Tshabalala v The State; Ntuli v The State

In September 1998 a group of young men went on a violent rampage in Tembisa, Gauteng, breaking into at least nine homes. They assaulted occupants, robbed them, and raped eight women, some repeatedly. Some members of the group committed the rapes while others guarded the premises, restrained occupants, or facilitated the attacks. Jabulane Tshabalala and Annanius Ntuli were identified as part of the group at different locations but were not proved to have personally penetrated all the complainants. They were convicted in the High Court of multiple counts of rape, largely on the basis of the doctrine of common purpose, and sentenced to effective life imprisonment. After conflicting decisions in related appeals (notably that of a co-accused, Phetoe), they approached the Constitutional Court challenging the application of common purpose to the common-law crime of rape.

Leave to appeal was granted, but both appeals were dismissed. The convictions and sentences of Tshabalala and Ntuli were upheld. No order as to costs was made.

This decision authoritatively settled conflicting case law by confirming that the doctrine of common purpose applies to the common-law crime of rape. It strengthened the criminal justice system’s ability to hold all participants in group rape accountable and aligned South African criminal law with constitutional values of dignity, equality, and the protection of women against gender-based violence.