South Africa: Constitutional Court Strikes a Decisive Blow Against Rape

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opinion

The system of patriarchy and its ills, through the sexist application of the common law doctrine of common purpose, has been chipped away. The South African law of common purpose has just taken the correct turn over sex and gender-based violence.

Finally, while the country was engaged in dealing with power cuts and the inability of our government to come up with a tangible solution to the crisis, the acting justice Rammaka Mathopo in the case of Tshabalala v S; Ntuli v S (CCT323/18; CCT69/19) [2019] ZACC 48 (11 December 2019) took an unprecedented step of dealing a decisive blow to the crime of rape and other forms of sex and gender-based violence (SGBV). What is pleasing and striking about this judgment is that Mathopo AJ did not have to engage on foreign case law to set what will, in history, be regarded as one of the most ground-breaking and fearless judgments of our times.

The Constitutional Court dissected the law on common purpose doctrine (or the Joint Criminal Enterprise Doctrine as called in other jurisdictions), engaging South African scholarly sources. And among the sources consulted is that by leading Professor J Burchell (Burchell Principles of Criminal Law 5 ed,...

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