Jabulane Alpheus Tshabalala v The State; Annanius Ntuli v The State

On 20 September 1998, a group of young men went on a violent rampage in the Umthambeka section of Tembisa, Gauteng. They broke into nine households, ransacked and looted homes, assaulted occupants, and raped eight female occupants (some repeatedly), including a 14-year-old child and a pregnant woman. The attacks were systematic: the group threw rocks on roofs, masqueraded as police, broke down doors, covered male occupants' heads with blankets, and posted lookouts. Mr Tshabalala and Mr Ntuli were identified at various households during the attacks. The High Court convicted them and other co-accused of eight counts of rape each on the basis of the doctrine of common purpose, finding they acted as a cohesive group pursuant to a prior agreement. Seven of the rape convictions were based on the application of common purpose where they did not themselves commit penetration. Both were sentenced to effective life imprisonment. A co-accused, Mr Phetoe, later successfully appealed to the Supreme Court of Appeal, which set aside most of his rape convictions, holding the doctrine inapplicable. This prompted the applicants to seek leave to appeal their convictions.

• Whether the doctrine of common purpose can apply to the common law crime of rape
• Whether there is a rational basis for distinguishing the common law crime of rape from other crimes where the doctrine of common purpose applies
• Whether rape is an 'instrumentality offence' that can only be committed by a male using his own genitalia, thus excluding application of common purpose
• Whether an accused can be convicted of rape on the basis of common purpose where he did not himself penetrate the victim

1. The applications for condonation for late filing of applications for leave to appeal were granted. 2. The applications for leave to appeal were granted. 3. The appeals of Jabulane Alpheus Tshabalala and Annanius Ntuli were dismissed. 4. There was no order as to costs.

The doctrine of common purpose applies to the common law crime of rape. There is no rational or principled basis for distinguishing rape from other crimes such as murder or assault where the doctrine applies. The "instrumentality argument" – that rape can only be committed through the instrumentality of one's own body part and therefore common purpose cannot apply – is rejected as fundamentally flawed, artificial, unprincipled, irrational, and rooted in patriarchal notions inconsistent with constitutional values. Rape is not merely about sexual penetration but is primarily about the expression of power through degradation and the violation of dignity, bodily integrity and privacy. In group rape situations, the presence and participation of multiple perpetrators exerts power and dominance over victims. Where a prior agreement (express or implied) to commit rape is proved beyond reasonable doubt, or where accused persons actively associate with a group committing rape without disassociating themselves, the conduct of those who commit penetration can be imputed to co-perpetrators under the doctrine of common purpose, subject to proof of all other elements of the crime including unlawfulness and fault. The requirement of causation is removed in common purpose liability and replaced by imputation of the actus reus to all co-perpetrators.

The Court made several important obiter observations: (1) Rape statistics demonstrate this is a systemic and structural problem in South Africa, with approximately 114 cases recorded daily, reflecting male dominance and control over women. (2) The minimum sentences introduced by the Criminal Law Amendment Act 105 of 1997 have not had the desired deterrent effect. (3) Characterizing rapists as "monsters" or "animals" is problematic as it obscures the fact that perpetrators are often ordinary people (fathers, brothers, colleagues) and reinforces rape myths by creating cognitive dissonance when the perpetrator doesn't match stereotypes. (4) Addressing gender-based violence requires efforts from all branches of government and communities, not just the judiciary. (5) The Court declined CALS's request to develop a positive duty on everyone to report or prevent rape, or to develop "active association" to require "active dissociation," noting this may be a step too far and there is nothing wrong with current common purpose doctrine, only its application. (6) The Court noted it could not pronounce on the correctness of the Supreme Court of Appeal decision in Phetoe as the State did not cross-appeal. (7) International law obligations under CEDAW and the Maputo Protocol support development of common law to protect women from sexual violence.

This landmark judgment definitively establishes that the doctrine of common purpose applies to the common law crime of rape in South African law. It eliminates the "instrumentality argument" that had created uncertainty and inconsistent application across various High Court divisions. The judgment is significant for: (1) recognizing rape as primarily about power, degradation and violation of constitutional rights (dignity, bodily integrity, privacy, equality) rather than merely sexual penetration; (2) rejecting archaic, patriarchal legal constructions that treat women as property; (3) addressing the scourge of gender-based violence and group rape in South Africa; (4) harmonizing common law with constitutional values and international obligations under CEDAW and the Maputo Protocol; (5) ensuring consistency with the expanded definition of rape under SORMA; (6) providing clarity for prosecution of perpetrators who participate in group rapes without themselves committing penetration; and (7) sending a clear message that the judiciary is committed to combating gender-based violence. The concurrences provide important perspectives on feminist legal theory, the systemic nature of rape, and the need to dismantle patriarchal structures.