Two rapists who went on a rampage, raping women in a suburb of Tembisa in Gauteng 21 years ago, have lost a Constitutional Court bid to change the law so that the doctrine of common purpose does not apply to rape cases.
The two men, Jabulane Tshabalala and Annanius Ntuli were convicted of the September 1998 rapes and sentenced to life in prison.
According to court papers, when the men approached some of the homes of their victims, they pretended to be police, threw rocks and stones on the roofs, and shouted: "Police! Police!"
Eight women were raped, some repeatedly, by some members of the group. The youngest victim was 14 and one was visibly pregnant.
The men were convicted of seven counts of housebreaking with intention to rob, eight counts of rape, four of assault with the intent to do grievous bodily harm, one of common assault, two of malicious damage to property and one of attempted robbery. Of the eight rape convictions, seven were on the basis of the doctrine of common purpose.
This means that the court found that even though they didn't penetrate the victims, they were guilty of rape because they were part of a group of men who had a common intent to commit the crimes.
But the two believed that the doctrine of common purpose should not apply to rape and armed themselves with this argument when the matter went to court.
The High Court found that the rapes were executed after a prior agreement in the furtherance of a common purpose and rejected their assertion that the doctrine of common purpose did not apply.
Tshabalala and Ntuli later lodged an application for leave to appeal which the High Court refused.
Tshabalala petitioned the SCA for leave to appeal in 2009 but this attempt also failed.
The men then turned to the Constitutional Court, which delivered judgment on Wednesday.
The court found that the High Court's finding that the accused acted in the furtherance of a common purpose could not be faulted.
"The facts of this case demonstrate 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," the apex court said.
"The applicants knowingly and with the requisite intention, participated in the activities of the group and fully associated themselves with criminal designs.
"It is disingenuous to now contend that because they did not physically penetrate the complainants they should not be found guilty on the basis of the doctrine."
The Constitutional Court also said another reason that indicates why the doctrine of common purpose should apply can be found in the "degrading conduct on the part of the perpetrators when some of them wanted to penetrate one of the complainants simultaneously".
"It is hard to imagine the humiliation and the trauma that the complainant suffered at that time.
"Even though only one of them managed to penetrate her, to suggest that the other should escape liability merely because they did not get an erection is legally and morally unconscionable.
"There is no rationale for treating the one who penetrated differently from the others who did not. What is clear is that the other perpetrators, given their positive conduct and presence did not disassociate themselves from the conduct of the one who penetrated the complainant."
The court also found that "the terror that poured out on this community was well orchestrated and meticulously calculated".