Finally, while the country was engaged in dealing with power cuts and the inability of our government to come up with a tangible solution to the crisis, the acting justice Rammaka Mathopo in the case of Tshabalala v S; Ntuli v S (CCT323/18; CCT69/19) [2019] ZACC 48 (11 December 2019) took an unprecedented step of dealing a decisive blow to the crime of rape and other forms of sex and gender-based violence (SGBV). What is pleasing and striking about this judgment is that Mathopo AJ did not have to engage on foreign case law to set what will, in history, be regarded as one of the most ground-breaking and fearless judgments of our times.

The Constitutional Court dissected the law on common purpose doctrine (or the Joint Criminal Enterprise Doctrine as called in other jurisdictions), engaging South African scholarly sources. And among the sources consulted is that by leading Professor J Burchell (Burchell Principles of Criminal Law 5 ed, Juta, Cape Town 2016) and Professor CR Snyman (Snyman Criminal Law 5 ed, LexisNexis, Durban 2008), with the latter’s approach on the application of the doctrine of common purpose in rape cases discarded as antiquated.

I must admit upfront that though this is a much-needed landmark decision developing the common law of rape and the doctrine of common purpose, we should expect some jurisprudence scholars, critics, advocates, and other jurists to ponder on the real import of the judgment.

While some laud the decision, others may argue that the judgment, which is a form of Extended Common Purpose Doctrine, has no doctrinal lineage in South Africa. At the same time, it would be a mammoth task to provide doctrinal and normative grounds on, what I term, the Extended Doctrine of Common Purpose expounded in Tshabalala v S; Ntuli v S, which must be rejected.

Coming back to the essence of my article: The system of patriarchy and its ills, through the sexist application of the common law Doctrine of Common Purpose, has been chipped away. The law of common purpose in South Africa has just taken the right turn in SGBV.

As noted by Mathopo AJ: The facts of this case demonstrate that various households were robbed of their personal belongings, occupants attacked gratuitously and in some instances, women were raped indiscriminately. Appallingly, one of the women complainants was visibly pregnant. Another complainant was a young girl who was 14 years old.

This cavalier attitude demonstrates callousness on the part of perpetrators. To jettison the sound doctrine as the applicants urge us to, would do a grave injustice to direct and indirect victims of gender-based violence. This would give power to men or perpetrators who have raped women with impunity in the knowledge that the doctrine would not apply to them. [Para 55]

In this case, the applicants argued that “under the common law, the crime of rape is an instrumentality offence which, by its nature, can only be committed by a male using his own genitalia, and not by an individual who is merely present when the offence is committed and by his conduct (through his association or active participation) either promotes, encourages or facilitates the successful commission of the offence”. This argument, which in legal terms is called the “instrumentality argument” has been dealt a big blow by Mathopo AJ.

“The instrumentality argument has no place in our modern society founded upon the Bill of Rights. It is obsolete and must be discarded because its foundation is embedded in a system of patriarchy where women are treated as mere chattels”, held Mathopo AJ [para 54]. Endorsing or supporting the instrumentality argument against applying common purpose is regarded by the Constitutional Court as illogical and not making sense. The instrumentality defence loophole in rape cases is now fully closed.

In supporting the judgment of Mathopo AJ, Victor AJ also highlighted the instrumentality argument shows the pervasiveness of gender inequality and formalised patriarchy in the South African jurisprudence with “… a number of embedded patriarchal gender norms in the procedural rules of evidence in relation to rape”. [Para 80] There is no place for archaic, discriminatory, patriarchal and sexist substantive and procedural legal principles and rules in the South African law viewed within the mandate of the Bill of Rights. This judgment confirms that rape victims, in particular women, also have the right to equality, security, dignity, security and the fundamental freedom to be free of SGBV.

After this judgment, the law now is that rape is no longer only penetrative sexual offence. In simple words, you no longer need to penetrate your victim with your gentiles or an object to be charged and convicted of rape as a perpetrator. If X rapes W while his friend, Z assists him by restraining W, but without himself having intercourse with her [or him], Z is a co-perpetrator, as opposed to an accomplice, to the rape of W. In my view, henceforth we cannot talk of accomplice to rape. In fact, the judgment should be read to include as co-perpetrators of rape those who incite rape.

Therefore, if Z is sitting with his friend X at a night club and talks X into following W to the bathroom to rape her, the courts must convict Z too as co-perpetrator of the rape committed by X. Clearly, in such a case, Z associated himself with the rape of W by X through intentional encouragement to rape. Him not having followed W to the bathroom with Z cannot be a defence to escape criminal liability for the rape of W.

This decision has strengthened South Africa’s hand in SGBV. What people need to understand is that the degrees of participation are no longer cast in stone in the form of the so-called accomplice, inciter, perpetrator and co-perpetrator. Under the new law following Tshabalala v S; Ntuli v S, your lack of dissociation from the crime of rape by others and the aggravating circumstances involved may render you liable as a perpetrator and not as an accomplice as was the case under common law. The new approach to the application of the doctrine of common purpose in rape cases is a huge boost in the fight against SGBV. Society’s yearning for the government to criminalise the behaviour of people involved in or associating themselves with SGBV is no longer a pipe dream.

Often, concurring and dissenting judgments in a case are not given the prominence they deserve. In this case, I was attracted by the concurring judgment of Khampepe J, because I read it as a reminder that rapists are not marked on the forehead nor is rape perpetrated by scoundrels of the society. “… you cannot tell that someone is a rapist by their mere physical appearance or their standing in the community or their relationship to you”, stated Khampepe J [Para 75].

As part of the broader movement to combat SGBV, every woman or person must appreciate the possibility that her rapist may be her beloved father, the most trusted brother, the dependable uncle, the rich guy next door, her most handsome boyfriend or partner, the admired political leader in the community, the famous guy or celebrity in the community, the loved musician, the gardener who has been with the family since you were a five-year-old child, the famous prophet or pastor in church, that kind-hearted male colleague, and the man who just won the boss of the year award.

As Khampepe J explicated: The notion that rape is committed by sexually deviant monsters with no self-control is misplaced. Law databases are replete with cases that contradict this notion. Often, those who rape are fathers, brothers, uncles, husbands, lovers, mentors, bosses and colleagues. We commune with them. We share stories and coffee with them. We jog with them. We work with them. They are ordinary people, who lead normal lives… The idea that rape is committed by monsters and animals may have adverse effects in that it may lead to the reinforcement of rape myths and stereotypes. [Para 74]

Now that this and other judgments have continued to break steadily the legal constraints of SGBV, what can we do as a society to help eradicate sexist norms and patriarchal frameworks?

To answer my own question, I am indebted to Victor AJ in this case, who said that: “Continual vigilance within a constitutional context is necessary in relation to any remaining obstacles” [Para 83]. During the peak of SGBV, President Cyril Ramaphosa and his ministers, for instance, voiced support for doing whatever is possible to deal decisively with SGBV.

My advice to them is that among other less expensive ways is to make a call to the law faculties in South Africa, through the Southern African Law Deans Association (SALDA), to do their patriotic best in identifying sexist norms and patriarchy embedding principles of law and alert the Department of Justice and Constitutional development to reform the law.

If we are to thwart SGBV, all hands must be on deck and law faculties must start to play meaningful roles. DM