Recently, the Constitutional Court endorsed and upheld the High Court’s decision to apply the doctrine of common purpose to rape crimes. Rape was previously defined and construed as a conduct crime, in terms of which there had to be a physical act against the victim by the accused. The judgement of the Ntuli and Others expands the definitional requirements of rape as we previously understood them.
In the Ntuli case, various accused terrorised a community in Tembisa to instill fear. Instilling fear was the common purpose leading to the terrorization of the community. In the process, various sexual offences, including rape, were committed. However, in the commission of some of the sexual crimes, other members of the terrorising group were assigned to stand outside as lookouts; they did not commit the sexual crimes themselves in those instances.
The High Court applied the doctrine of common purpose to convict various members of the terrorising group of rape. The doctrine of common purpose prescribes that in an instance where a group of people agree to commit a crime and actively participate in it without any sign of disassociation, all members of the said group will be accountable for crimes committed by one or more of the group members. For instance, A and B agree to rob a bank, and they both carry guns in anticipation of a plausible gun standoff with the authorities. Should A shoot and kill C (a police officer), such murder is attributable to both A and B because C could have possibly been shot by either of them, and they had prepared to do so. However, should A rape D (the bank teller) in the process of the bank robbery, it is questionable whether or not such rape would be common purpose because it is not at all related to the bank robbery nor is it consequential and instrumental to the robbery.
In Ntuli, the lookouts were also convicted of rape on the doctrine of common purpose. However, the Constitutional Court remarked that the High Court did not necessarily need to apply the doctrine. The court held that the accused could have been convicted as accessories to the sexual offences, and the same conviction outcomes could have been achieved. Disturbingly, the Constitutional Court upheld and endorsed the High Court’s application of the doctrine to rape crimes. It did so on the grounds that all courts must thoroughly assess the factual background of any case before reaching any guilty verdict on the basis of the doctrine.
I strongly disagree with the High Court and the Constitutional Court and disapprove of the application of the doctrine of common purpose because, besides being misguided, it has far-reaching implications. For instance, there is a small party of four men (A, B, C, and D) and three women (X, Y, and Z). Should A rape X, with the application of the doctrine of common purpose, B to D may also be convicted of the rape crime simply because they were present at the location of the crime. The prosecution may successfully argue that the fact that there were four men and three women implies that the rape may have been a premeditation of sorts to take advantage of the three women. Given how high and serious sexual crimes have become in South Africa, I am of the opinion that the courts assessment of the facts in order to decide whether or not to apply the doctrine will be somewhat biassed due to public pressure.
The socioeconomic consequences will be devastating. The application of the doctrine may as well be loosely translated to mean that we are all guilty of a rape crime we may not have committed. The initial reporting of the case by the media will say B is charged with rape, and even if they further state that the charges are on the basis of the doctrine of common purpose, B’s reputation will be ruined regardless due to the nature and gravity of rape. B’s law firm will be pressured to take drastic action against him; failure will see the firm boycotted and tainted, and some clients may withdraw their business. Beyond that, all other businesses associated with B will also be pressured to not work with him any longer. By the time the courts assess the facts and absolve B of the rape crime, the public will be prone to believe that B was found not guilty because he works for one of the big five and most powerful law firms in South Africa and had the money to buy his innocence. In fact, regardless of B's social status, his acquittal will be deemed a failure by the justice system, a system that might try by all means to do anything and everything to keep B behind barriers due to public pressure.
In conclusion, as the Constitutional Court itself remarked that it was not legally imperative that the High Court apply the doctrine of common purpose to the sexual offences, I particularly agree with the statement, as the courts could have still handed down a punitive sentence without deeming the offence rape. How the Constitutional Court then proceeded to uphold and endorse the applicability of the doctrine to rape is beyond my intellectual capacity. However, in a constitutional South Africa, it is a grave injustice to be labelled as a rapist for a crime you may not have committed simply because you were at the location of the crime. I am of the opinion that the Constitutional Court upheld the applicability of the doctrine purely because, at the time of adjudication of the Ntuli case, there was a significant spotlight on sexual crimes due to the unfortunate circumstances that befell Uyinene. Rape as a crime must remain a conduct crime, and all others involved must be charged and tried as per the usual specific terms in criminal law, e.g., as accessories, and be handed the severest of sentences.
