Common Purpose and Rape: A Dangerous Overreach in South Africa’s Justice System

On December 11, 2019, the Constitutional Court of South Africa, in Tshabalala v S; Ntuli v S (CCT323/18; CCT69/19) [2019] ZACC 48; 2020 (3) BCLR 307 (CC); 2020 (2) SACR 38 (CC); 2020 (5) SA 1 (CC), upheld the application of the doctrine of common purpose to convict individuals of rape, even where they did not personally perpetrate the act of penetration. Stemming from a 1998 Tembisa gang rape, this ruling extended liability to all participants in a collective criminal enterprise, presented as a means to address gender-based violence. While this goal is vital, I argue that applying common purpose to rape—a crime rooted in specific physical conduct—distorts justice, undermines individual accountability, and risks egregious overreach. Rape must remain a conduct-specific offence, not a tool for imputing collective guilt.

The Doctrine of Common Purpose: A Misfit for Rape

The doctrine of common purpose holds that individuals who actively participate in a joint criminal enterprise with shared intent are liable for the actions of the group. In S v Mgedezi [1989] (1) SA 687 (A), the Appellate Division delineated its prerequisites: prior agreement (explicit or tacit), active association, and no withdrawal. This was affirmed in S v Safatsa and Others [1988] (1) SA 868 (A), where eight accused were convicted of murder during an apartheid-era mob killing, despite not all striking the fatal blow. The doctrine suits outcome-based crimes such as murder or robbery, where collective action achieves a shared result, but its extension to rape is fundamentally misplaced.

Historically, rape under common law required unlawful sexual penetration by the accused’s own body, a principle of instrumentality preserved in essence by the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (Section 3). In Masiya v Director of Public Prosecutions [2007] ZACC 9, the Constitutional Court broadened rape’s definition to include anal penetration, yet retained its focus on the perpetrator’s physical act. Academic critique, such as Burchell’s Principles of Criminal Law (2016), emphasizes that rape’s actus reus is inherently personal, unlike the collective causation in S v Thebus and Another [2003] ZACC 12, where a mob’s intent justified murder liability. Tshabalala’s rejection of this distinction, claiming exclusion perpetuates patriarchy, prioritizes social policy over legal coherence, stretching the doctrine beyond its rational limits.

Tshabalala v S; Ntuli v S: A Precedent Too Far

In Tshabalala v S; Ntuli v S, eight men ravaged Tembisa in 1998, robbing homes and raping eight women. Some directly committed the rapes, while others served as lookouts or restrained victims. The High Court convicted all eight of eight counts of rape, applying common purpose to seven non-penetrators, a decision the Constitutional Court endorsed. Acting Justice Mathopo justified this by citing gang rape’s prevalence (paragraph 47), while Justice Khampepe recast rape as a systemic power crime. This overturned the Supreme Court of Appeal’s stance in Phetoe v S (2018), which rejected common purpose for rape absent clear prior agreement, stressing instrumentality. Delivered amid the 2019 Uyinene Mrwetyana protests, the ruling reflects a judiciary swayed by public sentiment rather than legal principle.

This expansion is legally tenuous. In S v Nkomo [1990] (2) SACR 135 (A), the Appellate Division warned against extending common purpose where intent is unproven, a caution Tshabalala disregards by inferring agreement from mere presence. The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 already addresses complicity (Sections 4–6), as seen in S v Nkosi [1998] (1) SACR 284 (W), where an accomplice to rape was convicted without being labeled a rapist. Tshabalala’s reliance on patriarchy as justification bypasses these alternatives, risking a precedent driven by emotion over evidence. The court’s admission (paragraph 54) that this was not “legally imperative” reveals its discretionary overreach, untethered from the doctrine’s established boundaries.

The Risks of Overreach: Three Scenarios

Consider a robbery: A and B plan to steal from a home. A rapes the homeowner while B, unaware of A’s intent, stands guard. Under Tshabalala v S; Ntuli v S, B could be convicted of rape if prosecutors infer a tacit common purpose, an inference readily made given South Africa’s rape crisis, with over 42,000 cases reported in 2023/2024 (South African Police Service Crime Statistics). In this case, many will not raise any concern because both robbers are criminals. However, imagine a group of friends hosting a party or colleagues at an overnight business conference. Amid alcohol and chaos, A, unseen in another room, rapes an intoxicated B. A creative and overzealous prosecutor could twist the group’s presence—laughter, music, or inaction—into “active association,” charging all attendees with rape. Tshabalala’s loose application of intent and participation invites such absurdity, despite Mgedezi’s stricter standards.

Envision an even more absurd scenario: a group of neighbors organizes a community watch patrol to deter crime. One member, C, uses the patrol as cover to enter a house and rape a resident, unbeknownst to the others. Under Tshabalala, a prosecutor might argue the group’s collective vigilance implies a common purpose, charging all patrollers with rape. Conviction is not even required for harm: media will proclaim “So-and-so allegedly raped the victim,” as in the 2022 Krugersdorp gang rape coverage. For high-profile individuals, the fallout extends to affiliated companies, causing potentially irreversible financial and reputational ruin. In a nation where gender-based violence is dire, yet women have admitted falsified rape claims (e.g., 2018 S v Zuma retraction), Tshabalala sets a perilous precedent. Section 257 of the Criminal Procedure Act 51 of 1977 punishes accessories harshly, as in Nkosi, without imputing rape, yet Tshabalala risks branding bystanders rapists, convicted or not.

Legal and Social Fallout

Tshabalala v S; Ntuli v S’s timing, post-Uyinene Mrwetyana, suggests a judiciary bending to societal pressure, not legal rigor. This imperils the Constitution’s guarantees of dignity and fair trial (Sections 10 and 35). In S v Safatsa and Others, the court cautioned against overbroad liability undermining fairness, a principle Tshabalala flouts. Labeling a lookout, partygoer, or patroller a rapist, absent direct involvement, imposes lifelong stigma, amplified by media before trials conclude. The 2023 South African Police Service Crime Report underscores rape’s public salience; overreached or false charges further erode judicial trust.

The social cost is stark. In S v Hadebe [2011] (unreported, Gauteng High Court), a man falsely accused of rape was acquitted after evidence collapsed, yet suffered severe reputational and financial losses after his business failed amid public backlash. In a country battling gender-based violence yet marked by occasional false claims (e.g., 2021 Gauteng hoax cases), Tshabalala’s precedent invites abuse. The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007’s complicity provisions, upheld in Masiya, suffice without imputing rape. Tshabalala sacrifices precision for optics, risking a system where innocence offers no protection against ruin—a betrayal of constitutional justice.

A Plea for Precision

Rape must remain a conduct-specific crime, its liability tied to the physical act. S v Nkomo and S v Nkosi demonstrate that accomplices can face severe penalties, up to life imprisonment, without being branded rapists. Tshabalala misapplies a doctrine suited to consequence crimes, not conduct-specific offences, as Burchell (2016) contends. The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (Sections 3–6, 18) targets complicity effectively, rendering common purpose unnecessary. South Africa’s fight against gender-based violence demands accuracy, not blanket liability that punishes presence over proof.

The legacy of Tshabalala v S; Ntuli v S threatens a legal quagmire where patrollers, partygoers, or colleagues face rape charges for another’s act—conviction optional, damage assured. In S v Thebus and Another, the court balanced collective liability with fairness; Tshabalala abandons this equilibrium. Justice requires distinguishing the rapist from the bystander, using existing laws to punish the latter appropriately. To do otherwise trades individual rights for collective retribution—a precedent South Africa, striving for equity, cannot sustain.

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SOURCES

• Cases:

  • Masiya v Director of Public Prosecutions [2007] ZACC 9.

  • S v Hadebe [2011] (unreported, Gauteng High Court).

  • S v Mgedezi [1989] (1) SA 687 (A).

  • S v Nkomo [1990] (2) SACR 135 (A).

  • S v Nkosi [1998] (1) SACR 284 (W).

  • S v Phetoe (2018) (unreported, Supreme Court of Appeal).

  • S v Safatsa and Others [1988] (1) SA 868 (A).

  • S v Thebus and Another [2003] ZACC 12.

  • Tshabalala v S; Ntuli v S (CCT323/18; CCT69/19) [2019] ZACC 48; 2020 (3) BCLR 307 (CC); 2020 (2) SACR 38 (CC); 2020 (5) SA 1 (CC).

• Statutes:

  • Constitution of the Republic of South Africa, 1996.

  • Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

  • Criminal Procedure Act 51 of 1977.

• Reports:

  • South African Police Service Crime Statistics, 2023/2024.

• Academic Sources:

  • Burchell, J. Principles of Criminal Law. 5th ed. Cape Town: Juta, 2016.