape was previously only deemed to be caused by the perpetrator’s uncontrolled sexual desires, but it is also now understood as a compulsive contention of power over a victim and classified as an extreme form of gender-based violence (GBV). Armed robbery is an aggravated form of theft that involves the use of a lethal weapon to commit violence or the threat of violence against a victim.
The doctrine of common purpose is where two or more persons agree to commit a crime by prior agreement, either expressed or implied or where there is no prior agreement by actively associating in the commission of the crime. For example when a group of people come together and plan to kill a person and execute their plan, according to the doctrine of common purpose the group of people would be guilty of murder based on common purpose.
Prior to 2019, there were conflicting views on whether a person may be convicted of the crime of rape based on common purpose as the crime of rape was determined by the requirement of the unlawful insertion of the male sexual organ into the female sexual organ and further argued that it would be impossible to apply the doctrine of common purpose to the requirement of rape as the causal element cannot be imputed to a co-perpetrator as the instrumentality of one’s body is required for the commission of the crime.
This argument was overturned in 2019 in the Constitutional judgement in the case of Tshabalalah v S (Commissioner for Gender Equality and Centre for Applied Legal Studies Amici Curiae); Ntuli v S CCT323/18 & CCT69/19. In this case, a group of men went on a crime spree in the township of Thembisa, Gauteng. The men broke into houses and caused malicious damage to property and some of the men raped eight women, the other men stood as lookouts. The High Court convicted the group of men on seven counts of common law rape based on the doctrine of common purpose. The Constitutional Court judgement held that the men knowingly and with the required intention participated in the unlawful actions of the group and fully associated themselves with the criminal conduct.
Although there is no clarity on the progress of the successful prosecution of the men arrested for the Krugersdorp terror, South African laws and legal precedents do create the platform to secure a successful prosecution and one must just believe that justice will prevail in the end. Should you need legal assistance or advice, do not hesitate to contact us, our criminal experts will be ready to assist you.
Charne Sebonka
charne@bbplaw.attorney
Associate
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