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) (11 December 2019)

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) (11 December 2019)

The Constitutional Court held that the doctrine of common purpose applies to the common law crime of rape. The applicants were part of a group that planned and executed a series of violent attacks, including multiple rapes, and did not disassociate themselves from the criminal enterprise. The instrumentality argument, which posits that only the person who physically commits the act of penetration can be convicted of rape, was rejected as artificial, unprincipled, and inconsistent with constitutional values of equality and dignity. The Court found that the conduct of each participant in the execution of the common purpose is imputed to the others, and there is no rational basis for...

Citation
[2019] ZACC 48
Parties
Applicant: Jabulane Alpheus Tshabalala; Applicant: Annanius Ntuli; Respondent: The State; Amicus Curiae: Commission for Gender Equality; Amicus Curiae: Centre for Applied Legal Studies
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
11 December 2019
Case Number
CCT323/18;CCT69/19
Procedural Posture
Leave to Appeal / Constitutional Court Appeal From High Court
Outcome
Applications for condonation and leave to appeal are granted; the appeals are dismissed; no order as to costs.
Judges
Mogoeng, Froneman, Jafta, Khampepe, Madlanga, Mathopo, Mhlantla, Theron, Victor
Legal Topics
Common Purpose, Rape, Gender Based Violence, Bill of Rights Limitation, Criminal Liability, Instrumentality Argument
Criminal Law Constitutional Law Common Purpose Rape Gender Based Violence Bill of Rights Limitation Criminal Liability Instrumentality Argument

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Parties

Jabulane Alpheus Tshabalala

Applicant

Annanius Ntuli

Applicant

The State

Respondent

Commission for Gender Equality

Amicus Curiae

Centre for Applied Legal Studies

Amicus Curiae

Procedural Posture

Leave to Appeal / Constitutional Court Appeal From High Court

Legal Issues

  1. 1 Does the doctrine of common purpose apply to the common law crime of rape.
  2. 2 Is there any rational basis for distinguishing rape from other crimes regarding the application of common purpose.
  3. 3 Should the convictions of the applicants be set aside in light of the Supreme Court of Appeal's decision in Phetoe.

Ratio Decidendi

The Constitutional Court held that the doctrine of common purpose applies to the common law crime of rape. The applicants were part of a group that planned and executed a series of violent attacks, including multiple rapes, and did not disassociate themselves from the criminal enterprise. The instrumentality argument, which posits that only the person who physically commits the act of penetration can be convicted of rape, was rejected as artificial, unprincipled, and inconsistent with constitutional values of equality and dignity. The Court found that the conduct of each participant in the execution of the common purpose is imputed to the others, and there is no rational basis for...

Court Disposition

Applications for condonation and leave to appeal are granted; the appeals are dismissed; no order as to costs.

Orders

  • The applications for condonation for the late filing of the applications for leave to appeal are granted.
  • The applications for leave to appeal are granted.