The Constitutional Court has extended the application of the doctrine of common purpose to gang rape cases. If members of a group intend to exert power over women, they are equally guilty.
"Who knows what black woman thinks of rape? Who has asked her? Who cares?" This is the opening quote from Justice Sisi Khampepe's concurring judgment in a recent ground-breaking Constitutional Court ruling that declared that the doctrine of common purpose has application to cases of gang rape.
Khampepe justified the reference to race in the epigraph of her judgment: "To erase the racial element in this epidemic is to erase the experiences of the women of that horrendous night. Speaking of rape on these terms is not a preoccupation with personal identity but an analysis of the ways in which power impacts particular women."
For the longest time, our courts have been applying the doctrine of common purpose in cases of common law rape differently, leading to uncertainty in the application of the law. This uncertainty subjected rape survivors to the unimaginable trauma of perpetrators not being convicted for their crimes.
The unanimous judgment, written by acting Justice Rammaka Mathopo, has ended this uncertainty in gang rape cases.
"If the doctrine of common purpose extends to crime of murder, common assault or assault with intent to do grievous bodily harm, it is irrational and arbitrary to make a distinction when a genital organ is used to perpetrate the rape," wrote Mathopo.
In the strongly-worded judgment, Mathopo said the Constitutional Court "will be failing in its duty if it does not send out a clear and unequivocal pronouncement that the South African judiciary is committed to developing and implementing sound and robust legal principles that advance the fight against gender-based violence in order to safeguard the constitutional values of equality, human dignity and safety and security."
The judgment is one of the apex court's most important and progressive judgments in dealing with the scourge of rape. The Centre for Applied Legal Studies (CALS), which supported the court in the matter, welcomed the decision as a "ground-breaking judgment" with "important implications for how gang rapes are dealt with in our law".
The landmark judgment was prompted by a horrific attack in Umthambeka shack settlement, in Tembisa township, east of Johannesburg, on 20 September 1998. On this night, a gang of young men terrorised several households in what was described as a "well-orchestrated and meticulously calculated" attack. Houses were looted, people were assaulted and about eight women were repeatedly raped. Some of the rapists were known to the women who were raped.
The accused were apprehended and charged with eight counts of rape, seven of which were based on the application of the doctrine of common purpose.
The appellants, Jabulane Tshabalala, Annanius Ntuli and co-accused were found guilty of these charges. The high court reasoned that the gang had acted as a "cohesive whole" and the rapes and attacks were not spontaneous but were pre-planned by the gang. The accused attempted to appeal the high court's decision, but were not successful. Furthermore, Tshabalala was also unsuccessful in 2009 in his attempt to petition the Supreme Court of Appeal (SCA).
It was the successful appeal in 2016 by one of the co-accused, Tebogo Phetoe in both the lower courts and SCA, that reignited Tshabalala's appeal and Ntuli's conviction and sentence in the Constitutional Court.
The high court and SCA dismissed the view that common purpose could be applied in cases of rape. It went so far as to say that mere presence was not enough to make a case of common purpose in rape matters. The SCA took the view that because Phetoe did not insert his penis into anybody, he was not guilty of rape.
This SCA judgment allowed Tshabalala and Ntuli to appeal their conviction and sentence at the Constitutional Court.
Ntuli and Tshabalala, in appealing their conviction and sentence, argued that the doctrine of common purpose could not apply to rape, as they did not unlawfully insert their genitalia into the victims.
The Constitutional Court, however, reasoned that there was no rationale in treating the accused who penetrated differently from the other accused who did not.
The court dismissed the instrumentality argument of both Ntuli and Tshabalala, deeming it "unsound, unprincipled and irrational" and saying, "it would be a sad day if courts were to countenance such an arbitrary distinction."
The instrumentality argument, the court said, "must be discarded because its foundation is embedded in a system of patriarchy where women are treated as mere chattel. It ignores the fact that rape can be committed by more than one person for as long as the others have the intention of exerting power and dominance over the women."
The perpetrators, including Ntuli and Tshabalala, overpowered their victims through intimidation and assault. For the Constitutional Court, even the manner in which the gang of perpetrators moved from one household to the next, in their 1998 attack, demonstrated "meticulous prior planning and preparation. They made sure that any attempt to escape would not be possible."
To not convict and sentence them as co-perpetrators in committing the crime of rape would be unjust and unfair, said the court.
In a concurring judgment, Khampepe said there was "neither legal nor normative reason that would justify the exclusion of the application of the doctrine of common purpose to the common law crime of rape."
The Constitutional Court drew from feminist theory to dispel myths and stereotypes about rape. In the main judgment, Mathopo said: "It is necessary that the relationship between rape and power must be considered when analysing whether the doctrine applies to the common law crime of rape. To characterise it simply as an act of man inserting his genitalia into a female's genitalia without her consent is unsustainable. In instances of group rape, as in this case, the mere presence of a group of men results in power and dominance being exerted over women victims."
Khampepe reacting to Mathopo's sentiments, said: "... rape, at its core, is an abuse of power expressed in a sexual way. It is characterised with power on one side and disempowerment on the other. Without more said, we know which gender falls on which side."
Khampepe dispelled the dominant narrative in South Africa that rape can only be committed by social deviants or a particular type of people - a sentiment that finds expression in social media hashtags such as #NotAllMenAreRapists.
"Rape is often mischaracterised as being an act of sexual intercourse, absent of consent, committed by inhuman monsters," wrote Khampepe. "This is a dangerous mischaracterisation of rape ... Law database are replete with cases that contradict this notion. Often those who rape are fathers, brothers, uncles, husbands, lovers, mentors, bosses and colleagues. We commute with them. We share stories and coffee with them. We jog with them. We work with them. They are ordinary people, who lead normal lives."
For Khampepe, labelling of rapists as monsters and deviants has catastrophic consequences, in that such characterisation "... may lead to cognitive dissonance ... "
"Terming rapists as monsters and degenerates tends to normalise the incidents of rape committed by men we know because they are not 'monsters' - they are rational and well-respected men in the community", Khampepe adds.
This narrative, for Khampepe, places on trial "the actions of the victim and not those of the actual rapist. This in turn reinforces the prevalent rape culture in South Africa and safeguards the patriarchal norms which normalise incidents of rape."
In 2018/19, the South African Police Service recorded 41 583 cases of reported rape compared to 40 035 in 2017/18. These statistics, for Khampepe, cement the view that "rape is structural and systematic" and not just "rare, unusual and deviant".
Acting Justice Victor agrees with Mathopo and Khampepe, saying that intersectionality of categories such as race, gender and class will be necessary in the deconstruction of "patriarchal practices that in turn give rise to gender-based violence". She emphasises the role the South African government should play as a signatory to a number of international laws that place obligations on states to eliminate all forms of discrimination against women.
Appeal must fail
The court dismissed the appeal of Ntuli and Tshabalala and declared that the doctrine of common purpose cannot be "faulted".
"To jettison the sound doctrine as the applicants urge us to, would do a grave injustice to direct and indirect victims of gender-based violence. This would give power to men or perpetrators who have raped women with impunity in the knowledge that the doctrine would not apply to them", writes Mathopo.
Khampepe adds: "... addressing rape and other forms of gender-based violence requires the efforts of the Executive, the Legislature and the Judiciary as well as our communities. The structural and systematic nature of rape emphasises that it would be irrational for the doctrine of common purpose not to be applicable to the common law crime of rape, while being applicable to other crimes."
In as much as the institutional failures of the state to deal with the scourge of rape does not inspire confidence, we need to heed the call from Khampepe and her colleagues to challenge the rape culture that defines our society.