Tshabalala V S Ntuli Head of Arguement

1
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NUMBER: CCT 323/18
Ex SCA Case Number 349/2009
Ex SGHC Case Number :37/99
In the matter of:
TSHABALALA, JABULANE ALPHEUS Applicant
and
STATE Respondent
APPLICANT’S WRITTEN SUBMISSSIONS PURSUANT TO DIRECTIONS ISSUED

BY CHIEF JUSTICE DATED 13 FEBRUARY 2019
Introduction
1. On 12 December 2018 the applicant launched an application to the
above Honourable Court seeking an order in the following terms:
1.1 That condonation for the late filing of an application for leave to appeal
be granted;
1.2 That an order by the Supreme Court of Appeal dismissing his petition
(leave to appeal) be set aside;

2
1.3 That leave to appeal against both convictions and sentences of life
imprisonment on Seven counts of rape as well as various counts of
housebreaking with intent to rob and robbery be and hereby be
granted.
2. On 13 February 2019 the Chief Justice issued the following directions
to
address the following issues:
2.1 whether an accused can be convicted of common law rape on the
basis of common purpose; and
2.2 whether the Supreme Court of Appeal decision of the applicant’s co-
accused, Phethoe v S1 was correct, and, if correct, whether there is
anything to distinguish the convictions that the applicant puts in
dispute from those of which his co-accused, Mr Phetoe, was absolved.
(a) whether an accused can be convicted of common law rape on
the basis of common purpose.
3. Before the coming into operation of the Criminal Law (Sexual Offences
and Related Matters) Amendment 2, Rape in terms of common law as it
then was defined consisted of a male having unlawful and intentional
sexual intercourse with a female person without her consent. The
1
[2018] ZASCA 20; 2018 (1 ) SACR 593 (SCA)
2
Act 32 of 2007
3
imputation to common purpose does not operate in respect of charges
which have been committed only through the instrumentality of a
person’s own body or part thereof or which is generally of such a
nature that it cannot be committed through the instrumentality of
another. See Criminal Law by CR Snyman3
4. In S v Kimberley and Another4 Erasmus J says: “Snyman (op cit at
266)
supports the view that the common purpose doctrine cannot be applied
to crimes that cannot be committed through the instrumentality of
another; in other words, which can only be committed by means of a
person’s own body or part thereof. He states that rape, as well as
certain other sexual offences, such as intercourse with a girl below the
5
age of 16 in contravention of section 14 of the Sexual Offences Act
are examples of such crimes. He furnishes further examples, viz
perjury, bigamy and driving under the influence of liquor. I could
mention many other instances, eg all offences relating to acts which
require a person permit or licence, or that can be performed only by a
person of a particular status, such as a prisoner or an insolvent. The
common-law doctrine of common purpose cannot be invoked n such
crimes.
5. As the common law rape involves sexual intercourse with a female
3
Criminal Law 5th Edition at page 261
4
2004 (2) SACR 38 (E) at para [15]
5
23 of 1957
4
without her consent, it was therefore incumbent on the state to prove
this essential element beyond reasonable doubt in order to sustain a
conviction on rape. In S v Uithaler6 it was held that the court had
misdirected itself in sentencing the appellant on the basis that he had
committed two rapes.
6. In the instant case, for the applicant to be liable as accomplice to rape,
it should be someone who does not satisfy all the requirements for
liability contained in the definition of the crime or who does not qualify
for liability in terms of the principles relating to common purpose, but
who nevertheless unlawfully and intentionally furthers its commission
by somebody else. He consciously associates himself with the
commission of the crime by assisting the perpetrator/s or by giving
them advice or supply them with the information or by offering them
opportunity of or means to commit the crime or facilitates its
commission. See S v Williams7 ; S v Maxaba8
6.1 When the common law definition of rape still applies that is when the
accused had sexual intercourse with a female per vaginam, while his
friend assisted him by restraining the female victim but without him
having sexual intercourse with her, then he becomes an accomplice to
6
2015 (1) SACR 174 (WCC)
7
1980 (1) SA 60…. (A) at 643????
8
1981 (1) SA 1148 (A) at 1156
5
rape and may be convicted of rape as an accomplice. See R v
Mbande and others9; S v Khoza10; S v Saffier11
7. The appellant was charged and convicted of common law rape.
8. It is respectfully submitted that in the Full Court decision (which was
appealed in Phetoe v S in the SCA) correctly held (at Paragraph [13])
that common law rape by definition cannot be committed by or through
the physical instrumentality or agency of another person predicated on
the principle of common purpose, because common law rape is an
autographic crime that can only be committed through a male person’s
body by the insertion of a male person’s penis into a female person’s
vagina. Common law rape can only be established if it is proven
beyond reasonable doubt that the male sexual organ, the penis
penetrated the female sexual organ, the vagina. In this regard the Full
Court referred to S v Snyman12; S v Hassim13
9. There is judicial precedent for the proposition that where another male
assists the perpetrator to commit (common law) rape, without himself
having actual intercourse with the female victim, such person can only
9
1933 AD 382
10
1982 (3) SA 1019 (A)
11
2003 (2) SACR 141 (SEC)
12
1968 (2) SA 582 (1019 (A) at 589F
13
1973 (3) SA 443 (A) at 457 H
6
be held liable as an accomplice, and not as a co-perpetrator (S v
Gaseb14; and S v Saffier15. See also: S v Kimberly and Another16
10. In S v Gaseb17 supra O’Linn AJA stated the following:
“In this case a common purpose was not alleged by the State. But it
should be noted that Snyman in his book on Criminal Law, makes the
following point: 'The common purpose doctrine cannot be applied to
crimes that can be committed only through the instrumentality of a
person's own body or part thereof, and not through the instrumentality
of another. Rape as well as certain other sexual offences such as
intercourse with a girl below the age of sixteen in contravention of
section 14 of the Sexual Offences Act 23 of 1957 are good examples of
such crimes. Thus if X rapes a woman while his friend Z assists him by
restraining the woman but without himself having intercourse with her,
Z is an accomplice, as opposed to a co-perpetrator, to the rape.
Possible further examples of crimes that cannot be committed through
the instrumentality of another are perjury, bigamy and driving a vehicle
under the influence of liquor.'
This approach further underlines the distinct and separate roles of the
actual perpetrator, having intercourse and the accomplice, who assists.
Each performs a different and distinct function with a different and
distinct intention.”
14
2001 (1) SACR 438 (Nm) at 457H-I
15
2003 (2) SACR 141 (E)
16
2005 (2) SACR 663 (SCA) at 670I
17
Supra at page 452A-B
7
11. It is therefore respectfully submitted that because of the very definition
of common law rape an accused cannot be convicted of common law
rape on the basis of common purpose.
(b) Was the Supreme Court of Appeal correct in the case of the
applicant’s co-accused, Phetoe v S
12. The appellant in Phetoe v S18 has his convictions for common
law rape been set aside by full court and replaced with the competent
verdict of being an accomplice to rape for the reasons stated above
when the matter was argued at the Supreme court of Appeal.
13. Consequently, in Phetoe v S, the Court had to consider whether the
appellant (“Phetoe”) was correctly convicted of being an accomplice to
rape.
14. In the full court decision, the Court reasoned that utilizing the principles
of logic enunciated in R v Blom19 the evidence resulted in an inference
and conclusion to the exclusion of other inferences and conclusions
that Phetoe was the second intruder whose assistance was solicited by
the first intruder to assist him in assaulting and subduing DM in order to
facilitate the first intruder to rape her. (At Paragraph [45])
18
2018 (1) SACR 593 (SCA)
19
1938 AD 88
8
15. In Phetoe v S20, the Supreme Court of Appeal (SCA) referred (At
paragraph [12]) to in Minister of Justice and Constitutional
Development and Another v Masingili and Another where the above
Honourable Court stated the following:
'An accomplice is someone whose actions do not satisfy all the requirements for
criminal liability in the definition of an offence, but who nonetheless intentionally
furthers the commission of a crime by someone else who does comply with all the
requirements (the perpetrator). The intent required for accomplice liability is to further
the specific crime committed by the perpetrator. Upon conviction, an accomplice may
receive the same sentence as a perpetrator.'
16. At Paragraph [12] the SCA also quoted how the learned author CR
Snyman21 describes the position. The SCA considered against this
background, the evidence of Ms DM's evidence.
17. The SCA concluded that to convict the appellant on the basis of his
mere
presence was to subvert the principles of participation and liability as
an accomplice in our criminal law. The Court held that for criminal
liability as an accomplice to be established, there must have been
some form of conduct on the part of Mr Phetoe that facilitated or
assisted or encouraged the commission of the rape of Ms DM during
the two separate incidents in her shack.
20
Supra
21
Criminal Law, 6th edition (2014) at 266
9
18. It is respectfully submitted that the SCA correctly held that Ms DM's
evidence does not disclose any assistance rendered by the appellant in
the commission of the rapes; and the conduct does not amount to
facilitation, assistance or encouragement.
19. Moreover, Mr Phetoe’s the question of liability in this regard was
peculiar to the facts (he was seen sitting on the bed and had laughed
after DM had asked why they were doing this). It is respectfully
submitted that the question of whether or not Mr Phetoe was liable as
an accomplice on this basis is not relevant to the present matter.
20. The full court held in the alternative that the evidence had established
that Mr Phetoe’s culpability to the eight autographic crimes of common
law rape arose from his association in being a member of the gang that
had subjugated the complainants into being raped. The full court
concluded that Mr Phetoe’s association with the gang members who
had perpetrated the rapes had rendered him liable as an accomplice.
21. On appeal to the SCA the Court considered Mr Phetoe’s conviction on
the remaining charges of being an accomplice to rape, housebreaking
with intent to rob and robbery with aggravating circumstances, common
assault and assault with intent to do grievous bodily harm,
housebreaking with intent to rob and attempted robbery with
aggravating circumstances, and malicious injury to property, which
were committed at other households. The SCA pointed out that the trial
10
court found that a prior agreement must have been reached by all
those identified at any of the sites at which crimes had been
committed. It was on this basis that the Mr Phetoe was convicted, even
though he was only identified at Ms DM's shack. The SCA stated that
the trial Court reached this conclusion by inferential reasoning:
because so many offences were committed by so many people at so
many places, those who were identified must have agreed beforehand
to the rampage and everything that it entailed.
22. It is respectfully submitted that the SCA correctly concluded that this
was
not, however, the only reasonable inference to be drawn and, certainly
in respect of the Mr Phetoe, it could not be said that, because he was
seen at Ms DM's shack, he was party to a prior agreement and was
present at all of the other scenes. (At Paragraph [18])
23. The SCA then referred to S v Mgedezi and other22 where it was held
that
in the absence of any prior agreement, the state had to prove the
following requirements of the doctrine of common purpose in order for
an accused to be held criminally accountable. Firstly, the appellant
was present at the scene of violence. Secondly, he was aware of the
perpetration of such offences on the complainants in the other
households. Thirdly, he had intended to make common cause with
22
1989 (1) SA 687 (A)
11
those who were actually perpetrating the offences. Fourthly, he
manifested his sharing of a common purpose with the perpetrators of
the offences by himself performing some act of association with the
conduct of the others. Fifthly, he had the requisite mens rea, ie he
intended to assault, break into and rob, or must have foreseen the
possibility of the commission of these offences and performed his own
act of association with reckless disregard as to whether or not such
eventuality ensued. (At Paragraph [19])
24. It is respectfully submitted that the SCA correctly concluded that there
was no such evidence to prove that Mr Phetoe was present at the
scenes of violence where the rapes, assaults, housebreakings,
robberies and other offences were being committed, other than at the
household of Ms DM and Ms N. nor was it proven that he had the
requisite mens rea, was aware of the violence taking place in the other
households and had manifested his sharing of a common purpose with
the perpetrators of the rapes, assaults, housebreakings, robberies and
other offences. (At Paragraph [20])
25. It is therefore respectfully submitted that the SCA correctly found that
Mr Phetoe’s convictions as an accomplice to rape, and other offences
where he was not proven to be present, aware of the violence and
where there was not proof of mens rea – founded on the doctrine of
common purpose – ought to be set aside.

12
(c) Distinction between the convictions of Mr Phetoe and the
applicant
26. The next issue in the direction is whether is there anything to
distinguish
the convictions of the applicant puts in dispute from those of which his
co-accused, Mr Phetoe. These distinctions are set out below:
26.1 The witness Noloyiso Nkohla (“Nkohla”) who lived at household
2 testified that the attackers had forced entry into her shack.
She was stabbed on her right thigh and thereafter raped several
times. She could not say if it was one or more people that raped
her. The last person to rape her inside the shack then took her
outside. He took her towards another shack and then to a toilet
where he raped her. She testified that she had noticed the
applicant as one of the people leaving her shack. She did not
however identify the applicant as one of the people who had
raped her.
26.2 The applicant cannot be held criminally liable for rape of Miss
Nkohla. Mr Phetoe was found not guilty by the SCA on this
count and other charges at count 6 to 8 because there was no
evidence placing Mr Phetoe at household 2. It is respectfully

13
submitted that in the absence of any evidence of the applicant
playing any active role at the scene the conviction based on
common purpose in respect of housebreaking with intent to rob
and attempted robbery as well as on assault cannot be
sustained and they should be set aside.
26.3 Lucy Makgatho (“Makgatho”) who resided at household 8 gave
evidence in relation to 22 to 26. She testified that a number of
persons had entered her shack but she could not say how
many. The assailants demanded identification documents and
money. Some of the intruders tried to penetrate her but could
not do so as they could not obtain erections. She testified that
the applicant then took her outside where he proceeded to have
sexual intercourse with her without her consent.
26.4 There is evidence placing the applicant in household 8 on rape
is
directly implicated by Miss Makgatho who is the victim on the
rape charge.
26.5 Mr Phetoe was only identified as specifically having been
present
inside the shack belonging to Doris Mothobi (“Miss Mothobi”)
and Miss Palesa Ncumisa (Miss Ncumisa), her sister. There
was no evidence that Mr Phetoe had penetrated either Miss

14
Mothobi or Miss Ncumisa, but merely that he was present when
it happened. The SCA set aside Mr Phetoe’s convictions of two
rape convictions relating this incident and other charges.
Although it is stated in the judgment that Miss Mothobi and the
applicant attended same school there is nothing stated as the
role played by the applicant during this incident. We
contend that the applicant’s leave to appeal to these charges be
upheld and convictions be set aside.
26.6 There is a factual distinction between the State’s case against
the
applicant and Mr Phetoe’s; in that in the case of the former he
was specifically identified as being the person who sexually
penetrated one of the complainants (Lucy), whereas Mr Phetoe
was not identified as the perpetrator of rape in any of the
households.
26.7 Mr Phetoe was only identified at one (Household 3) of the
scenes
where a rape was committed and he was laying on the bed of
the victim when asked he laughed, whereas the applicant was
identified at two, ie in one scene (Household 3- counts 9 to 11)
was seen at the time the group was leaving and on the other
scene he was identified as one who sexually penetrated the
complainant (Miss Makgatho).

15
26.8 However, with regards to the remaining counts of rape, the
position of the applicant and Mr Phetoe are similar in that they
were both convicted of these offences on the basis of the
doctrine of common purpose.
27. Based on the authorities cited above the applicant’s application for
leave
to appeal should be granted against the Seven convictions of common
law rape, ie counts (counts 2; 7; 10; 11; 13; 16 and 18).
28. It is trite law that the state bears the onus of proving guilt of the
accused
beyond a reasonable doubt. The court cannot convict on suspicion no
matter how strong it is. See the case of S v Ralukukwe23. The trial
court amongst the other things in its reasons for convicting the
applicant was the issue of modus operandi which was the same when
all these houses were attacked by use of the words “police! police!
Maak die deur oop ons as die polisie!” etc. The SCA held that it cannot
be the only reasonable inference that the accused was involved in the
commission of the offences if the requirements for the doctrine of
common purpose have not been proven.
29. It is our submission that even if the applicant’s conviction on count 23,
23
2006 (2) SACR 394 (SCA)
16
common law rape, the sentence of life imprisonment is a harsh
sentence as there is no evidence of gang rape and he penetrated the
complainant once. We submit that there are reasonable prospects of
success on appeal and leave should be granted on sentence in respect
of count 23 as well.
Conclusion
30. It is clear that both the majority and the minority judgment of the full court
set aside the common law rape of Mr Phetoe. The only difference in the
full court judgments is that the minority set aside the common law rape
convictions whereas the majority convicted Mr Phetoe of being an
accomplice to rape. The SCA has set aside the convictions of Mr Phetoe
as an accomplice to common law rape convictions. We submit that the
interest of justice will be served if the applicant is granted leave to appeal
on the common law rape convictions as well as some charges which were
committed in those households where there is no evidence places him at
the crime scene. His appeal on those counts should be upheld.
Signed at Johannesburg on this the …….Day of …………………. 2019
__________________
Adv. N.L Skibi & Adv. E Guarneri
Instructed by Legal Aid South Africa

17
Impact Litigation Unit
BRAAMFONTEIN
List of Authorities
Case law
1. Phetoe v S 2018 (1) SACR 593 (SCA) at para [18] to [20]
2. S v Kimberley and another 2004 SACR 38 (E) at para [15]
3. S v Williams 1980 (1) SA 60 (A) at 64
4. S v Maxaba 1981 (1) SA 1148 (A) at 1156
5. S v Khoza & others 1982 (3) SA 1019 (A)
6. R v Mbande 1933 AD 382
7. S v Saffier 2003 (2) SACR 141 (SEC)
8. S v Snyman 1968 (2) SA 582 (A) 589F
9. S v Gaseb 2001 (1) SACR 438 (Nm) at 4522H-I

18
10. R v Blom 1938 AD 38
Law book/s Text Book
1. CR Snyman, Criminal Law, 6ht Edition (2014)
Legislation
2. Criminal Law (Sexual Offences) Amendment Act 32 of 2007

1
Cases CCT 323/18 and CCT 69/19
Case no: CCT 323/18
In the matter between:
JABULANE ALPHUES TSHABALALA APPLICANT
and
THE STATE RESPONDENT
and
COMMISSIONER FOR GENDER EQUALITY AMICUS

CURIAE
Case no: CCT 69/19

ANNANIUS NTULI APPLICANT
and
APPLICANTS’ WRITTEN SUBMISSSIONS PURSUANT TO

DIRECTIONS ISSUED BY CHIEF JUSTICE DATED 2 MAY 2019
INTRODUCTION
2
1. Both the applicants were accused in the case of S v Rasedumo and 6 others
in South Gauteng High Court under case number: 37/99. Mr Tshabalala was
accused number 6 and Mr Ntuli was accused number 4.
2. On 23 November 1999 the applicants, together with their co-accused,
Rasedumo, Tebogo Wilson, (Accused 1); Chauke, Thulani Patrick (Accused
2); Mkhwayi, Johannes Gugu (accused 3); Mkhumo, Vuyi Tony (Accused
5); Tshabalala, and Phetoe (Ledwaba), Tebogo Patrick (Accused7) stood
arraigned for eight charges of common law rape, various counts of
housebreaking with intent to rob and robbery with aggravating
circumstances; unlawful possession of firearm and ammunition in
contravention of the Firearms Control Act of 1969; Malicious damage to
property; Assault with intent to do grievous bodily harm.
3. On 23 November 1999 both applicants were convicted1 of:
3.1 Eight counts of housebreaking with the intention commit robbery (Count
1; 6; 9; 12;15;17;22 and 27);
3.2 Eight counts of common law rape (Counts 2, 7, 10, 11, 13, 16, 18 and
23);
1
Record Volume 10 page 806 to 806-809
3
3.3 Three counts of assault with intent to do grievous bodily harm (counts 3;
19 and 25
3.4 One count of common assault (Count 8);
3.5Two counts of malicious damage to property (Counts 14 and 26);
3.6One count of attempted robbery (Count 21).
4. Both applicants were sentenced2 to various years of imprisonment ranging
from 23; 34; 155 years up to imprisonment for life6. The court made an order
that the applicants are to serve an effective life imprisonment7.
5. Both the applicants applied for leave to appeal against their convictions and
sentences. Both applications for leave to appeal against convictions and
sentences to the full bench was dismissed on 15 May 20008.
6. After the applicant’s application for leave to appeal was dismissed accused 6
petitioned the President of the Supreme Court of Appeal (SCA) for leave to
appeal. On 11 September 2009 the Honourable Justice Navsa JA and the
2
Record Volume 11 page 817: Counts
3
Count 8 (common assault)
4
Counts 3; 19 and 25
5
Counts 1;6;9;12;15;17;22 and 27
6
Counts 2;7;10;11; 13; 16; 18 and 23
7
Record Volume 11 page 817
8
4
Honourable Madam Maya JA (as she then was, now President) dismissed
accused’s petition9.
7. After accused 7’s appeal succeeded on 16 March 2018, Accused 6 brought
an application for reconsideration of the dismissal of his petition under
section 17(2)(f) of the Superior Courts Act 10 of 2013. On 26 August 2018
the Registrar of the Supreme Court of Appeal declined to accept
Tshabalala’s application for reconsideration of the order dismissing his
petition because his petition had been dismissed before the provisions of
section 17 (2) (f) of the Superior Courts Act 10 of 2013 came into operation.
8. On 12 December 2018 Accused 6 brought his current application before the
above Honourable Court.
9. Mr Ntuli (herein after will alternatively referred to as accused 4) says that he
sent his application for leave to appeal to the Supreme Court of Appeal
(SCA) after the dismissal of his application for leave to appeal, but it was
never received by the Registrar of the SCA.
10.Accused 4 brought his application pursuant to the directions issued by the
Honourable Chief Justice which was issued on 13 February 2019. On 14
9
5
March 2019 the applicant launched an application seeking an order as set out
in the Notice of Motion10.
11. Accused 4 is seeking direct access as his application has not been dealt with
by the Supreme Court of Appeal, either as leave to appeal or appeal.
12.On 13 February 2019 the Chief Justice issued the following directions to
address the following issues:
12.1 whether an accused can be convicted of common law rape on the
basis of common purpose; and
12.2 whether the Supreme Court of Appeal decision of the applicant’s co-
accused, Phethoe v S11 was correct, and, if correct, whether there is
dispute from those of which his co-accused, Mr Phetoe, was absolved.
13.The issues set out above were addressed in the accused 6’s written
submissions filed with the Registrar of the above Honourable Court on 1
March 2019. The written submissions herein should be read together with
the aforementioned written submissions.
10
Condonation for late filing of the application, direct access, an order setting aside the order dismissing leave
to appeal; leave to appeal against both convictions and sentences on eight counts of rape and leave that the
matter be heard with Case CCT 323/18 J.A Tshabala v The State
11
[2018] ZASCA 20; 2018 (1 ) SACR 593 (SCA)
6
DIRECTIONS
14.On 2 May 2019 the Honourable Chief Justice issued directions setting out
time lines for filing the record and written submissions by the parties as well
as the date of hearing of the matter12.
BACKGROUND FACTS
15.The convictions of the applicants arose from the incident which took place
during the night of 20 towards the early morning of 21 September 1999 at
Umthambeka section in Thembisa. During the said night a group of youths
went on a rampage broke into various houses 872, 907; 908; 909; 910; 911
and upon entering each house, demand identity documents, cash and cover
the victims by blankets and rape the female victims.
16.The victims were robbed of money and other belongings, and the male
victims were assaulted, stabbed and sustained injuries in the process.
Shortly thereafter the applicants and others were arrested and charged with
various offences amongst others 8 common law rapes, housebreaking with
intent to rob and robbery with aggravating circumstances, assault grievous
12
Volume 11 page 892-894
7
bodily hard, common assault; unlawful possession of firearm and
ammunition13.
17.The applicants and 5 others stood trial in the High Court, Gauteng Local
Division. The applicants pleaded not guilty to all the charges. However,
after all the evidence was led they were convicted on eight counts of rape
based on the doctrine of common purpose. They were sentenced to life
imprisonment on the common law rape offences and additional years of
imprisonment on the other counts. The court concluded that the effective
term of imprisonment is one of life imprisonment14.
18.The applicants are seeking leave to appeal the merits of the case and
condonation for the late filing of their application to this Honourable Court.
Before dealing with both issues it is important to deal with jurisdiction of
this Honourable Court in this matter.
JURISDICTION
19. The above Honourable Court enjoined the powers entrusted to it in matters
provided for in section 167 (3)(b) of the Constitution of the Republic of
South Africa, 1996 (herein to refer as the Constitution). The constitutional

13
Record Volume 10 page 727-729
14
Record Volume 1 page (i)-(ixii)
8
issue may also involve the interpretation, protection or enforcement of the
Constitution.15
20. It is contended that this Honourable Court should find jurisdiction to
entertain this matter in three material aspects: Firstly, this matter involves the
interpretation of the doctrine of common purpose on common law crimes of
rape. This is an issue of importance which requires the determination of the
Court. Secondly, the applicants right of access to courts16 is implicated.
Thirdly, the Applicants right to equality before the law and equal protection
and benefit of the law17 is also implicated.
21. Accused 6 sought leave to appeal from the President of the Supreme Court
of Appeal and his application was dismissed. This was before Mr Phetoe’s
leave to appeal was granted to the full court18. Once Mr Phetoe became
unsuccessful with his appeal before the full court, he pursued his matter to
the SCA by way of a special leave to appeal and was granted leave to appeal
to that Court19. Mr Phetoe’s succeeded in challenging his convictions, partly
before the full court and to the much greater extent at the SCA20.
15
Section 167 (7) of the Constitution
16
Section 34 of the Constitution
17
Section 9 (1) of the Constitution
18
19
20
Record Volume 11 page 859-865
9
22.The minority judgment by this Court in the of Van der Walt v Metcash
Trading Co Ltd21 held that “to shut the doors of the appeal Court to one
litigant while opening the doors to another similarly situated litigant is a
violation of the equal protection clause”.
23.The issue of interpretation of the doctrine of common purpose on common
law rape convictions implicate the applicants Constitutional right to freedom
as they have been handed more severe sentence than the sentences to be
meted out if they were convicted of common law rape on only one count - ie
count 23 on accused 6.
24.It is our submission that jurisdiction is founded not only in the unequal
treatment or punishment of the applicants in their convictions based on the
doctrine of common purpose on the common law rape convictions; but also
that fairness requires equal punishment of co-accused, unless they differ in
their personal circumstances like the other co-accused of which it is not the
case with applicant’s erstwhile co- accused 7, Mr Phetoe in particular.
25.It is our submission further, that accused 6 was unable to utilised the
provisions of section 17(2)(f) of the Superior Courts Act22 on the basis that
his application was dismissed before the Act came into operation and the
provisions of the Act apply prospectively.
21
2002 (4) SA 317 (CC) at para [40]
22
10 of 2013
10
26.The only alternative which was available to him was to seek leave to appeal
to this Honourable Court.
27.It is our submission that the provisions of section 34 of the Constitution of
the Republic of South Africa, 1996 provides a right of access to court and
the rules23 of this Honourable Court allows him to apply for direct access
upon application.
28.It is our submission that it will be in the interest of justice that the applicants’
application be granted.
29.This Honourable Court was faced with the similar scenario in the case of S v
Molaudzi24 whereby it reconsidered its initial order dismissing leave to
appeal after it had upheld the subsequent appeal by Mr Mhlongo and Mr
Nkosi in the case of S v Mhlongo; S v Nkosi25.
30.It is our submission that grave injustice would occur if the applicant’s
especially accused 6 door of further appeal would be shut when his former
co-accused 7 (who was convicted on similar facts) was granted leave to
appeal and his seven convictions of common law rape based on the doctrine
of common purpose were set aside by the Supreme Court of Appeal.
23
Rule 18 of the Constitutional Court of SA
24
2015 (2) SACR 341 (CC)
25
2015 (2) SACR 323 (CC)
11
CONDONATION
31.The applicants’ application was filed in December 2018 and in March 2019
respectively. They are also seeking condonation for the late filing of their
applications. The applicants’ application for condonation are supported by
their affidavits which form part of the record.
32.It is trite law that for condonation to be granted it is incumbent upon the
applicant to provide good cause for the delay which include the prospects of
success in the intended action or application. In the case of Malinda v
Minister of Safety and Security26 the Supreme Court of Appeal held that in
any given factual complex, it may be that only some of many possible
factors become relevant to condonation. These may include prospects of
success in the proposed action, the reasons for the delay, the sufficiency of
the explanation offered, the bona fides of the applicant, and any contribution
by other or parties to the delay and the applicant’s responsibility thereof.
[12].."Good cause for the delay" is not simply a mechanical matter

of cause and effect. The court must decide whether the applicant
has produced acceptable reasons for nullifying, in whole, or at
least substantially, any culpability on his part which attaches to the
delay in serving the notice timeously. Strong merits may mitigate
26
2008 (3) ALL SA 143 {SCA) and also reported at 2008 [4] SA 312
12
fault, no merits may render mitigation pointless. There are two

elements at play in section 4(b), viz the subject's right to have the
merits of his case tried by a court of law and the right of an organ
of state not to be unduly prejudiced by the delay beyond the
statutory prescribed limit for the giving of notice".
33.The applicants deposed to affidavits27 in support of their application where
they explain the reasons for the delay in launching the application to this
Honourable Court.
34.It is contended that the applicants’ issue of interpretation of the law relating
to whether the doctrine of common purpose on common law rape is a
constitutional issue which is of important and needs a final determination by
this Honourable Court.
35.The other issue is whether the more severe sentences imposed on the
applicants as compared to their former co-accused 7 (Mr Phetoe), who was
convicted under similar circumstances, can be allowed to stand, in light of
the fact that both the full court and the Supreme Court of Appeal set aside
Mr Phetoe’s convictions where he was convicted of eight counts of rape
based on the doctrine of common purpose. A reference is made to the case
of Van der Walt v Metcash Trading Co Ltd28 .
27
See Affidavit in support of the Applicant’s condonation application page 7 par. 9-13 par 37
28
2002 (4) SA 317 (CC) at par [40]
13
36.It will be submitted on behalf of the accused 6 that even though once he was
informed that he had exhausted all his legal remedies he did not pursue the
matter further but as soon it came to his attention that his former- co-accused
7 was granted leave to appeal he took steps to have his matter taken further.
Once the directions issued by this Court were brought to accused 4’s
attention he took steps to have his matter brought to Court.
37.We submit that the applicants have provided a satisfactory explanation for
the delay and there are reasonable prospects of success on the merits of their
appeal.
38.In the circumstances, an order grating condonation will be justified.
LEAVE TO APPEAL
39.The applicants will extensively deal with the issues pertinent to the Appeal,
infra, and would urge this Honourable Court to consider these submissions
apropos the merits; since the applicants are of the view that it would lead to
undue prolixity to repeat those submissions under this heading.
40.The applicants will submit that the Application raises important issue
regarding to the application of the common law doctrine of common purpose
and its application to common law rape and other autographic offences.
14
41.The applicants will submit that from the contentions advanced there should
be no doubt that they have merit in their Appeal and valid arguments
apropos the application of the doctrine of common purpose to the offence of
common law rape. Should, the application for leave to appeal not be granted,
it would result in the doors of our Courts being closed to sentenced prisoners
who potentially have a legal argument to be made as to why they should not
have been convicted of certain offences.
42.In the result the Applicants would submit that Leave to Appeal Should be
granted.
COMMON PURPOSE AND COMMON LAW RAPE
43.The issue of whether an accused can be convicted of common law rape on
the basis of common purpose was already addressed in the written
submissions filed after the Directive of the above Honourable Court dated 13
February 2019. The applicants will however deal with certain submissions
made by the amici.

15
44.The Supreme Court of Appeal in the cases of S v Mafaldiso29 S v Kimberley30
(an appeal of the decision referred to above) decided not to express an
opinion on the issue as to whether a conviction on a charge of rape on the
doctrine of common purpose is legally competent.
45.In the written submissions by the Centre for Applied Legal Studies,
following the above Honourable Court’s directive dated 13 February 2016;
reliance was placed on S v Nkosi31 and S v Makhubela and Another32 as
authority that in some instances the doctrine of common purpose can apply
to offences which require instrumentality.33
46.In S v Mbuli34 Nugent AJ held35 that the contravention of section 32(1)(c) of
the Arms does not arise from an application of the principles applicable to
common purpose but rather from an application of ordinary principles
relating to joint possession. Nuggent AJ further stated that Marais J had set
out the correct legal position in S v Nkosi supra36 apart from a misplaced
reference to common purpose.
29
2003 (1) SACR 583 (SCA)
30
2005 (2) SACR 663 (SCA)
31
1998 (1) SACR 284 (W)
32
2017 (2) SACR 665 (CC)
33
It was argued that unlawful possession of a firearm was in essence identical to an offence such as driving
under the influence of alcohol. On this premise it was submitted that the doctrine of common purpose as set out
in S v Nkosi supra applies in both instances.
34
2003 (1) SACR 97 (SCA)
35
At para [71]
36
At 286h - i
16
47.In S v Makhubela supra the above Honourable Court considered both S v
Nkosi supra and S v Mbuli supra. The Court held that in casu, in convicting
the applicants for unlawful possession of firearms and ammunition on the
basis of the doctrine of common purpose, the trial court departed from
settled jurisprudence.37 The Court considered subsequent judgments of the
Supreme Court of Appeal which held that an accused could not be found to
be guilty of the unlawful possession of firearms on the basis of the doctrine
of common purpose.38
48.It is respectfully submitted that if offences involving possession can be
classed together with common law rape, then S v Mbuli supra and S v
Makhubela supra would support the contention that the doctrine of common
purpose is not applicable to these offences. At the very least it is
respectfully submitted that S v Makhubela cannot be interpreted as authority
in support of the submission that the doctrine is applicable to common law
rape.
49.The amicus argues that the autographic approach by Snyman39 is an artificial
one, is discriminatory should not be allowed to continue. In fact, their view
37
At para [46]
38
At para [47]
39
In S v Saffier 2003 (2) SACR 141 (SE) at par [9] – [13] Nepgen J considered a number of authorities in
addition to Snyman and concluded that common law rape can be committed only by a man who personally has
sexual intercourse with a woman without her consent.
17
is that the Supreme Court of Appeal has confirmed their standing point that
common purpose is applicable to common law rape as well. They rely on
the two decision by the Appeal Court, R v Mkwanazi40 and K v Minister of
Safety & Security41.
50.With utmost great respect we disagree with the reliance on these two
decisions since the facts in those cases differ from the case at hand here for
the following reasons:
50.1 In Mkwanazi42 case that was referred to, the accused was charged
with rape where the evidence presented it was not clear which one of
the three accused raped the complainant. They were not convicted of
rape but instead they were found guilty of assault with intent to do
grievous bodily harm. On appeal the majority judgment set aside the
assault with intent to do grievous bodily harm and replace it with
assault with intent to commit attempted rape. In this case the Court
never found the appellant guilty of rape based on the doctrine of
common purpose. The conviction was one of an assault with intent
to commit rape. It is trite that the doctrine of common purpose finds
application to the various forms of assault.
40
1948 (4) SA 686 (A)
41
2005 (3) SACR 179 (A) at par [7]
42
Supra
18
50.2 In K v Minister of Safety and Security43 it was a vicarious liability
case as to whether the Minister could be held vicariously liable for
the crimes of rape by the three police officers while they acted within
the scope of their employment. The main distinctive feature in that
caseis that all three police officers raped the victim and obviously
that falls within the definition of autographic act by each and every
single member of the gang of that group. The amicus has pointed
out that Scott J’s comment that all three policemen could have been
convicted of rape even if there had only been a single rape was made
obiter.
51. In the Full Court Judgment of the Northern Cape in S v Moses44 it was held
that the doctrine of common purpose is applicable to rape. The Court
considered S v Gaseb supra and held that the views expressed in that case
were over-fastidious. The Court stated that the definition for a perpetrator
for robbery and rape is the same, whatever means is employed to commit the
crime. The Court further found that the distinction is artificial and more
perceived than real.
43
Supra
44
2010 JDR 0851 (NCK) at para [21]
19
52.The Full Court of the Gauteng Local Division in the case of Phetoe v The
State45 however followed S v Gaseb and Others supra, S v Saffier supra and
the Eastern Cape decision of S v Kimberly supra.
53.It is respectfully submitted that in our common law, the definition of
common law rape is such that the actus reus is committed when there is
penetration and cannot be committed through the agency of another person 46.
In S v Saffier supra Nepgen J correctly pointed out that further support for
this proposition could be found in the fact that according to our common law
a man could not rape a woman that he was legally married to 47. The
significance of this is that according to common law the exception only
found application on the man who personally has sexual intercourse with the
woman and only applied if he was legally married to her. It is respectfully
submitted that Nepgen J correctly concluded that the logical consequence of
this was that common law rape could only be committed by someone who
personally had sexual intercourse with a woman without her consent48.
45
GLD 5537/99
46
S v Gaseb supra at 466f-g
47
This notion, that a husband could not be convicted of raping his own wife, was met with scathing criticism
from civil society and the feminist movement. See J Le Roux and M Courtenay: Sexual Penetration,
Participation and New Legislation: A Critical Note Journal of Contemporary Roman-Dutch Law 74, 286, 2011
at 287;. In 1993 the legislator intervened through the promulgation of the Prevention of Family Violence Act
133 of 1993 which effectively abolished the marital rape exemption by providing in section 5 that “a husband
may be convicted of the rape of his wife”
48
At para [18]
20
54.The amicus refers to international law, and more particularly to the two
decisions of Prosecutor v Furundzija49 which was heard by the ICTY and
Prosecutor v Edouard Karemera Mathieu Ngirumpatse Joseph Nzirorera50
which was heard by the ICTR.
55.In Furundzija supra the accused had been present in the same room when his
subordinate had raped and physically abused the victim. Although the
accused did not personally rape the victim he did administer physical abuse
to her whilst she was being raped. The Trial Chamber explicitly held that
the accused could not be held liable as co-perpetrator on the rape charge.
The accused, was instead convicted for aiding and abetting, a Violation of
the Laws or Customs of War (outrages upon personal dignity including
rape).51
56.It is respectfully submitted that the concept of aiding and abetting is similar
to our law on the liability of an accomplice.52 It is therefore respectfully
submitted that the Furundzija supra decision does not support the contention
that the doctrine of common purpose is applicable to our common law
definition of rape.
49
Case No: IT-95-17/1-T, 10 December 1998 para 232
50
Case No: ICTR-98-44-A
51
At para 273
52
See the definition of an accomplice in Minister of Justice and Constitutional Development & another v
Masingili & others 2014 (1) SACR 437 (CC) para [21]
21
57. In Karemera supra the Court regard to the doctrine of joint criminal
enterprise (“JCE”).53 Joint criminal enterprise, a distinct form of criminal
liability, is a judicial innovation; a creation of the ICTY judges.54
58.The establishment of joint criminal enterprise as a mode of liability was not
welcomed by all. Criticisms were raised about the absence of a proper
statutory or customary international law basis for this notion. Gerhard Kemp
states that: “Some commentators went so far as to label the creation of joint
criminal enterprise by the ICTY as a 'tremendous stain on the legacy of the
Tribunal' (MG Karnavas 'The ICTY legacy: A defence counsel's perspective'
(2011) 3 Goettingen J Internat'l L 1053, at 1074).”55 Kemp points that a
survey of the law and practice of other international, internationalised and
hybrid tribunals reveal that the meaning, scope and application of joint
criminal enterprise is still far from settled, despite the legacy of its creator,
the ICTY.56
59.It should further be noted that where rape and sexual offences were
prosecuted by Courts such as the ICTY and ICTR this was done in a context
of war crimes codified in specific Statutes. For example, Article 3 of the
Statute of the International Tribunal for Rwanda gives the ICTR the power
53
At para 1433 - 1435
54
G Kemp: International criminal law 2018 SACJ 155 at 159 para 1.2.1
55
G Kemp 2018 SACJ 155 at 159 para 1.2.1
56
G Kemp 2018 SACJ 155 at 161-162 para 1.3
22
to prosecute Crimes against Humanity where the accused is responsible for
the crimes (including rape57) when committed as part of a widespread or
systematic attack against any civilian population on national, political,
ethnic, racial or religious grounds.
60.Before the establishment of the ICTY and ICTR rape had never been defined
in international law.58 Neither statute of these ad hoc tribunals, provided a
coherent definition of rape and it thus became a task for the judges to
develop definitions of crimes of sexual violence.59
61.In the Furundzija supra judgment rape was defined as:
“i. the sexual penetration, however slight:
(a) of the vagina or anus of the victim by the penis of the perpetrator or any
other object used by the perpetrator; or
(b) of the mouth of the victim by the penis of the perpetrator;
ii by coercion or force or threat of force against the victim or a third person.'
62. Prof J Le Roux and Yves Muhire note that this definition of rape was
subsequently endorsed by the Appeals Chamber.60
57
Article 3(g)
58
Furundzija supra at para 175
59
Prof J Le Roux and Yves Muhire The status of acts of sexual violence in international criminal law 2009
SACJ 69 at 72
60
Prof J Le Roux and Yves Muhire 2009 SACJ 69 at 73
23
63.It is respectfully submitted that the above-mentioned definition of rape is
more in line with the definition contained in Section 3 of the Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007
(hereafter referred to as "the Act") than our common law definition of rape.
64.It is respectfully submitted that given the particular context (the prosecution
of war crimes) in which the ICTY and ICTR have defined rape, and applied
the doctrine of JCE, these decisions cannot be used to determine what the
existing position is with regard to our common law on the question of
whether the doctrine of common purpose is applicable to the common law
definition of rape.
65.In conclusion, it is respectfully submitted that the decisions in S v Gaseb and
Others supra, S v Saffier supra and the High Court decision of S v Kimberly
supra correctly set out what the current position is in our common law. It is
respectfully submitted that S v Moses supra was wrongly decided insofar as
the Court held that the doctrine of common purpose is applicable to common
law rape.
DEVELOPMENT OF THE COMMON LAW

24
66.The amicus argues for the equal punishment for offenders; in that the current
common law definition of rape is arbitrary and needs to be developed in that
the doctrine of common purpose should be made applicable to the offence of
common law rape.
67.In S v Thebus61 Moseneke J delivering a unanimous judgment by this Court
stated that the need to develop the common law under section 39(2) could
arise in at least two instances. The first would be when a rule of the
common law is inconsistent with a constitutional provision. Repugnancy of
this kind would compel an adaptation of the common law to resolve the
inconsistency.62 The second possibility arises even when a rule of the
common law is not inconsistent with a specific constitutional provision but
may fall short of its spirit, purport and objects. Then, the common law must
be adapted so that it grows in harmony with the “objective normative value
system” found in the Constitution.
68.In Masiya supra, the above Honourable Court held63 that it is the Legislature
that has the major responsibility for law reform. Courts must be astute to
avoid the appropriation of the Legislature's role in law reform when
61
2003 (6) SA 505 (CC) at para [50] at page 533A-B
62
Shabalala and Others v A-G Transvaal and Another 1996 (1) SA 725 (CC); 1995 (12) BCLR 1593 (CC);
National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2)
SA 1 (CC); 2000 (1) BCLR 39 (CC).
63
at paragraph [31]
25
developing the common law. The greater power given to the Courts to test
legislation against the Constitution should not encourage them to adopt a
method of common law development which is closer to codification than
incremental, fact driven development. In Masiya supra the Court did
proceed to develop the common law by extending the common law
definition of rape to include non-consensual anal penetration of a female64.
At that stage the the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007 (hereafter referred to as "the Act"), which
widened the scope of the definition of rape, had not yet been promulgated.
69.Section 3 of the Act now defines rape as follows: “Any person (‘A’) who
unlawfully and intentionally commits an act of sexual penetration with a
complainant (‘B’), without the consent of B, is guilty of the offence of rape.”
70. The expression "sexual penetration" is defined in section 1(1) of the Act as
including any act which causes penetration.65
71.It is submitted use of the word “causes” in the definition of “sexual
penetration”, suggests that the legislature was aware of the classification of
64
At par [45]
65
Which causes penetration to any extent whatsoever by the genital organs of one person into or beyond the
genital organs, anus, or mouth of another person; any other part of the body of one person, or any object,
including any part of the body of an animal, into or beyond the genital organs or anus of another person; or the
genital organs of an animal, into or beyond the mouth of another person.
26
common law rape as a conduct crime, and intended for the new definition of
the offence to constitute a result crime.66
72.Section 35(3)(l) of the Constitution confirms a longstanding principle of the
common law that provides that accused persons may not be convicted of
offences where the conduct for which they are charged did not constitute an
offence at the time it was committed67.
73.It is respectfully submitted that in the event that the above Honourable Court
decides to develop the common law in such a way that the doctrine of
common purpose is made applicable to common law rape, then such a
decision ought not to operate retrospectively, as it would otherwise offend
the constitutional principle of legality68
AD MERITS – ACCUSED 6 ( MR TSHABALALA)
74.The evidence of Miss M Changisa and Mr Mr J. Motloutsi does not form
part of the record as the Registrar of the trial court deposed to an affidavit
stating that the mechanically recording was damaged and the Exhibits were
lost69.
66
See: Snyman: Criminal Law at 346
67
Masiya supra at para [56]
68
Masiya supra at para [51]
69
See Volume 1 Annexure A (a page before page 1 of the record
27
75.However, the notes of the trial court judge where he summarized the
evidence of the witnesses has been utilised in the full court and the Supreme
Court of Appeal of Mr Phetoe’s appeal. The mechanically recording of the
evidence in-chief and cross-examination accused 6 was not transcribed. The
reasons are also set out in the Affidavit in the affidavit deposed to by the
Registrar of the Gauteng Local Division of the High Court70.
76.Although, prima facie one may say that the record is inadequate for the court
to assess whether the findings on credibility of accused 6 and the state
witnesses was properly made in the absence of the complete record. Ant
event it is trite law that the Appeal Court has limited role to determine the
issue of credibility of witnesses.
77.The record was not properly reconstructed the way the procedure was
outlined in the decision by this Court in the case of S v Schoombee and
another71 as no counsel for the parties, nor the accused were not invited and
no affidavit from counsel which state that they were unable to participate in
the reconstruction process.
78.However, it cannot be argued that the notes by the presiding judge is
inadequate in the determination of the issues before this Honourable Court.
70
See Volume 1 Annexure A
71
S v Schoombee & Another 2017 (2) SACR 1 (CC) at par [19]
28
It is our contention is that the trial court erred to find accused 6 guilty not
only on the rape on this set of counts but counts 1 to 5.
79.The only evidence on record places accused 6 near the scene is one of Miss
M. Nkohla saying she saw accused 6 when the group was leaving72.
80.The complainant on the rape count did not see who raped her and she did not
identify accused 6 at the identification parade as one of the young men who
raped her. The DNA evidence which was found in the swabs of the
complainant in these counts link accused 1 only.
81.It is respectfully submitted that the trial court erred in its conclusion that
because accused 6 was identified by the complainant in count 23; the only
conclusion was that he participated in all other rapes as well.
82.Based on the above submissions accused 6 should be granted leave to appeal
on these set of counts committed in household 1.
Household 2- shack of Miss N. Nkohla, complainant count 6-8
83.There is no mechanical recording of the evidence-in-chief of Miss Nkohla,
complainant on counts 6-8. The recording of the said evidence was
destroyed or damaged as described in the affidavit of the Registrar73.
72
Record Volume 8 page 615 line 21
29
84.The complainant in these counts does not place accused 6 inside the house
where she was raped by three young men and one of the them (the last one)
took her outside where he raped her again. She was unable to identify this
person who raped her outside as he was wearing a hat which concealed his
face.74
85.The complainant of rape on this count identified accused 6 when the group
was leaving plot number 910 Umthambeka section.
86.It is our contention that thus witness does not say accused 6 raped her as she
was unable to identify the rapist who raped her outside her shack.
87.The evidence of DNA does not link accused 6 as one of the rapists of the
Complainant in count 7.
88.Therefore, accused 6 cannot be convicted of rape on the group of offences in
this household, even if it can be accepted that the trial court correctly found
that there was sufficient evidence placing accused 6 at the scene of
household 2.
Household 3 –shack of Miss DM & Miss P.N count 9-11
73
Record Volume 4 page 249, continues cross-examination page 251-265
74
Volume 8 page 615
30
89.Miss DM testified that she was attacked by young men during the night in
question whist she was asleep at shack 872. She identified accused 7 as the
person who was present though he only laughed when asked why they were
doing the evil deeds75. When she walked outside to look for Miss PN she
found her being raped by another man76. In this group of offences accused 6
is not placed at scene of rape of the two victims. None of the complainants
identified his as one of the attackers.
90.The trial court erred to find accused 6 guilty on two counts of rape
committed in this household based on the doctrine of common purpose as
there was no evidence placing him at the scene.
Household 4- shack of Miss M. Mangema & Mr J Khumalo counts 12-14
91.The complainants in this group of offences were also attacked at night and
Mss M Mangema was raped and the husband was assaulted. Their valuable
items wristwatch, socks, were robbed on the night in question. Miss
Mangenma places accused 4 at this household. She identified him at the
subsequent meeting and at identification parade and in court77. Mr Khumalo
75
76
77
31
conceded that he could be mistaken to say accused 6 was at the scene when
these group of crimes in count 12-14 were committed78.
92.No DNA linking accused 6 with this group of crimes was found. Accused 6
was not identified by any of these two witnesses as one of the perpetrators of
this group of offences in this household.
93.It is respectfully submitted that the trial court also erred in convicting
accused 6 of any offences based on the doctrine of common purpose, as his
presence at the scene was not proven.
Household 5- shack Mr and Mrs Mtiti –counts 15-16
94.Mr Mtiti conceded he was unable to identify the assailants on the day in
question79.
95.Mrs Mtiti was about six months pregnant when two men entered in their
shack. She was unable to identify the attackers because she was covered in
her face by blankets80.
78
79
80
Record Volume 4 page 296 - 298
32
96.There was no credible eye witness who identified accused 6 in this group of
crimes. There was no evidence of accused 6’s DNA linking him with these
offences.
Household 6 shack of Miss B Mpungose and Mr B Ncube
97.The mechanically recorded evidence of these two witnesses was also not
transcribed based on the reason set out above.
98.From the evidence in the notes summarised by the presiding judge, none of
the two witnesses in this group of crimes identified accused 6.
99.The trial court erred to convict accused 6 based on the doctrine of common
purpose. The DNA of accused 2 was found in the swabs of the complainant
who was a victim of rape.81
Household 7- Miss N. Gigi : Count 21 Attempted robbery with
aggravating circumstances
100. The evidence of this witness was not transcribed as well for the same
reason set out above.
81
Record Volume 8 page 627 line 11
33
101. There was an attempt to rob her but before she could open the door she
realised the attackers were policemen as they were purport to be. She was
unable to identify the assailants82.
102. It is contended that the inference that accused 6 was amongst the
assailants is a dangerous one as this is not the only reasonable inference
which can be drawn. See S v Phetoe83
Household 8 - Counts 22-26
103. It is conceded that there is sufficient evidence placing accused 6 at the
scene of these group offences. His convictions of the crimes committed in
this household cannot be faulted.
Household 9 - The shack of Miss Twala : Count 27
104. The evidence of Miss Twala was not transcribed for the same reason set
out above.
82
83
Supra at par [19]
34
105. Miss Twala testified that she was asleep when about 6 youths came and
forced entry in her house and they demanded money she gave them he
pension money, R200.00 and they left. She was unable to identify the
assailants84.
106. It is our contention that it cannot be the only reasonable inference to be
drawn from the facts that accused 6 was amongst the six youths.
Ad Sentence Accused 6
107. If the court agrees to set aside accused 6’s convictions where he was
convicted based on common purpose, he will be left with one conviction of
common law rape85 which has a minimum sentence of 10 years’
imprisonment.
108. If accused 6 is left with one count of rape, it is submitted that leave to
appeal be granted on sentence and his sentence of life be altered to a term of
imprisonment. Although the high court had a discretion to impose any
sentence including life imprisonment we submit that any sentence less than
life imprisonment would be appropriate.
AD MERITS – ACCUSED 6 ( MR NTULI)

84
85
Count 23
35
Household 1 (Counts 1-5- the shack of Miss M. Changisa & Mr J. Motloutsi)
109. Having regard to the summary of the evidence as reflected in the
judgment as follows, it is our submission that accused 4’s conviction on the
rape and assault grievous bodily harm cannot be sustained on these counts.
The only evidence is that he was seen standing near the fence is not
sufficient to a finding that he associated himself with either rape of Miss
Changisa or assault of her boyfriend86.
110. Miss Changisa identified accused number 4 at the identification parade
which was held on 5 November 1998. It is not stated that she identified
accused 4 as one of the attackers. In her evidence she says two men entered
the house, these two men raped her inside the house and the second one took
her outside and the person who took her outside raped her repeatedly
outside87.
111. Mr Motloutsi’s evidence is also part of the transcribed record whose
mechanically recordings were damaged. However, from the evidence
86
Volume 8 page 867 lines 10-20
87
36
Judge’s notes this witness was unable to identify any of the attackers who
assaulted him88.
112. Ms Changisa does not place accused 4 as one of the two men who entered
the house. It cannot be one of the men who raped her nor one who assaulted
her boyfriend89.
113. The evidence of Ms N. Nkohla a next door neighbour does not assist the
respondent in proving these counts. Miss Nkohla alleges that she saw
accused 4 climbing the fence of Mr Twala’s premises next door. From the
evidence of this witness it does not take the case on this household any
further as this witness places accused in her shack as the person who shook
the door and five youths came in90.
114. We submit that the court a quo erred to find that he had common purpose
to commit housebreaking with intent to rape and he cannot be convicted by
merely being identified as a person who was standing near the fence away
from the house of Miss Changisa.
Household 2 (Counts 6 to 8- Shack of N. Nkohla)
88
Volume 8 page 613 lines 51 to 52
89
Volume 8 page 613 line 17
90
37
115. On the early hours of 21 September 1998 Miss Nkohla was woken by
stones which were pelted in her shack number 910. She peeped through and
saw accused 4 climbing the fence in the next door neighbour, Twala’s
premises. There were people at the door shouting that it be opened
pretending to be the police. The door was forced open and there were five
young men who entered inside demanded money and once she said she does
not have they stabbed her instructed her to close her eyes. She says she was
raped by three or four of these men who gained entry in her house91.
116. From the evidence on this count the complainant, Miss Nkohla does not
say that accused number 4 was one of her rapists. She only places him
within the vicinity, apart from the fact that he went up and shook the door
and about five youths entered inside the house. The evidence of the DNA
points at Accused 2 as one of the of the youths who raped her92.
117. The evidence of accused 4 both in chief and cross-examination was not
transcribed also rely on the notes where he raised an alibi defence which was
rejected by the court. On the notes of the judge accused 4’s version is
summarized93.
91
Volume 8 page 613
92
93
38
118. It will be contended that the trial court erred to infer that accused 4 can be
convicted based on the doctrine of common purpose on the rape count (count
7) in the absence of the evidence that he participated in the actual rape just
merely several persons raped the complainant. It can be conceded that on
count 6 and 8 he was properly convicted based on the doctrine of common
purpose as the requirements of Mgedezi94 were proven.
Household 3 (counts 9 to 11 (Shack of Miss DM & PN- housebreaking
with intent to rape and rape and two counts of rape)
119. Miss DM & and her younger sister Miss PN were asleep in the early
hours of 21 September 1998 when they were woken by footsteps on the roof
of their house. Miss DM saw seven youths at the door saying were members
of the police. These youths forced entry into the shack but she is unable to
say how many entered. Miss DM only identified accused 7 (Mr Phetoe) and
was unable to identify the other attackers. Miss DM sister was unable to
identify any of the attackers. She was also sexually assaulted95.
94
Supra
95
Volume 5 page 317-318; 620; 621
39
120. The version of accused 4 is that he was at home but only certain young
men came to his house asked him to temporary keep the goods and one Vusi
had asked him to use his shack as a storeroom of the robbed goods96.
121. We submit that although the court says that accused 4 could not give an
explanation about the wristwatch and the socks he was wearing when he
attended the community meeting on 24 September 1998 it is dangerous
conclusion by the trial court that the only inference could be that accused 4
was one of the young men who participated in the rape of Miss DM and or
Miss PN. None of the two complainants in this household identified accused
4 and the DNA excludes him as one of the rapists. Miss PN was unable to
identify any of the young men who attacked her and her sister, Miss DM.
See the SCA unanimous judgement of S v Phetoe97
Household No 4 Count 12-14 House M. Mangema & J Khumalo-
Housebreaking with intent to rob and robbery with aggravating
circumstances; rape and malicious damage to property.
122. The evidence regarding this household is one of the recordings which
have been damaged and the evidence only comes from the summarized notes
by the presiding Judge. Mr Julius Khumalo was residing at house no 872,
96
Volume 1 page 10 read with Volume 8 page 630
97
2018 (1) SACR 593 (SCA) at par [18]
40
Umthambeka section. On the night of 20 September 1998 he was asleep in
the house with his girlfriend Miss Mangema (hereinafter to refer as (Miss
MM) as it normally happened from time to time. They were woken by a
knocked at the door, three young men came inside the house and the other
three remained outside. The person who was identified my Mr Khumalo
was Malusi who was not amongst the accused in court. At the identification
parade Mr Khumalo identified accused 5 and 6 but he conceded that he was
not absolutely certain he identified them. One of the attackers switched on
the electric light in the house and Miss MM saw accused 4. Miss MM also
identified accused 4 in the identification parade on 5 November 1998. Mr
Khumalo says that socks, wrist watch and some audio cassettes were missing
after the attackers had left. Miss MM was raped but did not see who raped
her. The attackers set some of the goods in the house alight98.
123. After the attack some goods were found at accused number 4, wristwatch,
audio system, socks, audio cassettes etc. On 24 September 1998 in a meeting
accused 4 was present in a meeting and he was seen wearing the wristwatch
and the cream-white socks which were stolen at Miss Mangema’s house on
the date of the incident. When confronted he said that he was given the
socks by Musa99.
98
Volume 8 page 619
99
41
124. There is more evidence places accused 4 at the scene in household 4 but
there is lack of evidence that accused 4 participated in the rape of Miss M.M.
125. The common purpose is applicable on count 12 and 14 and there is no
fault on the conviction on those two counts (housebreaking (Count12) and
malicious damage to property (count 14). However, there is no sufficient
evidence to convict accused 4 on count 13 ie rape.
126. Therefore, we submit that accused 4’s application for leave to appeal be
granted in respect of count 13 and the conviction on that count be set aside.
Household 5 (count 15 to 16- Housebreaking with intent to rob and
robbery with aggravating circumstances and rape.
127. Mr and Mrs Mtiti were residing at house number 910 Umthambeka
section. They were staying with three of their children. On 20 September
1998 they went to bed at night. Whilst asleep there was a bang on the door
by youths who were saying “police ! police !”. The three of the youths
forced the door opened and demanded money, at first the victims told them
that they do not have money, and later handed a R50, 00. Mrs and Mrs Mtiti
were instructed to lie down in their stomachs. Mrs Mtitit was six months
pregnant and visible so. The evidence shows that one of the youths raped
42
Mrs Mtiti. and one youth asked the rapist to stop due to condition of Mrs
Mtiti was in but he never stopped100.
128. Both witnesses attended a meeting on 24 September 1998 where accused
4 was confronted and admitted his involvement. It transpired that Mr Mtiti
was mistaken to say that he attended as he must have been at work. The trial
court says the evidence of admission by accused 4 at the meeting is almost
irrelevant101.
129. Miss Mtiti only identified accused 4 at the identification parade merely
because he was present in the subsequent meeting when accused 4 was
confronted cannot be relied upon. Neither of them identified accused 4 at
the scene on the day in question102.
Household 6 (Counts 17-20- shack of B. Mpungose & Mr B Ncube)
130. The evidence of the two complainants on this household was not
transcribed and the recordings were damaged as per Registrar’s affidavit.
The summary of their evidence is reflected in the summarily of the evidence
by the court a quo. The complainants in these counts Miss Mpungose and
100
Volume 4 page 270, 271, 274-275
101
Volume 4 page 295;296 lines 19-20; 297
102
43
Mr Ncube were lovers, boyfriend and girlfriend. They were staying at house
number 908 Umthambeka section. On the early hours of 21 September 1998
they were woken by people who were knocking at the door, saying “Maak
oop, ons as polisie”!. The door was forced open. These men demanded cash
and upon entry they switched on the light and broke it. Ms Mpungose
identified accused 4 in the house, in the meeting and at the identification
parade and in court. Mr Ncube was slapped and he was struck by an object
and was bleeding from his temple. Their heads were covered by blankets
and she was raped by more than two persons but she was unable to identify
who raped her. Both Ms Mpungose and Mr Ncube testified that some goods
were missing, ie drinking glasses, cash of R100.00103
131. The evidence of Mr Ncube who only identified accused 4 at the meeting
held on 24 September 1998 and at the scene he was unable to identify him.
This leaves the evidence of Miss Mpungose alone, her evidence ought to
have been treated with and she is only witness who claimed to have seen
accused 4 at the scene on the early hours of the morning. She was unable to
identify who actually sexually assaulted her and there were many youths
inside the house104.
103
104
44
132. We submit that there is no sufficient evidence that accused 4 participated
in the rape of Miss Mpungose, she and her boyfriend were covered over their
heads. However, there is sufficient evidence places accused 4 in the house of
the complainants, therefore he was correctly convicted on counts 17-
housebreaking; 19 assault with intent to do grievous bodily harm (counts
19). The evidence led reveals that accused 2’s DNA was found in the swabs
of this victim of rape.
133. We ask the court to grant accused 4 leave to appeal on count 18 only on
the offences committed in this house. He was acquitted on count 20.
Household 7- shack of Nowelile Gigi (Housebreaking with intent to rob
and attempted robbery (Count 21)
134. The evidence of the complainant of this household was not transcribed
for the reason set out above. The summary of her evidence appears in the
notes of the presiding judge in the court a quo. Miss N Gigi and elder
woman was residing in a small brick house and the main house 910
Umthambeka section. She was woken by person who were knocking at the
door saying “maak oop ! maak oop!” she opened thinking were police but
before they entered she released they are not police and she close the door
while they were still outside. They threatened to break the window, the next
45
door neighbour screamed for help and they ran away. She attended a
meeting where accused 4 was questioned about his involvement. She was
unable to identify the attackers105.
135. We submit that the court a quo erred to find accused 4 guilty of attempted
robbery on this count. He ought to have been acquitted due to lack of
evidence for identity of the assailants. Mr Phetoe, erstwhile accused 7’s
conviction was set aside by the Appeal Court on this count and accused 4 is
in the same position. There is no probative value to attach on the fact that
she was present when accused 4 was confronted.
Household 8 ( Counts 22 to 26- housebreaking; rape, Assault, assault GBH and
malicious damage to property).
136. Miss L. Makgatho (herein to refer as Miss M) testified that on the night
of 20 September 1998 she was asleep with her boyfriend at house number
910 Umthambeka section. Whilst asleep a group of men knocked at the door
uttering words “maak die deur oop!. They didn’t open but the door was
forced opened a group of men came inside demanded cash. She was raped
by Accused 6 after she had been taken to the toilet. She identified accused 6
105
46
as there was illuminating light outside. Her boyfriend, Mr Eric Mdaka
testified he saw accused 4 jumping fence between house 909 and 910106.
137. The trial court rejected the evidence of Mr Mdaka on a number of issues
save on identity of accused 4 as it found corroboration.
138. We submit that there is no sufficient evidence linking accused 4 with rape
of Miss M in this count. There is no evidence that accused 4 was amongst
the persons who entered this household.
139. Accused 4 is in the same position of Mr Phetoe, erstwhile accused 7
whose convictions were set aside in respect of this group offences ie counts
22-26.
See S v Phetoe case107
Household 9 (Count 27- Housebreaking with intent to rob and robbery with
aggravating circumstances)
140. The evidence of Miss Twala is also not transcribed her evidence appears
in the notes by the presiding judge of the trial court. Miss Twala is an
elderly woman who was sixty-three years old was attacked on 21 September
106
Volume 4 pages 239-245
107
Supra
47
by youths who came and demanded her to open the door after telling her that
they were police. She opened the door and these men demanded money and
she gave them her last pension money, R200.-00. She was unable to identify
any of the young men who robbed her108.
141. We submit that the trial court erred to convict accused 4 relying on the
modus operandi when there is no evidence which places accused 4 in the
house of Miss Twala.
142. In this count accused 4 is in the similar position of his erstwhile co-
accused whose conviction was set aside by the Appeal Court.
143. In the circumstances, we ask this Honourable Court to grant accused 4
direct access and leave to appeal on this count as well.
Conclusion
144. We submit that there is sufficient legislative framework which empower
the respondent to charge the accused in line of the facts in their disposal on
each case.
108
Volume 8 page 626
48
145. The High Court erred in application of the doctrine of common purpose
on common law rape counts of both applicants as well as well as the other
offences where their presence at the scene was not proven. It is respectfully
submitted that this Honourable Court should uphold the applicants’
application by granting them condonation and leave to appeal as well as
setting aside the convictions and sentences on the common law rapes save
count 23 (accused 6) rape and the other related group of offences where his
presence at the scene was not proven.
Ad Accused 4
146. It is our submission that a proper case has been for the applicant that the
applicant be granted the relief sought in the Notice of Motion.
Dated at Johannesburg on this the ……Day of …………………2019
______________
Adv. NL Skibi & Adv. E Guarneri
Counsel for the Applicant on instruction of Legal Aid SA
List of authorities:
1. S v Kimberley and Another 2004 (2) SACR 38 (E)
2. S v Kimberley and Another 2005 (2) SACR 583 (SCA)

49
3. S v Saffier 2003 (2) SACR 141 (SE)
4. S v Luzipho 2017 JDR 0007 (ECG) at para [26]–[27]
5. S v Moses 2010 JDR 0851 (NCK)
6. S v Sebogo 2018 JDR 2212 (GJ)
7. S v Phetoe 2018 (1) SACR 593 (SCA) at par [16] & [18)
8. Van der Walt v Metcash Trading Co Ltd 2002 (4) SA 317 (CC) at par [40]
9. S v Schoombee & Another 2017 (2) SACR 1 (CC) at par [19]
10.S v Chabedi 2005 (1) SACR 415 (SCA) at par [5]
11.S v Gaseb and others 2001 (1) SACR 438 (NSC)
12.R v Mkwanazi 1948 (4) SA 686 (A)
13.Masiya v Director of Public Prosecutions and Another 2007 (5) SA 30 (CC)
14. Shane Jacobs and Others v S [2018] ZACC
15.S v Nkosi 1998 (1) SACR 284 (W)
16.S v Makhubela and Another 2017 (2) SACR 665 (CC)
17.S v Mbuli 2003 (1) SACR 97 (SCA)
18.Minister of Justice and Constitutional Development & another v Masingili &
others 2014 (1) SACR 437 (CC)
19.Prosecutor v Furundzija Case No: IT-95-17/1-T, 10 December 1998
20.Prosecutor v Edouard Karemera Mathieu Ngirumpatse Joseph Nzirorera
Case No: ICTR-98-44-A
Books:
50
1. Professor Jonathan Burchell, Principles of Criminal Law 5th edition (2016),
page 613
2. Professor C.R Snyman, Criminal Law, 6th edition, page 262
Legislation:
1. Criminal Law Amendment Act 105 of 1997
2. Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of
2007
3. Constitution of the Republic of South Africa, 1996
Articles in Legal Journals:
1. Prof J Le Roux and Yves Muhire: The status of acts of sexual violence in
international criminal law 2009 SACJ 69
2. Gerhard Kemp: International criminal law 2018 SACJ 155
3. J Le Roux and M Courtenay: Sexual Penetration, Participation and New
Legislation: A Critical Note Journal of Contemporary Roman-Dutch Law 74,
286, 2011
1
Cases CCT 323/18 and CCT 69/19
Date on roll – 22 August 2019
Case CCT323/18
JABULANE ALPHUES TSHABALALA APPLICANT
and
and
COMMISSIONER FOR GENDER EQUALITY AMICUS

2
Case no: CCT 69/19
ANNANIUS NTULI APPLICANT
and
RESPONDENTS WRITTEN SUBMISSSIONS PURSUANT TO
DIRECTIONS ISSUED BY CHIEF JUSTICE DATED 2 MAY 2019
A. INTRODUCTION
1. On 23 November 1999 the Applicants, Mr Ntuli (accused 4) and Mr
Tshabalala (accused 6), were convicted and sentenced , inter alia,
in the Gauteng Local Division of the High Court Johannesburg
before Willis J and two assessors on twenty three counts as
follows:
3
1.1 One count of housebreaking with the intent to commit
robbery (Count 1) and sentenced to 15 years imprisonment;
1.2 Eight counts of common law rape (Counts 2, 7, 10, 11, 13,
16, 18 and 23) and sentenced to life imprisonment on each
count;
1.3 Three counts of assault with intent to do grievous bodily
harm (Counts 3, 19 and 25) and sentenced to 3 years
imprisonment on each count;
1.4 One count of housebreaking with the intent to commit
robbery and attempted robbery (Count 6) and sentenced to
15 years imprisonment;
1.5 One count of common assault (Count 8) and sentenced to 2
years imprisonment;
1.6 Six counts of housebreaking with the intent to commit
robbery and robbery (Counts 9, 12, 15, 17, 22 and 27) and
sentenced to 15 years imprisonment on each count;
1.7 Two counts of malicious injury to property (Counts 14 and
26) and sentenced to 3 years imprisonment on each count;
1.8 One count of attempted robbery (Count 21) and sentenced to
8 years imprisonment.
4
The effective sentence for Mr Ntuli (accused 4) and Mr Tshabalala
(accused 6) was life imprisonment.
Record, Volume 10, Page 800 line 18 to 809 line 10
Volume 11, Page 815 line 1 to 817 line 12
2. The Applicants convictions were primarily based on their alleged
participation in a common purpose as part of a prior
conspiracy/agreement to commit various crimes, including rape.
They were found not guilty on counts 4 and 5 (unlawful possession
of arms and ammunition), count 20 (pointing a fire-arm) and count
24 (assault). However, on some counts the Applicant’s convictions
and sentences can still be confirmed even if no prior
conspiracy/agreement had been proved. In the written submissions
filed by the Applicants it was conceded that the convictions on the
following counts were in order as will be summarised below.
3. Mr Ntuli’s (accused 4) convictions on counts 6 (housebreaking with
the intent to commit robbery and attempted robbery), 8 (common
assault), 12 (housebreaking with the intent to commit robbery and
robbery), 14 (malicious injury to property), 17 (housebreaking with
the intent to commit robbery and robbery) and 19 (assault with the
intent to commit grievous bodily harm) as a participant in the

5
second format of common purpose (spontaneous association –
see paragraph 14.2 below) were not disputed.
Written submissions by the Applicants – page 38 paragraph
118, page 41 paragraph 125 and page 44 paragraph 132.
4. Mr Tshabalala’s (accused 6) conviction as one of the physical
perpetrator’s on count 23 (rape) and as a participant in the second
format of common purpose as part of Counts 22 (housebreaking
with the intent to commit robbery and robbery), 25 (assault with the
intent to commit grievously bodily harm) and 26 (malicious injury to
property) were not disputed.
Written submissions by the Applicants – page 33 paragraph
103.
5. The Applicants were refused leave to appeal and on 11 September
2009 their petition to the SCA was also refused. Both Applicants
are now seeking direct access to this Court, subsequent to the
Chief Justice’s posed questions on 13 February 2019.

6
6. On 16 March 2018, one of the Applicant’s co-accused, Mr Phetoe’s
(Accused 7), convictions and sentences were all set aside by order
of the Supreme Court of Appeal in S v Phetoe 2018 (1) SACR 593
(SCA).The following relevant aspects need to be emphasized.
6.1 On 10 June 2016, the Full Bench of the Gauteng Local
Division, Johannesburg in the Phetoe matter ruled that
common purpose did not apply and convicted him by majority
as an accomplice to the rapes. It was only his convictions as
an accomplice to rape that was before the Supreme Court of
Appeal. His appeal was upheld in this regard.
6.2 This Court is not bound by the decisions of the Full Bench
and the Supreme Court of Appeal in the Phetoe matter and
can consider the decision by the Trial Court afresh.
B. CONDONATION
7. The Respondent will not oppose the Applicants applications for
condonation.
7
C. JURISDICTION
8. In S v Jacobs and Another 2019 (1) SACR 623 (CC) the Court
was spilt 5-5 in their ruling as to whether or not a constitutional
issue was raised in the application of the doctrine of common
purpose.
9. In many previous decisions this Court have made it clear that the
threshold requirement required for access to this Court, is that the
issues to be decided must be constitutional matters or an arguable
point of law of general public importance, which ought to be
considered by this Honourable Court. The abovementioned
principles were again reiterated by this Court in the judgment of
General Council of the Bar of South Africa v Jiba and Others
[2019] ZACC 23, which was delivered on 27 June 2019 in case
number CCT 192/18 (in this regard see paragraphs 38 – 60).
10. In the matter now before this Court it is submitted that the Court
indeed has jurisdiction, especially relating to the issue whether or
not an accused can be convicted of common law rape on the basis

8
of common purpose (one of the questions also raised before by the
Chief Justice, dated 13 February 2019) as it is at least of general
public importance, which ought to be considered by this
Honourable Court.
11. The Applicants were also found guilty on the basis of a prior
conspiracy/agreement not only on the rape counts, but also other
counts of house breaking, assault with intent to commit grievously
bodily harm, common assault, malicious injury to property and
attempted robbery. It is submitted that this Court does not have
jurisdiction to deal with those counts as it does not meet the
jurisdiction test.
12. However, in the alternative it is submitted that if this Court rules
eg. that the prior conspiracy/agreement had not been proved on
the eight rape counts, it can consider the facts with regard to with
those other counts on which the Applicants were convicted on the
same legal basis (subject to the counts on which concessions were
made by the Applicants in their written submissions discussed at
paragraphs 2 to 4 above).
9
D. COMMON PURPOSE AND RAPE
13. The decision S v Jacobs and Another, supra, also summarizes
some key legal principles in dealing with the doctrine of common
purpose relevant to the present matter before this Court.
14. In particular, the remarks by Theron J
14.1 At page 643 paragraphs 69 and 70 (footnotes omitted)
(69)“In Motaung, the Supreme Court of Appeal defined
common purpose as a “purpose shared by two or more
persons who act in concert towards the
accomplishment of a common aim”. The practical effect
of the application of this doctrine is that “if two or more
people, having a common purpose to commit a crime,
act together in order to achieve that purpose, then the
conduct of each of them in execution of that purpose is
imputed to the others”.
(70) The operation of the doctrine does not require
each participant to know or foresee in detail the exact
way in which the unlawful results are brought about.

10
The State is not required to prove the causal
connection between the acts of each participant and
the consequence, for example murder”
14.2 And again at page 644 paragraph 72 of the decision
(footnotes omitted)
“(72)There are two possible ways in which a common
purpose may arise:
(a) By prior conspiracy (agreement) to commit
the crime in question: for example, where X
and Y (or X, Y and Z) agree in advance to
commit a particular crime, which implies a
bilateral or multilateral act of association.
(b) By conduct (spontaneous association): for
example, where X notices (or Y and Z)
committing a crime, and simply joins in.
This would be a unilateral act of
association. This form of association is
most commonly found in cases of mob
violence.”
11
See also S v Thebus and Another 2003(2) SACR 319
(CC) at page 335/6 paragraph 19 -
“The liability requirements of a joint criminal
enterprise fall into two categories. The first arises
where there is a prior agreement, express or
implied. In the second category, no such prior
agreement exists or is proved.’
15. Froneman J at page 652 paragraph 106 of the S v Jacobs and
Another, supra, decision also deals with the two possible format’s
as follows –
“There is no dispute here about the content of the common
law. Where there is a prior agreement between parties to a
common purpose there need not be presence or participation
by each when the fatal assault is administered. Where no
prior agreement is established presence at or before the fatal
blow is necessary. Where the time of the fatal blow cannot
be established then a finding of murder cannot follow, at
most a finding of attempted murder or some other form of
assault….”
12
16. In the following cases the Court primarily dealt with the second
form of common purpose (spontaneous association).
16.1 Thebus, supra, decision at page 336 paragraph 19 (‘in the
present case the evidence does not prove any such prior
act”);
16.2 Jacobs, supra, decision at page 644 paragraph 73 (‘the
case does not concern the first form of common purpose, but
only the second”)
16.3 S v Makhubela and Others 2017(2) SACR 665 (CC).
17. It is submitted that the present matter before this Court should be
decided upon in dealing with the first form of common purpose
(prior conspiracy/agreement), which implies a bilaterial or
multilateral act of association and where the accused needs not to
be present or participate. It will be argued that the Trial Court
correctly decided that the first form of common purpose (prior
conspiracy/agreement) had indeed been proved.

13
Record Volume 10, Page 791 line 15 to 793 line 21 and
Page 794 lines 15 to 17 where the Trial Court dealt with
common purpose and indicated that a common purpose
must have been formed before the attacks began.
E. ARGUMENTS AGAINST USING COMMON PURPOSE IN RAPE
CASES
18. The main legal argument against using common purpose in
common law rape cases is that rape is a crime, which can only be
committed by the instrumentality of a person’s own body. The
Applicants in their written submissions also deal extensively with
case law and the decision in S v Moses 2010 JDR 0851 (NCK)
where Kgomo JP remarked that common purpose ought to apply
to rape cases. In many of the cases discussed, it relates to a
single incident where multiple accused raped the complainant and
it is indeed more appropriate to regard those participants as
direct/physical perpetrators. The obiter remarks made by Kgomo
JP in the Moses, supra, decision at paragraphs 33-34 need to be
considered in the light of Snyman’s remarks that common
purpose is not applicable to autographic crimes (see Snyman,
Criminal Law, Six Edition, page 262, paragraph 14) -

14
“33. In terms of the Gaseb reasoning, I suggest, if five
bandits conspire to rape a woman or a man to punish
him/her for what may have passed between them on a
previous occasion and in accomplishing this conspiracy the
fifth co-conspirator is interrupted before the act, he will be
exonerated even though the evidence establishes the
conspiracy and the fact that the fifth bandit was present on
the scene, and was waiting his turn. If he can be convicted of
conspiracy to rape why can't he be convicted of common
purpose in the same way as a robber?”
34. In my view the views expressed in the Gaseb case are
over-fastidious. The definition for a perpetrator for robbery
and rape is the same, whatever means is employed to
commit the crime. The distinction is artificial and more
perceived than real”
19. In the present matter, the Court is dealing with eight women that
were raped (in many cases more than once) in seven different
households over a short period. It is submitted that Snyman’s
comments are not relevant when a prior conspiracy/agreement had

15
been proved as the conduct of each accused in execution of that
purpose is imputed to each other.
20. In addition, at the International Criminal Tribunals, common
purpose or participation in a joint criminal enterprise is considered
as a form of committing. An accused can either physically commit
a crime or participate in a joint criminal enterprise/common
purpose. Both are regarded as forms of committing in addition to
other form of possible criminal liability ie aiding and abetting,
instigating etc. In particular see the following -
20.1 Jurisprudence of the International Criminal Courts and the
European Court of Human Rights, Procedure and Evidence,
Vladimir Tochilovsky, Martin Nijhoff Publishers, 2009 at page
17-18. It deals, inter alia, with the jurisprudence at the ad hoc
ICTY and ICTR Tribunals –
“…although the Statute makes no explicit provision to
“joint criminal enterprise” as a mode of responsibility,
participation in a joint criminal enterprise is a form of
“commission…Joint criminal enterprise is considered

16
as a form of participation in the crime coming from the
word “committing”
See also - The criminal responsibility of senior political
and military leaders as principals to international
crimes, Hector Olasolo, Hart Publishing, Oxford, and
Portland, Oregon, 2009 - for a comprehensive study of
the concept of the joint criminal enterprise.
20.2 The International Criminal Court (ICC), however, deals with
common purpose in its Statute. Article 25(3)(a) and (d) of the
Statute deal with individual criminal responsibility and
common purpose as follows -
“(3)..A person who commits a crime within the
jurisdiction of the Court shall be individually responsible
and liable for punishment for a crime within the
jurisdiction of the Court if that person -
(a) Commits such a crime, whether as an individual,
jointly with another or through another person,
regardless of whether that other person is criminally
responsible.
17
……….
(d) In any other way contributes to the commission or
attempted commission of such a crime by a group of
persons acting with a common purpose. Such
participation shall be intentional and shall either
(i) Be made with the aim of further the criminal
activity or criminal purpose of the group, where
such activity or purpose involves the commission
of a crime within the jurisdiction of the Court, or
(ii) Be made in the knowledge of the intention of the
group to commit the crime”
21. It is submitted that the same principles can apply in deciding that
rape can also be committed as a form of commission through
participation in a common purpose, at least where a prior
conspiracy/agreement had been proved.
F. THE DECISION BY THE TRIAL COURT
22. It is trite law that the Trial Court is in the best position to evaluate
the evidence presented during trial. In doing so the Trial Court

18
correctly ruled that a common purpose was formed before the
attacks began -
“I already said that it is clear to us beyond any reasonable
doubt, from the evidence as a whole, in particular the times
and places of these attacks, the systematic pattern of the
attacks, for example the calling out of “Police! Police! , the
knock on doors, the throwing of bricks and stones , switching
on and off of the lights, demanding of money, the ordering or
forcing the covering of the victims’ heads with blankets, the
raping of the women, the assaults on the men, the
ransacking of the shacks and in a very similar manner, the
leaving of some persons outside of the shacks with only
some entering the shacks and the removal of goods, and the
cross-identification of various of the accused by various of
the complainant, that it was a single group that was
responsible for these attacks and that it acted as a cohesive
whole. It is also clear that different roles were played by
different accused at different times in different shacks. It is
also clear beyond reasonable doubt that in no instance did
the whole group enter any one shack, and that some kept
watching while others went into the shacks. It is clear beyond
reasonable doubt that these attacks were not spontaneous,

19
but were planned. A common purpose must have been
formed before the attacks began”. (my underlining.
Record Volume 10 - page 793 line 22 to 794 line 17
G. EVALUATION OF THE EVIDENCE PRESENTED AND RULED
UPON BY THE TRIAL COURT
23. In Thebus, supra, at page 345 paragraph 45, the Court clarified
the role a Trial Court should play, dealing in particular with the
second form of common purpose (spontaneous association) -
'…They bring home the duty of every trial court, when
applying the doctrine of common purpose, to exercise the
utmost circumspection in evaluating the evidence against
each accused person. A collective approach to determining
the actual conduct or active association of an individual
accused has many evidentiary pitfalls. The trial court must
seek to determine, in respect of each accused person, the
location, timing, sequence, duration, frequency and nature of
the conduct alleged to constitute sufficient participation or
active association and it's relationship, if any, to the criminal
result and to all other prerequisites of guilt. Whether or not

20
active association has been appropriately established will
depend upon the factual context of each case.' (my
underling).
24. The Trial Court in its decision, indirectly applied the general
principles set out above in the Thebus, supra, decision in arriving
at a conclusion that a common purpose had been formed prior to
the attacks (see again paragraph 22 above).
25. It is submitted that the guidelines set out in the Thebus, supra,
decision can also be of assistance to determine whether or not a
prior conspiracy /agreement had indeed been proved relevant to
the first form of common purpose. In particular as to the location,
timing, sequence, frequency and the nature of the conduct of the
accused are considered in eventually inferring that a prior
conspiracy/agreement had indeed been proved, expressly or
implied.
26. The facts relevant to the incidents that took place in the nine
households will be further discussed and it will be argued, that on
the totality of evidence presented, the only reasonable inference
that can be drawn is that there was indeed a prior

21
conspiracy/agreement to commit the crimes pleaded in the
indictment as will be set out further below.
Location
27. All the offences were committed in close proximity to each other.
The Trial Court ruled as follows
“They went from plot 907 to plot 908, to plot 909, to plot 910
and then to plot 872 in the Umthambeka Section, climbing
over walls and fences when moving from 907 to 908 to 909
to 910”
Record Volume 10, Page 728 lines 1-4
Timing
28. The offences were all committed between 01:00 to 02:30/45.
Within that short period nine households were broken into and
victims were robbed, assaulted etc. Eight female victims were
raped, most of them by more than one of the assailants.

22
Record Volume 10, page 741 line 5, Page 758 line 16 and page
757 line 19
Sequence/frequency/participation
29. The Trial Court ruled as follows -
“They (assailants) called out, “Police! Police! Police!”, threw
stones on the roofs and generally made a noise. They forced
entry into almost every shack in the yards of these properties
and once inside Proceeded to terrorise the occupants.
Members of this group, whom I shall call a gang, raped eight of
the women who occupied these shacks. Several of the women
were raped repeatedly. In a number of instances, they were
raped repeatedly and by a number of men. In a number of
instances where the women had boyfriends occupying the
shacks with them their boyfriends were assaulted by members
of this gang.”
Record Volume 10 Page 728 lines 5-14

23
What occurred within the nine households will now be discussed in
further detail below.
30. Household 1 (Counts 1-5 - the shack of Miss M. Changisa & Mr J.
Motloutsi)
30.1 The Applicants were convicted on housebreaking with the
intention to rob (count 1), rape (count 2) and assault with
intention to commit grievously bodily harm (count 3). They
were found not guilty on count’s 4 and 5 (unlawful
possession of arms and ammunition).
Record Volume 10 Page 800 line 18 to 801 line 11
30.2 On the morning of the incident Margaret Changisa and
Jimmy Motlousi were asleep when they heard the noise
shouting Police!, Police!, Police at plot 909. They heard
people making similar noise at plot 910.

24
30.3 The evidence of Margaret Changisa was that a number of
persons entered into their shack, she was not certain of the
number but estimated them to be five.
Record Volume 10, Page 730 lines 17- 20
30.4 She further testified that her boyfriend was ordered to face
the wall and not look at the assailants, she was told to close
her eyes and lie on the bed. She further said she was raped
by one man inside the shack. Another man pulled the first
man and also raped her and took her outside the shack. She
testified that outside the shack she was raped several times.
Record Volume 10, Page 731 lines 7 -10 and Page 731
lines 19-20
30.5 The witness Margaret Changisa testified that her boyfriend
was bleeding from his head and Jimmy Motlousi testified that
he was stabbed in the back.
Record Volume 10, Page 731 lines 25 -26 and Page 732
line 1-2
25
30.6 According to Margaret Changisa inside the shack there was
nothing providing light but she testified that outside there was
a Apollo light which was on. She saw accused 2 standing at
the doorway, accused 3 was also seen but she could not say
what he was doing. She testified that Mr Ntuli ( accused 4
)was standing near the fence.
Record Volume 10, Page 730 lines 21-26 and Page 731
lines 3-18
31. Household 2 (Counts 6 to 8 ) - Shack of N. Nkohla
31.1 The Applicants were convicted on housebreaking with intent
to rob and attempted robbery (count 6); rape (count 7) and
assault (count 8). Mr Ntuli (accused 4) conceded he was
correctly convicted on Counts 6 and 8.
Record Volume 10, Page 801 lines 12 to 25

26
31.2 Noloyiso Nkohla testified that on the morning of the incident
she was asleep around 01:15 when she heard the noise of
stones being thrown on the roof and a person calling out
Police! Police! Police! and demanding passes.
31.3 She testified that she looked through the window and saw a
person climbing over the fence at Twala’s premises, she
identified that person as Mr Ntuli (accused 4).
31.4 She further testified that she saw Mr Ntuli( accused 4) going
up to the kitchen door of the main house and shook it. She
further said about 5 youths forced entry into her shack, they
demanded money when she told them she did not have
money they stabbed her on her right thigh and on the back of
her right shoulder
Record Volume 10, Page 736 lines 8-12.

27
31.5 Accused 3 switched on the light inside the shack and
switched it off again.
Record Page 736 lines 13-15
31.6 She testified that she was raped in her shack at least three or
four times by persons who had gained entry into her shack.
She could not identify those who raped her, as her head was
covered with a blanket.
Record Volume 10, Pages 736 lines19-22
31.7 She said whilst she was being raped by one of the person’s,
the second one said “Get off and let me have a go”. She
could not say whether it was one person who raped her
several times or whether it was more than one person.
Record Volume 10, Pages 736 lines 23-26
31.8 She further testified that when she was outside, she noticed
Margaret Changisa being raped by one person (count 2) and
sjamboked by another one (count 3) and that when the group

28
were leaving plot 910 she said she saw Mr Tshabalala
(accused 6). She also identified Mr Tshabalala (accused 6) in
Court and also on the meeting that was held at plot 910. She
further identified them (accused 6 and 3) on the identification
parade. She further said when she return to the shack her
shack was ransacked but nothing was missing.
Record Volume 10, Pages 737 lines 9- 23
32. Household 3 (counts 9 to 11 - Shack of Miss DM & PN)
32.1 The Applicants were convicted on housebreaking with intent
to rob and robbery (count 9) and rape (counts 10 and 11).
Record Volume 10, Page 801 line 26 to 802 line 15
32.2 Doris Mthobi and her sister Palesa Ncumisa stayed at shack
2 plot 872 Umthambeka Section in Tembisa.
32.3 On the morning in question they were woken up by the noise
of footsteps on the roof of their shack, certain youths knock
on their shack saying they were Police and demanded entry

29
into the shack. She testified that she peeped through the
window of their shack and saw about 7 youths outside. They
forced entry into the shack but she was not certain as to how
many entered their shack but her sister Palesa said they
were about 5.
32.4 They demanded money but were told that there was no
money. Doris was instructed to switch on the electric light.
The light was switched off and on several times. She testified
that she was ordered to cover her head with a blanket but
she refused to comply with that instruction.
32.5 The youths found R24 -00 in the pocket of a gown. The
youths ransacked the shack and spilled her hair product all
over her blankets.They took her money and her wrist watch,
they attempted to take the fridge but failed. She testified that
one of the youths who was outside called those who were
still inside that police were around. As they were leaving they
30
struck the door with a certain object, being a sign that they
have been there.
32.6 One of the assailants wanted to have sexual intercourse with
her. She refused and a struggle ensued between her and
one of the youths. She overpowered him and another youth
assisted to overpower her and raped her. The youth who
raped her went outside later.
Record Volume 10, Page 741 lines 20 - 26.
32.7 She further testified that she saw accused 7 (Phetoe). She
called accused 7 several times asking him how can he do
such a thing but accused 7 did not respond but just laughed.
She testified that accused 7 was laying on her bed next to
her. She was not in a position to identify him as one of her
rapist.
Record Volume 10, Pages 742, lines 1- 9

31
32.8 Her sister, Palesa, was also raped by at least one man.
33. Household No 4 (Count 12-14 House M. Mangema & J Khumalo)
intent to rob and robbery (count 12), rape (count 13) and
malicious injury to property (count 14). Mr Ntuli (accused 4)
conceded he was correctly convicted on Counts 12 and 14.
33.2 Julius Khumalo was staying at shack number 1 on plot 872
umthambeka Section. His girlfriend Ester Mathapelo
Mangena, was present on the night in question as she used
to visit him from time to time. On the night of the incident they
went to sleep as usual, whilst they were asleep they were
disturbed by a knock on the door, according to Julius it was
about 02h30. He saw a group of young men outside the
shack.
32
Record Volume 10, Page 745 lines 5 - 20
33.3 On the identification parade he identified accused 5, Mr
Tshabalala (accused 6), and Mr Ntuli (accused 4).
Record Volume 10, Page 745 lines 25- 26 and Page
746 lines 1- 6
33.4 After the light was switched on Esther saw and heard Mr
Ntuli (accused 4) saying “Oh here are some goods”. She had
never seen Mr Ntuli (accused 4) before, she was adamant
that it was him and she said she was not making a mistake.
She identified him in Court and also in the identification
parade that was held at Ivory Park Police Station on 5
November 1998.
Record, Volume 10, Page 746 lines 19-25
33.5 Esther testified that she was raped by two men. Her head
was covered with a scarf during the incident.
Record, Volume 10, Page 747 lines 16 to 25

33
33.6 The articles that were robbed included a TV set, a video
recorder, camera, hair cutting machine, raincoat, socks,
watches and a radio system.
33.7 Julius also testified that a blanket and a duvet were set alight.
Record, Volume 10, Page 748 lines 1 to 6.
34. Household 5 – (count 15 to 16- the shack of Nosakhele Mtiti and
Spotose Mtiti)
intent to rob and robbery (count 15) and rape (count 16)
34.2 The witness Nosakhele Mtiti was together with her husband
on the night of the incident. Nosakhele was 7 months

34
pregnant, her pregnancy was visible. They were disturbed by
people calling Police!, Police ! and banging on the door. The
youths forced their entry into the shack, she estimated that
they were between 3- 6 and demanded money. The witness
and her husband told the intruders that they did not have
money but eventual they handed an amount of R50.00 to the
intruders. Both victims were forced to lie down on the bed
and their heads were covered with blankets.
34.3 Mrs Mtiti was raped by one of the intruders but others were
against that as she was pregnant, Both Mr. and Mrs. Mtiti
were unable to identify their attackers
Record Volume 10, pages 751 lines 23-26
35. Household 6 (Counts 17-20 - shack of B. Mpungose & Mr B
Ncube)
35
intent to rob and robbery (count 17), rape (count 18), and
assault with the intent to commit grievous bodily harm (Count
19). They were found not quilty on count 20 (pointing a fire-
arm). Mr Ntuli (accused 4) conceded he was correctly
convicted on Counts 17 and 19.
Record Volume 10, pages 803 line 25 to 804 line 17.
35.2 Bongekile Mpungose testified that they were staying at plot
908 Umthambeka Section with her boyfriend. On 20
September 1998 they were woken up by the noise of people
saying “Maak oop ons is Police”, she heard voices on the
shack next to her shack. The door of her shack was forced
open and a number of young men entered, but she could not
say how many, they switched on the light and smashed it.
35.3 Mr Ntuli (accused 4) wanted money and then others started
to assault her and her boyfriend.

36
Record Volume 10, Pages 753 line18- 21
35.4 She was struck on her thighs and forced to open her thighs.
She could not say how many entered the shack, but
confirmed that she was raped by more than one person, but
she was unable to say how many were there.
Record Volume, Page 753 line 25 to page 754 line 2
35.5 She testified that she and her boyfriend were assaulted by
being slapped and their heads and bodies were covered with
blankets.
Record Volume, Page 753 line 21 to 26
36. Household 7- (Count 21 shack of Nowelile Gigi)
36.1 The Applicants were convicted of attempted robbery (count
21).
37
Record Volume 10, page 804 lines 18-23
36.2 This witness was in her room at plot 910 on the night in
question when she heard people outside saying “Maak oop,
Maak oop”, she thought those people were the police. She
opened the door and about 3-5 people entered and
demanded money. When she saw that they were not the
police she managed to close the door. She was struck with
any unknown object, she could not identify any of those
people.
Record, Volume 10, Page 757 lines 1- 19
37. Household 8 (Counts 22 to 26 – Shack of Lucy Makgatho and Eric
Mdaka)
intent to rob and robbery (count 22), rape (count 23), assault
with the intent to commit grievously bodily harm (count 25)
and malicious injury to property (Count 26). They were found
not guilty on count 24 (assault). Mr Tshabalala (accused 6)

38
conceded he was correctly convicted on Counts 22, 23 (as
the physical perpetrator on a rape count), 25 and 26.
37.2 Lucy testified that she was sleeping with Eric. Early on the
morning of the 21 September 1998, they were woken up by
noise outside. They heard a knock on the door of their shack.
When they asked as who was knocking, the person outside
said they were police.
37.3 She further said they did not open the door but the door was
kicked open and the assailants came inside the shack. When
the assailants were inside the shack, they instructed them to
close their eyes and the assailants covered them with the
blankets over their heads. The assailants demanded money
and an identity document. This witness could not say as to
how many people entered into their shack.

39
37.4 This witness further testified that one of the assailant’s
instructed her to take off her panty. She did not do so and
one of the assailant’s removed her panty and he got on top
of her. Before the first one could do anything, the second one
got on top of the first one. She said one of the intruders told
her to hold his penis and insert it into her vagina, she
attempted but the first one could not obtain an erection.
Record Volume 10, Page 759 lines2- 6
37.5 The third assailant got on top of the second one, they asked
her if all three penises can be inserted into her vagina. She
said she did not know. Attempts to have the penisse’s of any
of these men inserted into her vagina did not succeed.

40
37.6 There were three men on top of her at that stage. One of the
other two on top of her made a comment that she was more
or less the same age as him, but she did not respond to that,
the other two got off her and took her outside.
Record Volume 10, Page 759 line 15- 18
37.7 When she went outside her face was covered with something
she was not certain whether it was a shirt or blouse.
37.8 The assailant ordered her to hold onto the door of the shack
next to her shack, that was shack no 2. As they were walking
outside, they were next to each other. This witness identified
that person as Mr Tshabalala (accused 6).
Record Volume 10, Page 760 lines 23 - 26

41
37.9 Mr Tshabalala (accused 6) instructed her to hold onto the
door of shack number 2 as the door was not locked in shack
number 2, she fell inside the shack. She testified that as she
was holding the door he was behind her lifting her dress on
the other hand holding his penis and wanted to insert his
penis into her vagina. She said the applicant pulled her up by
lifted her from her waist and instructed her to go with him to
the toilet, which is next to shack 1.
37.10 In the toilet she was instructed by Mr Tshabalala (accused 6)
to hold the toilet seat, he penetrated her from behind and
they changed position. She sat on the toilet seat and then he
kissed her and penetrated her from behind again.
37.11 She further testified that R30-00 and her boyfriend’s watch
were taken. Plates were also broken.

42
Record Volume 10, Page 760 lines 21 to 23
37.12 Her boyfriend was also assaulted with a blunt object and
burnt with a globe. A radio was also destroyed.
Record Volume 10, Page 762 lines 23 to 26.
38. Household 9 (Count 27- shack of Ms Twala)
intent to rob and robbery (count 27).
Record Volume 10, Page 806 lines 7 to 18.
38.2 Ms Khosaya Twala was asleep on the morning of 21
September 1998. She heard a similar noise as was the
situation with the other household people, shouting “police”
and demanding the door to be opened. About five or six

43
youths entered estimated ages 17 or 18. They ordered her
to give them money, she was forced to lie on her back. She
gave them R200.00 and they left.
Record Volume 10, page 765 line 25 to 766 line 11
H. SUMMARY
39. It is submitted on the totality of the evidence presented, inter alia,
set out above, that the only reasonable inference that can be
drawn is that the Applicants were part of a prior
conspiracy/agreement to commit the eight rapes.
40. Despite the fact that the Applicants were not identified as the
physical perpetrators (except in count 23 with regard to Mr
Tshabalala, accused 6) on the rape counts, they are guilty as
participants in the first format of common purpose (prior
conspiracy/agreement) as the conduct of each of them in the
execution of that purpose is imputed to the others.

44
I. CONCLUSION
41. It is therefore submitted that condonation be granted and that
leave to appeal be refused for both the Applicants.
SIGNED at JOHANNESBURG on THIS THE 11th DAY of JULY 2019
J J DU TOIT
K T NGUBANE
COUNSEL FOR THE RESPONDENT
GAUTENG LOCAL DIVISION, JOHANNESBURG

45
46
LIST OF AUTHORITIES
A. CASE LAW
1. S v Phetoe 2018(1) SACR 593 (SCA);
2. S v Jacobs and Another 2019(1) SACR 623 (CC);
3. General Council of the Bar of South Africa v Jiba and Others
[2019] ZACC 23;
4. S v Thebus and Another 2003 (2) SACR 319 (CC);
5. S v Makhubela and Another 2017 (2) SACR 665 (CC);
6. S v Moses 2010 JDR 0851 (NCK).
B. LEGISLATION
7. Article 25(3)(a) and (d) of the ICC Statute
C. BOOKS
8. Jurisprudence of the International Criminal Courts and the
European Court of Human Rights, Procedure and Evidence,
Vladimir Tochilovsky, Martin Nijhoff Publishers, 2009

47
9. The criminal responsibility of senior political and military leaders as
principals to international crimes, Hector Olasolo, Hart Publishing,
Oxford, and Portland, Oregon, 2009.
10. Snyman, Criminal law, Six edition.

Case Number: CCT 323/18 & CCT69/19
Ex SCA Case Number: 349/2009
Ex SGHC Case Number: 37/99
Case Number: CCT 323/18
and
THE STATE Respondent
COMMISSION FOR GENDER EQUALITY Amicus Curiae
CENTRE FOR APPLIED LEGAL STUDIES Amicus Curiae
and
CCT 69/19
In the matter of:
NTULI ANNANIUS
and
THE STATE
_____________________________________________________________
CENTRE FOR APPLIED LEGAL STUDIES’ WRITTEN SUBMISSIONS

_________________________________________________________
1
Contents
Introduction …………………………………………………………… 3–6
Condonation ………………………………………………………….. 6–7
Request to adduce new evidence ………………………………… 7 – 11
The nature and harm of rape being beyond penetration ……… 11 – 16
The patriarchal roots of the common law and the objectification or

’thingification’ of women
The victim-focused jurisprudence on sexual violence of the Consitutional

Court
Rape and the assertion of power
The arbitrariness of applying the common law doctrine of common

purpose to some chime but not others ……………………….. 16 – 20
Response to the Applicants’ – crimes of instrumentality
Instrumentality and arbitrariness
Laws which impose positive obligations on individuals in terms of

rape (and all other sexual offences) ………………………………… 20 – 23
The test and establishment of a prior agreement in gang-related crimes

…………………………………………………………………..………….. 23 – 31
The 'weighing up' of the rights of the accused versus those of the
complainant ……………………………………………………………... 31 – 35
Foreign jurisprudence around the doctrine of common purpose in

cases of rape (and all other sexual offences) …………………….. 35 – 40
Conclusion ……………………………………………………………….. 39 – 42
2
Introduction
1. Late on a Sunday night and early on a Monday morning in
September 1998, a group of young men rampaged through the
Umthambeka section of Thembisa. They forced entry into several
informal structures and once inside they assaulted, robbed and
raped the occupants.1 Mocumie JA in the SCA went on to state
‘that events of that night were aptly described by the full court as a
“reign of terror, an orgy of violence and pillage which included a
paralysis of fear, morbidity, hopelessness and a psychosis of
defenselessness” in the complainants’.2
2. The case of Phetoe v S forms the foundation of this case before
the above Honourable Court insofar as Tshabalala and Ntuli (‘the
Applicant’s) were part of the gang of young men that rampaged
through Thembisa that evening, and were thus similarly found
guilty with Phetoe, as co-perpetrators, in the commission of 8
rapes that evening.
1
Phetoe v S [2018] ZASCA 20; 2018 (1) SACR 593 (SCA) para 4. This was
confirmed as common cause.
2
Phetoe v S, para 21.
3
3. In Phetoe v S the SCA found that there was insufficient evidence
to show Phetoe had the intention to further the commission of the
crime (common law rape) committed by someone else (a
requirement of the doctrine of common purpose) and thus his
conviction and sentence was set aside.3
4. The questions on which the current appeal is based, and which
has been posed in relation to Phetoe v S, by the Honourable
Court, is whether the doctrine of common purpose is applicable to
the crime of common law rape and whether the SCA decision in
Phetoe v S was correct, and if correct, whether anything
distinguished the convictions the Applicant (Tshabalala at the time
and Ntuli) put in dispute from which his co-accused, Mr Phetoe,
was absolved?4
5. In relation to the above, the Applicants in this matter contend that
the doctrine of common purpose does not or should not apply to
the crime of common law rape. This is primarily based on the
argument that the doctrine as it stands cannot be applicable to a
crime based on instrumentality (also known as an autographic
crime, or a crime which cannot be committed through the agency
3
Phetoe v S, para 1 and 13
4
Directions Dated 13 February 2019.
4
of another individual).5 They further contend that the SCA was
correct in finding a lack of intention with regard to Pheteo to be
associated with the rapes. And that Tshabalala, who was found
present at two of the rape incidents, should on the remaining
counts be treated similarly to Phetoe, and have his convictions
and sentences set aside.6 It appears the Court is invited to accept
the same line of argument in the case of Mr Ntuli.
6. In response to the Applicants’ arguments, CALS argues that the
doctrine of common purpose is applicable to common law rape as
well as all other sexual offences, and is in fact constitutionally
required. 7 This position has been set out before in CALS’
Submissions to the above Honourable Court as per the directions
by the Chief Justice dated 13 February 2019. In these
submissions we recanvassed the principle issues and expand on
5
Applicants’ Written Submissions Pursuant to Directions issued by the Chief
Justice Dated 2 May 2019 page 16, para 49 and page 19, para 53. See also
Applicant’s Written Submission Pursuant to Directions Issued by Chief Justice
Dated 13 February 2019 para 3 – 8.
6
Applicant’s Written Submission Pursuant to Directions Issued by Chief Justice
Dated 13 February 2019, para 25 and 26
7
It must be noted that the question of the applicability of the doctrine of common
purpose to all other sexual offences is not currently before the court, yet CALS
argues it is in the best interest of victim’s of sexual violence, where these crimes
are recognised under Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007 (“SORMA”) or any other common law sexual offence
to similarly benefit from the application of the doctrine of common purpose to the
offences committed against them, if the facts support such.
5
the previous argument set out and/or respond to contention made
by the Applicants’.
7. In these submissions, CALS addresses the following issues in
turn:
7.1. The nature and harm of rape being beyond penetration;
7.2. The arbitrariness of applying the common purpose doctrine to
some crimes and not others;
7.3. Laws which impose positive obligations on individuals in
terms of rape (and all other sexual offences);
7.4. The test and establishment of a prior agreement in gang-
related crimes;
7.5. The ‘weighing up’ of the rights of the accused versus those of
the complainant;
7.6. Foreign jurisprudence around the doctrine of common
purpose in rape cases (and all other sexual offences).
Request for Condonation
8. CALS became aware of the above Honourable Court’s intention to
hear the above matter, after having received submissions from
6
various interested entities including CALS, on 2 May 2019 through
the Court’s Directions Dated 2 May 2019.
9. CALS subsequently sent out its letter requesting consent to be
admitted as an amicus curiae on 14 May 2019 and received
consent from both the Applicant and the Respondent on 15 May
2019, as well as by the other amicus curiae on 27 May 2019.
10. CALS ought to have lodged the letters of consent with the
Registrar of the Court on 22 May 2019, yet on approaching the
Registrar on 21 May 2019; CALS was informed that the letters
should rather accompany this application.
11. In relation thereto, we request condonation from the above
Honourable Court for the late lodging of said letters.
Request to adduce new evidence
12. In addition to making the legal submissions described above,
CALS seeks to adduce documentary evidence relating to
7
academic studies around the psychological experience of victims
of sexual violence, as well as the nature, pervasiveness and risk
factors associated with rape and other sexual violence crimes in
South Africa.
13. The documentary evidence will include the following studies:
13.1. Africa Check ‘FACTSHEET: South Africa’s crime statistics for
2017/18’ (2018). Available at
https://africacheck.org/factsheets/factsheet-south-africas-
crime-statistics-for-2017-18/.
13.2. G Cronje, PJ van der Walt, GM Retief & CMB Naudé The
Juvenile Delinquency in Society (1982).
13.3. Gastrow, P “Organised Crime in South Africa: An
Assessment of its Nature and Origins” Institute for Security
Studies (1998). Available at
https://oldsite.issafrica.org/uploads/Mono28.pdf
8
13.4. Machisa, M et al Rape Justice in South Africa (2017).
Available at http://www.mrc.ac.za/sites/default/files/files/2017-
10-30/RAPSSAreport.pdf.
13.5. Jewkes, R & Abrahams, N ‘The epidemiology of rape and
sexual coercion in South Africa: an overview’ Social Science
& Medicine (2002) 1231–1244. Available at
http://isssasa.org.za/resources/academic-articles/rape/rape-
in-ssm.pdf
14. Rule 31 of the Constitutional Court Rules, 2003 empowers this
Court to allow amici to introduce ‘documents lodged to canvas
factual material’. Notably, the documents must be relevant to the
determination of the issues before the Court, the material should
not already be on the Court record, and the material should be
common cause or otherwise incontrovertible or of an official,
scientific, technical or statistical nature capable of easy
verification.
15. In terms of the above CALS asserts the following in relation to the
evidence which it seeks to adduce:
9
15.1. The documentation CALS seeks to be admitted are directly
relevant to issues before this Court as they comprise of
academic studies around the psychological experience of
victims of sexual violence, as well as the nature,
pervasiveness and risk factors associated with rape and
other sexual violence crimes in South Africa, which needs to
be considered in decisions around law relating to sexual
violence.
15.2. None of the studies have been referred to by the Applicants,
Respondent or the other amicus curiae in this matter.
15.3. The material referred to are all either verifiable studies by
acknowledged research institutions or journal articles that
have undergone a peer-review process, which is the
accepted criteria for determining the reliability of information
produced by an academic author.
16. CALS further submits that section 22 of the Supreme Court Act
59 of 1959, sates that this Court may grant leave to a party to
10
adduce further evidence on appeal in exceptional circumstances
where it is in the interest of justice to do so and sufficient
explanation has been given for the failure to lead evidence before
the High Court. This principle finds support in the case of Tofa v
The State.8
17. On this premise CALS respectfully submits that the requirements
to adduce new evidence have been met in this case.
The nature and harm of rape as being beyond penetration
18. In deciding whether the doctrine of common purpose can apply
to common law rape the Applicants correctly state that common
law rape is “the (a) intentional (b) unlawful (c) sexual intercourse
with a woman (d) without her consent”9 yet assert that common
law rape is not an offence for which an individual can be found
guilty through the doctrine of common purpose. This is due to the
assertion that common law rape is an offence which is committed
8
Tofa v The State (20133/14) [2015] ZASCA 26 Unreported (20 March 2015) at
para 4.
9
Masiya v Director of Public Prosecutions Pretoria (The State) and Another
(CCT54/06) [2007] ZACC 9; 2007 (5) SA 30 (CC); 2007 (8) BCLR 827 para 26
(‘Masiya’). This is the applicable offence for rape prior to the advent of SORMA,
which has an expansive definition of rape (see section 3, SORMA).
11
through the instrumentality of a person’s own body. 10 The
instrument in this regard is the the male penis and the object
being the female vagina.
19. CALS asserts that this view does not reflect the true nature of
harm resulting from rape. This view is also unaligned with the
victim-focused jurisprudence of the above Honourable Court in
relation to the resultant harm of rape (and all other sexual
offences), which will be set out in more detail below.
The patriarchal roots of the common law and the objectification or
‘thingification’ of women
20. The focus on the individual’s body or body part (penis) as being
central to the definition of common law rape is based on the
patriarchal roots of the framing rape as an offence in our law. In
Masiya the above Honourable Court acknowledged these
discriminatory roots when it traced the offence’s history and stated
that “[t]he crime of rape in Roman law was based on a prohibition
of unchaste behaviour” and “[p]unishment of non-consensual
sexual intercourse protected the interests of the society in

10
Applicant Written Submissions, page 14 – 19, para 41 to 53.
12
penalising unchaste behaviour, rather than the interests of the
survivor”.11 This Court went on to state that during the period of
Roman law, “patriarchal societies criminalised rape to protect
property rights of men over women. The patriarchal structure of
families subjected women entirely to the guardianship of their
husbands and gave men a civil right not only over their spouses’
property, but also over their persons”.12
21. It can be seen from the above that women have been treated as
‘objects’ of rape where the interest being protected is not their
human rights (to dignity, equality, or security and safety of the
individual) but rather their chastity, or value as an object for their
male ‘owners’ (fathers or husbands). It is then unsurprising that
common law rape, which has its roots in patriarchal beginnings,
would treat rape as a crime concerning an instrument (a penis)
penetrating an object (a woman, and a vagina). This is an
extension of the objectification or ‘thingification’ of women.13
11
Masiya, para 20.
12
Masiya, para 21.
13
C, Adams The Pornography of Meat (2015), 21 – 22. Carol Adams explains
‘thingification’ as the process whereby a someone is seen as a something and
their uniqueness is deleted so that they can be viewed as an object and
subsequently harmed.
13
22. C R Snyman, whose conception14 the Applicants’ rely heavily
upon, explains the harm or problem of rape is that “[p]enile
penetration of the vagina may result in the woman’s becoming
pregnant… [where] the main or at least one of the main reasons
for criminalising rape is to protect the woman from becoming
pregnant without her will”.15 This conception of the harm of rape
on the individual is erroneous, misogenistic and out of kilter with
the values of the Constitution. The Applicants’ reliance on this
source to validate their view on common law rape lacks an
understanding true effect of rape on individuals. More than that it
does not give a true reflection of the law as indicated in the
submissions of CGE as friends of the court. 16
14
The Applicants’ rely on C R Snyman’s view of the autographic nature of
common law rape at page 16 para 49 of the Applicant Written Submissions and
para 3 – 4, page 2 – 3 of The Applicant’s Written Submissions Pursuant to
Directions Issued by the Chief Justice Dated 13 February 2019.
15
C R, Snyman Criminal Law (2008) 46.
16
In the unanimous judgment of the Supreme Court of Appeal in K v Minister of
Safety and Security, Scott JA made obiter comments which recognize that the
doctrine of common purpose is applicable to common law rape. He observed that:
“The conduct of all three policemen was not only wrongful, it was criminal from the
time they conspired to rape the appellant until the time the attack ended. Indeed,
the inference is overwhelming that the three policemen formed a common
intention to rape the appellant at some stage before the driver turned off the road
leading to the appellant's house and drove to the spot where all three raped her.
Each gave support to the others in committing the crime. If only one had physically
raped the appellant, all three could nonetheless have been convicted of rape.
They were at all times acting in pursuance of a common purpose.”
14
Rape and the assertion of power
23. Rape is the act of the need for power coupled with the assertion
thereof against a victim. The relationship between rape and power
must be considered when analysing whether the doctrine of
common purpose can be applied to common law rape.
24. The above Honourable Court in Masiya explained that the
historic definition of rape is one that concerns itself with “male

17
dominance and power” over women. This statement is
supported by studies such as the Medical Research Council’s
Rape Justice in South Africa where it was stated that “[r]ape is
predominantly an act of power or an accused’s domination over
the victim, although, obviously, it is a sexual act”.18
25. With reference to the above, it would be a misunderstanding of
the nature of rape, as an act of the assertion of power over an
17
Masiya, para 24.
18
M, Machisa et al Rape Justice in South Africa (2017), 18. Available at
https://www.wits.ac.za/media/wits-university/faculties-and-schools/commerce-
law-and-management/research-
entities/cals/documents/programmes/gender/RAPSSA%20REPORT%20FIN1%201
8072017.pdf.
15
individual, to characterise it simply as an act of a man inserting his
penis into a woman’s vagina without consent.
26. In essence, an act of rape can be performed by more than one
individual as long as the others have the intention to assert power
and dominance over the victim, where the vehicle to achieve this
violence then takes the form of rape (but could have taken the
form of numerous other serious sexual offences). Thus, all
individuals actively associated with the act and having the
required intention should be found equally guilty of the act of
domination which is rape.
The need for common purpose and the arbitrariness of applying
the doctrine of common purpose to some crimes but not
others
Response to the Applicants’ – crime of instrumentality submission
27. The Applicants contend that common purpose cannot apply to
any crime relating to instrumentality and state that CALS was
incorrect in its submission asserting that the crime of unlawful
16
possession of a firearm was in fact an instance of the doctrine of
common purpose being applied to a crime of instrumentality.19
28. The Applicant’s incorrectly assert that the above Honourable
Court has held that the doctrine of common purpose does not
apply to the unlawful possession of a firearm (an instance of
instrumentality) in the case of Makhubela v S, Matjeke v S. 20 On a
close reading of the case, it can be seen that this Court does not
state that the doctrine is not applicable to the unlawful possession
of a firearm (and was not asked to make such a determination)
and focused instead on the admissibility of out-of-court
statements.21
29. On the issue of the unlawful possession of a firearm the Court
had merely found that in this instance the accused persons had
not had the requisite intention to exercise possession of the
firearms on behalf of the group and thus common purpose could
19
Applicant Written Submissions page 15 – 16, para 46 – 47. Makhubela v S,
Matjeke v S (CCT216/15, CCT221/16) [2017] ZACC 36; 2017 (2) SACR 665 (CC);
2017 (12) BCLR 1510 (CC).
20
Applicant Written Submissions page 15 – 16, para 46 – 47. Makhubela v S,
Matjeke v S (CCT216/15, CCT221/16) [2017] ZACC 36; 2017 (2) SACR 665 (CC);
2017 (12) BCLR 1510 (CC).
21
Makhubela v S, Matjeke v S, para 29.
17
not be said to have existed.22 This was ultimately a question of
whether the accused had met the criteria set out in Nkosi and not
an invalidation of the principle’s applicability to this crime. 23
Instrumentality and arbitrariness
30. In reference to the above case of Makhubela v S, Matjeke v S
the above Honourable Court has acknowledged that the doctrine
of common purpose can apply to certain crimes requiring
instrumentality.
31. From this it follows that if common purpose can apply to unlawful
possession of a firearm (a crime of instrumentality) then common
purpose must apply to common law rape.24
32. In the alternative, should the above Honourable Court deem the
offence of common law rape to be narrowly defined as a crime
which is dependent on instrumentality to be committed, CALS
argues that even such similarly defined crimes requiring
instrumentality can and have been subject to the doctrine of

22
Makhubela v S, Matjeke v S, para 57.
23
S v Nkosi 1998 (1) SACR 284 (W) at 286H-I.
24
C R Snyman Criminal Law (2002) 266.
18
common purpose and it would be arbitrary and irrational not to
extend the principe to common law rape.
33. We submit that to exclude common law rape from such
application without justifiable reason (where no reason has been
given by the Applicants) would suffer the charge of being arbitrary.
34. The above Honourable Court has stated that arbitrariness
“inevitably, by its very nature, leads to the unequal treatment of
persons. Arbitrary action or decision making is incapable of
providing a rational explanation as to why similarly placed persons
are treated in a substantially different way. Without such a
rational justifying mechanism, unequal treatment must follow”.25
35. Excluding common law rape from the doctrine of common
purpose is an act of treating persons differently. In this instance it
would primarily be treating women differently, as 94,1% of the
victims of rape in South Africa are women.26 If this crime was not
25
S v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6)
BCLR 665 (CC) para 156.
26
The Medical Research Council of South Africa found that 94.1% of persons
raped in South Africa are women. M, Machisa et al Rape Justice in South Africa
(2017), 17. Available at https://www.wits.ac.za/media/wits-university/faculties-and-
schools/commerce-law-and-management/research-
19
common law rape but a different crime such as possession of an
unlawful firearm, the perpetrators could be charged and be found
guilty of the crime. No rational justifying mechanism can or has
been given for this different treatment and thus it must be seen as
arbitrary.
36. From the rationale in Levenstein it can then be said that all
sexual offences are seen by the above Honourable Court as
equally serious, and furthermore that the trauma they cause can
be equally harmful. This would be true whether there is unlawful,
penetration by a penis or a different form of sexual abuse (such as
sexual assault). Thus it would be irrational to assert that common
purpose does not apply to sexual offences, or that common
purpose can apply to some sexual offences but not common law
rape, due to its definition.
Laws which impose positive obligations on individuals in terms
of rape (and all other sexual offences)
entities/cals/documents/programmes/gender/RAPSSA%20REPORT%20FIN1%20
18072017.pdf.
20
37. A research report by Women’s Legal Centre and Rape Crisis
Cape Town Trust titled ‘Protecting Survivors of Sexual Offences:
The Legal Obligations of the State regarding sexual offences in
South Africa’, finds that there is an “inordinately high prevalence
of sexual violence against women and girls and wide spread
domestic violence”. Furthermore, such “violence appears to be
socially normalised, legitimised and accompanied by a culture of
silence and impunity” there is further thereto “low levels of
prosecution and conviction” which indicates a cause for concern.27
38. South Africa as a country saw a staggering 40 035 rapes in the
period 2017 – 2018 (in terms of the SORMA definition of rape). In
relation to the scruge of sexual violence in the country considered
with the vulnerability of the victims, CALS argues that a positive
obligation on the individual to act against sexual violence should
exist.28
39. We submit that although it is often held that South African
criminal law does not place obligations on individuals to act
27
Women’s Legal Centre and Rape Crisis Cape Town Trust Protecting Survivors
of sexual violence: The legal obligations of the state with regard to sexual offences
in South Africa (2013) page 12. Emphasis is our own.
28
Africa Check ‘FACTSHEET: South Africa’s crime statistics for 2017/18’ (11
September 2018). Available at https://africacheck.org/factsheets/factsheet-south-
africas-crime-statistics-for-2017-18/.
21
positively, other than where there is a duty to do so (such as a
parent to their child, a teacher to a learner, a policeman to an
individual seeking assistance), there are certain statutes which
require positive action by individuals with regard to survivors of
sexual violence.
40. Section 54 of SORMA for example states that any person who
has knowledge of a sexual offence committed against a child has
a duty to report such to a police official or to the Department of
Social Development. Failure to do so is a statutory offence in
terms of section 54(2)(b). Section 110 of the Children’s Act 38 of
2005 sets out that individuals holding certain professional
positions (such as teachers, medical practitioners and legal
practitioners) also have an obligation to report sexual violence
committed against a child.
41. This positive obligation we argue should, in fact, be extended to
a certain degree of action when witnessing a sexual violation of
females (not solely children). The mere inaction of an individuals
in cases like that of Phetoe, we submit should in fact be
considered as a failure to act in terms of that positive duty.
22
42. The approach of introducing a lower threshold for common
purpose when concerning cases of sexual violence entails a
balancing of both the right to fair trial as well as that of dignity,
equality and safety and security of the individual. This is, of
course, crucial in light of the vulnerability of certain groups, such
as women and girl children.
43. The need of positive, horizontal application of rights in the Bill of
Rights is not a novel one for example in the case of Daniels v
Scribante that there was no constitutional bar on the imposition of
a positive duty on a private individual.29
44. We therefore submit that the Court is well place to develop the
law to require a lower threshold in sexual violent crimes and infect
impose a positive obligation.
Development of the test applied in common purpose in gang
related sexual violent crimes (prior agreement and active
association)
29
Daniels v Scribante and Another (CCT50/16) [2017] ZACC 13; 2017 (4) SA 341
(CC); 2017 (8) BCLR 949 (CC).
23
45. We submit that the requirement of a prior agreement or active
association as set out in S v Mgedezi 30 should be further
developed in the cases of common law rape in terms of section
39(2) 31 of the Constitution to require a lower threshold in the
establishment or determination of prior agreement and active
participation in cases where sexual offences are committed by
groups and in particular by gangs.
The victim-focused jurisprudence on sexual violence of the
Constitutional Court
46. The above Honourable Court has previously held that rape must
be viewed through the lens of the significant harm it causes the
individual. In Masiya it stated that “[d]ue in no small part off the
work of women’s rights activists, there is wider acceptance that
rape is criminal because it affects the dignity and personal
integrity of women”.32
30
1989 (1) SA 678I – 706C.
31
When interpreting any legislation and when developing the common law or
customary law, every court, tribunal or forum must promote the spirit, purport and
objects of the Bill of Rights.
32
Masiya, para 28.
24
47. In Levenstein and Others v Estate of Late Sidney Lewis Frankel
and Others the above Honourable Court acknowledged the
intersection of violations of rape in so far as it also limits the
individual’s bodily integrity and psychological integrity. 33 This
Court stated that it “accepts that all sexual offences are equally
serious and that the harm they all cause is significantly serious”
and that “[s]exual offences may differ in form but the psychological
harm they all produce may be similar”.34 This Court went on to find
that due to the similarity of harm experienced by individuals who
have been sexually violated (irrespective of whether this was rape
or another sexual offence) it would be irrational for a prescription
period in terms of prosecution to lapse for some sexual offences
and not for rape and compelled rape.35
48. The idea that sexual offences may require a lower threshold of
action may be seen to have its basis in cases such as S v
Baloyi,36 and is thus not a novel one.
33
Levenstein and Others v Estate of Late Sidney Lewis Frankel and Others
(CCT170/17) [2018] ZACC 16; 2018 (8) BCLR 921 (CC); 2018 (2) SACR 283 (CC)
para 27 (‘Levenstein’).
34
Levenstein, para 3 and 59.
35
Levenstein, para 59.
36
S v Baloyi and Others (CCT29/99) [1999] ZACC 19; 2000 (1) BCLR 86 ; 2000
(2) SA 425 (CC) (‘Baloyi’).
25
49. We submit that the Court should adopt the approach considered
in the case of S v Nkosi37 whilst the facts are distinguished from
the instant. We submit the test as considered and the issue in
relation to the group must be decided with reference to the
question of whether the state has established the facts from which
it can be properly inferred by a court that the group had (a) the
intention to commit the common law rape crime and (b) the actual
detentors had the intention to carry out the crime on behalf of the
group. Only if both requirements are fulfilled joint liability involving
the group is attributed. We submit that this Honourable Court
ought to find that the requirements were met, and that common
purpose is applicable.
50. Furthermore, we submit that this gives this Honourable Court an
opportunity not to pass the constitutional muster of the doctrine
and bring some parity into our law in relation to the balancing of
the rights of the victims as enshrined in the Constitution against
those of the accused.
37
1998 (1) SACR 284 (W) at 286 H – I.
26
51. In the light of the facts of this case, it is important to note that the
common purpose doctrine as espoused in S v Mgedezi has been
pronounced by the Constitutional Court to be constitutional.38 The
most critical requirement of active association is to curb too wide a
liability. Current jurisprudence, premised on a proper application
of S v Mgedezi, makes it clear that (i) there must be a close
proximity in fact between the conduct considered to be active
association and the result; and (ii) such active association must be
significant and not a limited participation removed from the actual
execution of the crime.
52. We submit with respect, that the test set in Mgedezi is too
stringent when it comes to sexual violent crimes, and especially
gang related crimes. We submit, that the law should rather be
developed to protect women and children alike by creating a
positive duty which requires positive action at the face of sexual
violence. One would thus need to actively disassociate with the
commission of the crime.
53. The inclination of a certain members of our society to watch as
women and children are sexually violated either because they are
38
S v Thebus above.
27
not required by law, cannot continue if we hope to ever curb
sexual violent crimes. Sexual violence flourished in communities
which keep silent and do nothing. Silence is condonation of
interpersonal (family or community) violence.
54. We submit the lack of active association should no longer be an
adequate escape route in our law in the face of sexual offences.
A co-perpetrator cannot escape liability simply because all that
was proved is they may have laughed, regardless of the act of
complacency and the implications of the act of laughing during a
rape.
55. The Constitutional Court’s decision in Minister of Justice and
Constitutional Development & another v Masingili & Others 39
defines an accomplice as:
“An accomplice is someone whose actions do not satisfy all
the requirements for criminal liability in the definition of an
offence, but who nonetheless furthers the commission of a
crime by someone else who does comply with all the
requirements (the perpetrator). The intent required for
39
2014 (1) SACR 437 (CC) para 21.
28
accomplice liability is to further the specific crime committed
by the perpetrator”.40
56. Snyman,41 defines accomplice liability as follows:
“A person is guilty of a crime as an accomplice if, although he
does not satisfy all the requirements for liability contained in
the definition of the crime and although the conduct required
for a conviction is not imputed to him by virtue of the
principles relating to common purpose, he unlawfully and
intentionally engages in conduct which furthers the
commission of a crime by somebody else. The word
“furthers” above includes any conduct whereby a person
facilitates, assists or encourages the commission of a crime,
gives advice concerning its commission, orders its
commission or makes it possible for another to commit it”.42
57. Applying this position to the facts of Phetoe, one quickly notes
that the Supreme Court of Appeal held that the requirements for
40
Emphasis is our own.
41
C R Snyman Criminal Law 6 ed (2014) at 266.
42
Emphasis is our own.
29
accomplice liability had not been met and that to base such
liability on mere presence at a crime scene would not align with
principles of criminal law.43
58. We submit that because rape is a power crime (a crime
concerned with dominance and exertion of power). The mere
presence of large group of men in a room naturally adds to the
trauma and sense of powerlessness of the victim. We submit that
for an accused to escape liability under common purpose in
sexual offences they should actively distance themselves from the
actual crime, a mere inaction does not suffice.
59. We further submit one’s presence at a scene during sexual
violence (even in cases of inaction) forms an intent to act in
common purpose, because the person either has the direct
intention or at least reasonably foresees the inevitability of the
crime.
60. The Supreme Court compared the case of Phetoe with facts in S
v Kock en ’n ander44 where the appellant had stood guard with a

43
Phetoe para 15.
30
panga knife during the rape of the complainant. The court
observed that in the present matter, and stated the least that can
be said about the appellant’s conduct of laughing and doing
nothing to prevent the rapes, is that it was morally reprehensible.
61. We respectfully disagree with the view of the Supreme Court of
Appeal took in this regard.45 We submit the liability generating
from the mere presence during a rape does not differ or become
materially lessened purely because there was no knife, the knife
in itself is not what constituted the punishable conduct (the context
is more important). On this premise CALS submits the mere
presence, sitting on the bed and laughing or even standing guard
of the other gang members during the rape, while it may equal to
inaction, is not disassociation with the crime. Thus not being in
possession of a knife or another weapon does not make the Mr
Phetoe less guilty.
The 'weighing up' of the rights of the accused versus those of
the complainant
44
1988 (1) SA 37 (A).
45
Phetoe para 16.
31
62. In terms of the Constitution every individual has the right to
equality and this includes equality before the law as section 9(1)
reads that “[e]veryone is equal before the law and has the right to
equal protection and benefit of the law”. Furthermore every
accused person has the right to a fair trial as set out in section
35(3).
63. The question is whether having the doctrine of common purpose
apply to instances of common law rape would be an unjustifiable
limitation on the accused persons right to equality before the law
and/or a fair trial?
64. The same question can be asked in considering whether the law
ought to be developed the to create a positive obligations to act in
at the face of sexual violence?
65. CALS argues that even if the above Honourable Court does find
that there is a limitation on the accused person’s right to equality
before the law and/or fair trial, it is justifiable to do so when one
considers the vulnerability of the victims of sexual violence crimes.
32
66. Whilst it was held in S v Saffier 46 that rape (under the common
law definition) is committed by only one man who personally has
sexual intercourse with a woman in the absence of consent. The
court, however, noted a problem with the common law definition
which absolves an accused's liability from the crime of rape who
compels another to have sexual intercourse. The court further
noted that perhaps this was an issue which ought to be looked at
by the legislature. The notes by the court in fact show us that the
court acknowledged the difficulties posed by the instrumentality
argument, when it comes to of common law rape, insofar as it
exempts other categories of accused persons from liability, who
may have not committed the deed per se, but contributed towards
the commission of the crime and/or persons who did not exclude
themselves from the actions of the perpetrators.
67. The above Honourable Court has dealt with such perceived
limitations before in the matter of Baloyi.47 Although this was a
consideration of the constitutionality of section3(5) of the Family
Violence Act of 1993, where the Applicant contended that the
46
2003 (2) SACR 141 (SEC).
47
(2) SA 425 (CC), para 26.
33
provision of the act was unconstitutional in so far as it placed an
onus on him to disprove his guilt.48
68. Of specific importance was the statements by Sachs J which
focused on how law under the Constitution must have a right-
based perspective, which may come to challenge common law
principles such as onus to prove one’s ‘innocence’ and ask judges
to weigh-up the competing rights of individuals. Sachs J states
“The Constitution embodies many enduring common law
principles, especially those associated with personal freedom.
The Constitution also articulates, however, new values and
contains different emphases. As pointed out above, the
Constitution and South Africa’s international obligations
require effective measures to deal with the gross denial of
human rights resulting from pervasive domestic violence. At
the same time the Constitution insists that no-one should be
arbitrarily deprived of freedom or convicted without a fair trial.
The problem, then, is to find the interpretation of the text
which best fits the Constitution and balances the duty of the
48
(2) SA 425 (CC), para 1.
34
state to deal effectively with domestic violence with its duty to
guarantee accused persons the protection involved in a fair
trial”.49
69. Thus, CALS argues that if a right-based perspective is taken,
any limitation of the accused’s’ rights to either equality before the
law or fair trial is justifiable when one considers the rights of the
vulnerable individual in cases of sexual violence.
Foreign jurisprudence around the doctrine of common purpose
in cases of rape (and all other sexual offences)
70. The common purpose doctrine is not only found in South African
law, in this section we consider varying versions of the doctrine
and where our doctrine features comparatively.
71. Whilst we note that such foreign jurisprudence has no binding
effect on this Honourable Court, we do acknowledge that it should
in fact be considered when faced with developing the common law
in terms of s39 of the Consitution.
49
Baloyi, para 26
35
72. The origin of this doctrine is found in the English case of Macklin,
Murphy and Others50 where Judge Alderson stated:
“it is principle of law, that if several persons act together in
pursuance of a common intent, every act done in furtherance
of such intent by each of them is, in law done by all”
73. Later in the case of R v Swindall & Osborne51 where two cart
drivers participated in a race and a pedestrian was killed, it was
unknown which driver had driven the cart that caused the mortal
injuries. Since both drivers equally participated it was held to be
immaterial which driver was responsible for the death and were
held to be jointly liable.
74. Other common law jurisdiction like Australia and Canada have
essentially followed the English approach on the subject of
common purpose (or also known as joint enterprise). Both these
jurisdictions require that there must be a prior agreement followed
by soactions by all participants in the joint enterprise.
75. In Canada, section 21 (2) of the Canadian Criminal Code states

50
(1839) 2 Lewin 225 ER 1136.
51
(1846) 2 Car & K 230.
36
“where two or more persons form an intention in common to
carry out an unlawful purpose and to assist each other
therein and any one of them, in carrying out the common
purpose, commits an offence, each of them who knew or
ought to have known that the commission of the offence
would be a probable consequence of carrying out the
common purpose is a party to that offence”.
37
76. The English stance on negating actions to a conspiracy was
quoted in a Zambian decision in S v Beahan52. In R v Powell53
where Lord Steyn in his judgment stated that “if the law requires
proof of the specific intention on the part of the secondary party,
the utility of the accessory principle would be greatly undermined”.
77. In the case of R v Rook54 the court held that
“in the case of joint enterprise where both parties are present
at the scene of crime, it is not necessary for the prosecution
to show that a secondary party who lends assistance or
encouragement before the commission of the crime intended
for the victim to be killed, or to suffer serious injury provided it
was proved that he foresaw the event as a real or substantial
risk and nonetheless lent assistance.”
52
1992 (1) SACR 307 (ZS).
53
[1991]1 AC 1.
54
(1997) Cr App. R 327.
38
78. Ultimately many similarities abound between the South African
position of common purpose and other foreign jurisdiction. We
submit however, our form of liability accords with that of the
English version of joint enterprise, to which Judge Moseneke
relied upon in support of his decision in the case of Thebus and
Another v State55 and stated that the doctrine of common purpose
should apply across the crime divide. He states, “[c]ommon
purpose does not amount to an arbitrary deprivation of freedom.
The doctrine is rationally connected to the legitimate objective of
limiting and controlling joint criminal enterprise. It serves vital
purposes in our criminal justice system. Absent the rule of
common purpose, all but actual perpetrators of a crime and their
accomplices will be beyond the reach of our criminal justice
system, despite their unlawful and intentional participation in the
commission of the crime. Such an outcome would not accord with
the considerable societal distaste for crimes by common design.
Group, organised, or collaborative misdeeds strike more harshly
at the fabric of society and the rights of victims than crimes
perpetrated by individuals. Effective prosecution of crime is a
legitimate, 'pressing social need'. The need for 'a strong deterrent
to violent crime' is well acknowledged because 'widespread
55
CCT 36/02; [2003] ZACC12; 2003(6) SA 505 CC.
39
violent crime is deeply destructive of the fabric of our society'.
There is a real and pressing social concern about the high levels
of crime. In practice, joint criminal conduct often poses peculiar
difficulties of proof thereof the result of the conduct of each
accused, a problem which hardly arises in the case of an
individual accused person. Thus, there is no objection to this norm
of culpability even though it by passes the requirement of
causation.”
Conclusion
79. It is common cause that, Mr phetoe was at least present during
the rape which took place in the one shack where three
complainants were raped and he was aware of the assault as it
was inside the single room shack.
80. He showed common cause with the perpetrators, through the act
of laughing at the scene when asked why they were raping the
complainants; furthermore, he did nothing to dissociate himself
from the actions of the perpetrators;
40
81. He had the requisite mens rea, in that he must have witnessed
the events of the evening and must have foreseen the possibility
of the commission of at least more rapes after the first.
82. S v Phetoe forms the centre of this appeal. We note, that there
are distinguishable elements in the case of Phetoe, Tshabalala
and Ntuli. The Applicants’ case is different in that the question of
whether or not the trial court was correct in finding that there was
a prior agreement to the remaining seven counts of rape, has not
been settled. This is differentiated from Phetoe’s matter where it
was held by the Supreme Court that there was no prior agreement
proven, we of course disagree with the Supreme Court.
83. In light of the above and the incorrect finding of the Supreme
Court. We submit, the above Honourable Court ought to find that
the appellants, presence at the scene, their own conduct along
with the proven modus oporandi of the group be accepted as
proof beyond a reasonable doubt that the appellants had given
prior consent (although not verbally) and that their presence at the
various scenes of the crimes without active disassociation from
the crime, be accepted as proof that they had the necessary
41
intention or at least had reasonably foreseen the rapes were going
to take place and reconciled themselves with the harm.
84. In TRUE essence, we submit that an act of rape can be
performed by any individual if they have the intention to assert
power and dominance over the victim, wherein the vehicle used to
achieve this violence is in the form of rape. Individuals actively
failing to disassociate with the act, having the required intention
should be found equally guilty of the act of rape.
85. We verily believe the decision handed down by the SCA in
Phetoe was incorrect, and impress upon this court not to follow
the rationale but rather to develop the common law and enhance
the Courts jurisprudence on sexual violence and advance on the
laws protecting women’s and children’s rights to dignity, safety
and security.
86. CALS holds the view based on the above submission that the
doctrine of common purpose can and in fact must apply to
common law rape and sexual violent crimes at large. On this
premise we submit the appeal should be dismissed.
42
Lerato Phasha
Loyiso Mnqandi
Johannesburg
11 July 2019
43
List of Authorities
Legislation
Children’s Act 38 of 2005
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007
Prevention of Family Violence Act 133 of 1993
The Prevention of Organised Crime Act 121 of 1998
Case law
City Council of Pretoria v Walker (CCT8/97) [1998] ZACC 1; 1998 (2) SA
363; 1998 (3) BCLR 257
Daniels v Scribante and Another (CCT50/16) [2017] ZACC 13; 2017 (4)
SA 341 (CC); 2017 (8) BCLR 949 (CC)
Levenstein and Others v Estate of Late Sidney Lewis Frankel and Others
(CCT170/17) [2018] ZACC 16; 2018 (8) BCLR 921 (CC); 2018 (2) SACR
283 (CC)
Masiya v Director of Public Prosecutions Pretoria (The State) and
Another (CCT54/06) [2007] ZACC 9; 2007 (5) SA 30 (CC); 2007 (8)
BCLR 827
Makhubela v S, Matjeke v S (CCT216/15, CCT221/16) [2017] ZACC 36;
2017 (2) SACR 665 (CC); 2017 (12) BCLR 1510 (CC)
44
S v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC);
1995 (6) BCLR 665 (CC)
S v Mbuli 2003 (1) SACR 97 SCA
S v Nkosi 1998 (1) SACR 284 (W)
Phetoe v S 2018 (1) SACR (SCA)
Thebus and Another v State CCT 36/02; [2003] ZACC12; 2003(6) SA 505
CC
Foreign case law
Macklin, Murphy and Others (1839) 2 Lewin 225 ER 1136
S v Beahan 1992 (1) SACR 307 (ZS)
R v Powell [1991] 1 AC 1
R v Rook (1997) Cr App. R 327
R v Swindall & Osborne (1846) 2 Car & K 230
Journal Articles
R, Jewkes & N, Abrahams ‘The epidemiology of rape and sexual
coercion in South Africa: an overview’ Social Science & Medicine
(2002) 1231–1244
K, Phelps ‘A dangerous precedent indeed – a response to C R
Snyman’s not on Masiya’ SAJHR (2008) 648 – 658
45
Studies
M, Machisa et al Rape Justice in South Africa (2017). Available at
http://www.mrc.ac.za/sites/default/files/files/2017-10-
30/RAPSSAreport.pdf.
Books
C R Snyman Criminal Law (2008)
C R Snyman Criminal Law (2002)
46
Case No: CCT 323/18

SCA Case No: 349/2009
SGHC Case No: 37/99
In the matter of:
and
STATE
Respondent
THE COMMISSION FOR GENDER EQUALITY’S

WRITTEN SUBMISSIONS
TABLE OF CONTENTS
INTRODUCTION__________________________________________ 2
COMMON PURPOSE AND THE CRIME OF RAPE _______________ 2
(i) The true position in law _________________________________ 4
(ii) The instrumentality approach is artificial and unprincipled ______ 8
(iii) The State’s obligations to prevent gender-based violence_____ 16
(iv) Conclusion _________________________________________ 27
NEED FOR CLARIFICATION OF THE LEGAL POSITION ________ 27
1
INTRODUCTION
1. The Chief Justice issued directions on 13 February 2019 requesting
written submissions from the parties on two issues:
1.1. First, whether an accused can be convicted of common law rape
on the basis of common purpose; and
1.2. Second, whether the Supreme Court of Appeal decision in
Phetoe v S1 was correct and, if correct, whether there is
dispute from those which his co-accused, Mr Phetoe, was
absolved.
2. The Commission for Gender Equality (“the Commission”) has filed
an application seeking leave to be admitted as an amicus curiae in
this matter, in order to present written and oral argument. The
Commission limits its written submissions to the first question raised
in the Chief Justice’s Directions.
COMMON PURPOSE AND THE CRIME OF RAPE
3. The applicant contends that the doctrine of common purpose does
not apply to common law rape. In this regard, he relies on a line of
cases which have held that the doctrine does not apply to the
1
[2018] ZASCA 20; 2018 (1) SACR 593 (SCA).
2
perpetration of crimes for which a person’s own body (or part thereof)
is instrumental. As authority for this proposition, these cases cite the
following passage from Professor CR Snyman’s book:
“The common purpose doctrine cannot be applied to crimes that

can be committed only through the instrumentality of a person's
own body or part thereof, and not through the instrumentality of
another. Rape as well as certain other sexual offences such as
intercourse with a girl below the age of sixteen in contravention of
section 14 of the Sexual Offences Act 23 of 1957 are good
examples of such crimes. Thus if X rapes a woman while his
friend Z assists him by restraining the woman but without himself
having intercourse with her, Z is an accomplice, as opposed to a
co-perpetrator, to the rape. Possible further examples of crimes
that cannot be committed through the instrumentality of another
are perjury, bigamy and driving a vehicle under the influence of
liquor.”2 (emphasis added)
4. We refer to this approach as “the instrumentality approach”. In
what follows, we demonstrate that the instrumentality approach is
fatally flawed, for the following reasons:
4.1. First, it does not correctly reflect the law relating to common
purpose;
4.2. Second, the approach is artificial and unprincipled. It draws an
unsustainable distinction between crimes for which the body is
allegedly ‘instrumental’ and those for which the body is not;
2
C R Snyman, Criminal Law, 6th Ed (2014) at p 266 para [13]. The older judgments cite
earlier editions of this book.
3
4.3. Third, its effect is to carve out crimes of a sexual nature and to
exclude the application of common purpose to such crimes. This
inhibits the State’s ability to prevent and combat gender-based
violence, in accordance with its constitutional and international
obligations.
5. Despite clear precedent in the Appellate Division, which confirms the
applicability of the doctrine of common purpose to rape and similar
offences, the doctrine has been (and continues to be) inconsistently
applied by the lower courts. As a consequence, it is necessary (and in
the interests of justice) for this Court to make a clear pronouncement
on the question.
6. In the remainder of these submissions, we deal with each of the
above issues in turn.
(i) The true position in law
7. The instrumentality approach set out by Professor Snyman, and
adopted by various courts, does not reflect the true position in law.
When the authorities are considered, it is clear that the doctrine of
common purpose applies to the crime of rape and similar offences.
Two cases of the SCA and Appellate Division address this issue
directly:
4
7.1. In Rex v Mkwanazi and others,3 the Appellate Division found that
the three accused before it were guilty of assault with the intent
to rape, on the basis of common purpose. In this regard, the
following is relevant:
7.1.1. The three accused had been charged with rape. On the
evidence, it was clear that one of the three sexually
assaulted the complainant. However, it was not proved
which of the three actually committed the act. It was also
unclear whether the sexual assault amounted to rape or
assault with the intent to rape.
7.1.2. The trial court held that, on the evidence, it was not
possible to find beyond a reasonable doubt that all three
accused were criminally responsible for the sexual
assault on the basis of common purpose. This was due to
the fact that the object of the three accused had been to
rob the complainant and the sexual assault was an
unforeseeable act that was perpetrated by one of the
accused.
3
1948 (4) SA 686 (A).
5
7.1.3. The Appellate Division disagreed with the trial court.4
Although the initial object of the accused may have been
to rob the complainant, the court found that they had
changed their plan and applied themselves to assaulting
the complainant sexually. In this respect, the Court noted
that—
“Rape is not a crime that one of several robbers can

commit suddenly without his companions being able to
intervene to dissuade or prevent him. The least that
could be expected of any one of the accused who
realised that the crime of rape was about to be
committed and who wished to dissociate himself from
the act would be to run away himself at once. But the
evidence shows that although number one accused
was considerably ahead of the other two when they
were seen running from the scene, the interval was not
nearly so great as it would have been if he had run
away as soon as one of the other two began to rape
the complainant.”5
7.1.4. On this basis, the Appellate Division altered the trial
court’s verdict in regard to each of the accused to one of
guilty of assault with intent to rape.
4
It held that the trial court’s reasons for not finding the accused guilty of rape or assault with
the intent to commit rape were “not at all convincing”. Rex v Mkwanazi at 689.
5
Ibid at 690.
6
7.2. In the unanimous judgment of the Supreme Court of Appeal in K
v Minister of Safety and Security,6 Scott JA made obiter
comments which recognize that the doctrine of common purpose
is applicable to common law rape. He observed that:
“The conduct of all three policemen was not only wrongful, it

was criminal from the time they conspired to rape the
appellant until the time the attack ended. Indeed, the
inference is overwhelming that the three policemen formed a
common intention to rape the appellant at some stage before
the driver turned off the road leading to the appellant's house
and drove to the spot where all three raped her. Each gave
support to the others in committing the crime. If only one had
physically raped the appellant, all three could nonetheless
have been convicted of rape. They were at all times acting in
pursuance of a common purpose.”7
8. Therefore, on the ground of the existing authorities, an accused may
be convicted of common law rape on the basis of common purpose.
The authorities relied on by the applicant do nothing to gainsay this
position. In this regard—
8.1. The applicant relies on various High Court judgments which
have found that the doctrine of common purpose does not apply
to rape.8 However, at a High Court level the courts have
6
2005 (3) SA 179 (SCA).
7
Ibid at para 7.
8
The applicant refers specifically to the Full Court decision in Phetoe v S and the High Court
decision in S v Kimberly 2004 (2) SACR 38 (E) at para [15]. Notably, the latter decision was
7
diverged on this issue, with a number of judgments finding that
common purpose does indeed apply to the offence of rape.9 As
such, the cases cited by the applicant do not constitute settled
law.
8.2. In any event, the High Court cases relied upon by the applicant
are per incuriam as they fail to follow the binding precedent of
the Appellate Division (Mkwanazi). As such, they should be
disregarded.10
8.3. In addition, the Appellate Division and SCA cases referred to by
the applicant in its written submissions do not address the
question of whether common purpose applies to common law
rape.11 They do not advance the applicant’s case.
(ii) The instrumentality approach is artificial and unprincipled
9. The instrumentality approach draws a distinction between crimes that
can be committed only through the instrumentality of a person’s own
body (of part thereof) and those that can be committed by other
appealed to the Supreme Court of Appeal, which declined to comment or decide on the
question of whether common purpose applies to the crime of rape.
9
In this regard, see footnotes 51 and 52 below.
10
See, in this respect, Mkhize NO v Premier of the Province of KwaZulu-Natal and Others
(CCT285/17) [2018] ZACC 202 at para 63 – 64.
11
The applicant also relies on an obiter dictum from the Namibian Supreme Court case of S
v Gaseb 2001 JDR 0068 (NmS) at p 30. Notably, foreign law may be of persuasive value
when interpreting the Bill of Rights or when assessing the cogency of arguments. However,
such law does not form part of South African common law.
8
means. According to this approach, the doctrine of common purpose
applies to the latter category of crimes but not to the former.
10. This distinction is artificial and lacks any principled foundation. The
artificiality becomes plain when the court considers the crimes that
have been placed into the two categories.
10.1. Professor Snyman asserts that, on his approach, the common
purpose doctrine cannot apply to the following crimes: rape,
other sexual offences such as intercourse with a girl below the
age of sixteen, bigamy, perjury and driving a vehicle under the
influence of alcohol.
10.2. On the other hand, it is uncontroversial that the doctrine of
common purpose applies to the following crimes: assault,12
robbery,13 murder,14 malicious damage to property,15 possession
of a firearm16 and arson.17
12
S v Govender and Others 2004 (2) SACR 381 (SCA).
13
Dlamini v S 2012 (2) SACR 1 (SCA); S v Mambo and others 2006 (2) SACR 563 (SCA).
14
S v Musingadi and others 2005 (1) SACR 395 (SCA); S v Thebus 2003 (6) SA 505 (CC) at
para 34.
15
S v Thebus 2003 (6) SA 505 (CC) at para 34.
16
S v Nkosi, S v Khambule and S v Motsema 1998 1 SACR 284 (W); [2001] 3 ALL SA 274
(SCA) at 507E-F and 508B-C.
17
Ibid.
9
10.3. There is no clear or principled distinction between these crimes.
It is not clear why they fall into one category rather than the
other. For example, X may assault Y by beating Y with his fists.
He may go so far as to bludgeon Y to death with his fists or to
strangle Y with his hands. In certain circumstances, such
conduct constitutes assault or murder, respectively. Similarly, X
may use his feet to kick or smash Y’s property, committing
malicious damage to property. In all of these cases, X’s body is
instrumental to the commission of the crime. Yet, it is
uncontroversial that common purpose applies to these crimes. It
is unclear why these crimes are different from the crime of
sexual assault, perjury or driving under the influence.
10.4. The absurdity of the distinction is demonstrated by the new
Criminal Law (Sexual Offences and Related Matters)
Amendment Act18 (“the Sexual Offences Amendment Act” or
“the Act”). The Act expands the definition of rape to include any
act which causes the penetration by any object into the genital
organs or anus of another person. Under the instrumentality
approach, the doctrine of common purpose would not apply
when one person rapes another by penetrating them with their
18
32 of 2007.
10
genital organs. However, it would apply if the rape is committed
by penetrating the victim with an object (such as a bottle or
broomstick) i.e. not by use of the person’s body. There is no
principled reason for this distinction.
11. In addition, the underlying rationale for the common purpose doctrine
applies with equal force to rape and sexual assault as to murder and
robbery. The purpose of the doctrine was succinctly explained by
Moseneke J in S v Thebus:
“The doctrine is rationally connected to the legitimate objective of

limiting and controlling joint criminal enterprise. It serves vital
purposes in our criminal justice system. Absent the rule of
common purpose, all but actual perpetrators of a crime and their
accomplices will be beyond the reach of our criminal justice
system, despite their unlawful and intentional participation in the
commission of the crime. Such an outcome would not accord with
the considerable societal distaste for crimes by common design.
Group, organised or collaborative misdeeds strike more harshly at
the fabric of society and the rights of victims than crimes
perpetrated by individuals. Effective prosecution of crime is a
legitimate, 'pressing social need'. The need for 'a strong deterrent
to violent crime' is well acknowledged because 'widespread
violent crime is deeply destructive of the fabric of our society'.
There is a real and pressing social concern about the high levels
of crime. In practice, joint criminal conduct often poses peculiar
difficulties of proof of the result of the conduct of each accused, a
problem which hardly arises in the case of an individual accused
person. Thus, there is no objection to this norm of culpability even
though it by passes the requirement of causation.”19
19
S v Thebus at para 40. See also para 34, where Moseneke J states that:
11
12. This rationale clearly applies in relation to rape and sexual assault.
These crimes, when perpetrated by an organized or collaborating
group, strike more harshly at the fabric of society and the rights of
victims than instances where the crimes are perpetrated by an
individual. In addition, the effective prosecution of rape and sexual
assault is without doubt a “pressing social need” in South Africa,
where there are high rates of rape and sexual violence.20 There is a
need for a strong deterrent of such crimes. Therefore, upon
consideration of the principles underpinning the doctrine of common
purpose, there is no basis to distinguish rape and sexual assault from
other crimes.
13. Finally, the artificial and unprincipled nature of the instrumentality
approach is demonstrated by the decisions of international bodies
such as the International Criminal Tribunal for Rwanda (“ICTR”) and
“The principal object of the doctrine of common purpose is to criminalise collective

criminal conduct and thus to satisfy the social 'need to control crime committed in the
course of joint enterprises'. The phenomenon of serious crimes committed by
collective individuals, acting in concert, remains a significant societal scourge. In
consequence crimes such as murder, robbery, malicious damage to property and
arson, it is often difficult to prove that the act of each person or of a particular person
in the group contributed causally to the criminal result. Such a causal prerequisite for
liability would render nugatory and ineffectual the object of the criminal norm of
common purpose and make prosecution of collaborative criminal enterprises
intractable and ineffectual.”
20
See, for example, the Declaration of the Presidential Summit Against Gender Based
Violence and Femicide issued by the Presidency on 2 November 2018 (available online at
https://www.gov.za/speeches/declaration-presidential-summit-against-gender-based-
violence-and-femicide-2-nov-2018-0000), which describes the extent of gender-based
violence and femicide in South Africa as a “national crisis”.
12
the International Criminal Tribunal for the Former Yugoslavia
(“ICTY”). In this regard, two cases are pertinent:
13.1. The first is Prosecutor v Furundžija21, which was heard by the
ICTY.
13.1.1. In this case, Furundžija was a commander of the
Croatian Defence Council. He had been present in the
same room where his subordinate raped and physically
abused the victim. Although, Furundžija did not rape the
victim, he did administer physical abuse to her whilst his
subordinate raped. The Tribunal held that an accused’s
presence, approval and encouragement while his co-
accused is perpetrating a crime could lead to the
accused being found complicit in the crime being
committed.
13.1.2. The Tribunal held that a person can be held liable for
participating in the crime of rape, even when they made
no tangible contribution and only provided moral support
for the crime:
21
Prosecutor v Furundžija Case No.: IT-95-17/1-T, 10 December 1998 para 232.
http://www.icty.org/x/cases/furundzija/tjug/en/fur-tj981210e.pdf.
13
“On the issue of the nature of assistance rendered,
the German cases suggest that the assistance given
by an accomplice need not be tangible and can
consist of moral support in certain circumstances.
While any spectator can be said to be encouraging a
spectacle - an audience being a necessary element of
a spectacle - the spectator in these cases was only
found to be complicit if his status was such that his
presence had a significant legitimising or encouraging
effect on the principals”.22
13.1.3. The Tribunal went on the quote from the Tadić
judgment,23 holding that even when an accused had not
been directly been involved, they could still be found
liable for a crime.24
22
Prosecutor v Furundžija at para 232.
23
Prosecutor v. Tadić, Case No. IT-94-1-A, Judgment, 220 (July 15, 1999) para 220:
http://www.icty.org/x/cases/tadic/acjug/en/tad-aj990715e.pdf.
24
In this regard, Article 7(3) of the Statute of the ICTY is relevant. It provides that:
“The fact that any of the acts referred to in articles 2 to 5 of the present Statute was
committed by a subordinate does not relieve his superior of criminal responsibility if
he knew or had reason to know that the subordinate was about to commit such acts
or had done so and the superior failed to take the necessary and reasonable
measures to prevent such acts or to punish the perpetrators thereof.”
The acts referred to in Article 5 include rape that is committed in an armed conflict and is
carried out by the civilian population. This makes clear that the ICTY did not apply the
instrumentality approach to the crime of rape.
There are similar provisions in the Rome Statute of the International Criminal Court (Article
25) and the Stature for the ICTR (Article 6).
14
13.2. The second case is Prosecutor v. Édouard Karemera Mathieu
Ngirumpatse Joseph Nzirorera,25 which was heard by the
ICTR.
13.2.1. This case concerned Karemera and Ngirumpatse (the
accused) who were political leaders in Rwanda during
the Rwandan genocide.26 They were convicted of rape
as a crime against humanity; for rapes and sexual
assaults that were committed against Tutsi women
throughout Rwanda.27 As part of the attacks, a Hutu
paramilitary group and other militiamen raped Tutsi
women and girls. The accused were charged for these
rapes.28
13.2.2. The accused were found guilty for these rapes, even
though they were not direct participants in the crime of
rape. The Appeals Chamber found that the accused
were aware that rapes and sexual assaults on Tutsi
women were a possible consequence of the joint

25
Édouard Karemera Matthieu Ngirumpatse v. The prosecutor Case No: ICTR-98-44-A:
http://unictr.irmct.org/sites/unictr.org/files/case-documents/ictr-98-44/appeals-chamber-
judgements/en/140929.pdf
26
Ibid at para 2-3.
27
Ibid at para 7 and 587.
28
The Prosecutor v. Édouard Karemera Mathieu Ngirumpatse Joseph Nzirorera case No:
ICTR-98-44-I:http://unictr.irmct.org/sites/unictr.org/files/case-documents/ictr-98-
44/indictments/en/050223.pdf para 68.
15
criminal enterprise to pursue the destruction of the Tutsi
population in Rwanda. As a result, the accused incurred
joint criminal enterprise liability for the rapes and sexual
assaults.29
14. These cases show that the ICTY and ICTR applied the doctrine of
joint criminal enterprise (the equivalent of common purpose) to the
crime of rape. They do so on a principled basis. The ICTY expressly
recognised that a person may be held liable for rape under the
doctrine when their only contribution is to provide moral support or a
legitimising or encouraging effect on the principal perpetrators. The
same principle applies in South African law.30
(iii) The State’s obligations to prevent gender-based violence
15. The effect of the instrumentality approach is to carve out acts of rape
and sexual assault and to insulate them from the doctrine of common
purpose. This is objectionable for three reasons:
15.1. First, it undermines the State’s ability to control these crimes in
circumstances where they are committed by a group of
individuals, acting in concert. In the context of rape committed
by a group of people acting in concert, it is often difficult to

29
Édouard Karemera Matthieu Ngirumpatse v. The prosecutor (supra, n 26) at para 614.
30
To the extent that the judgments of the ICTY and ICTR are considered customary law,
they automatically form part of South African Law. See section 232 of the Constitution.
16
prove which person actually committed the act of sexual
penetration.31 It is also difficult to prove that the act of each
person or of a particular person in the group contributed
causally to the criminal result.32 Such a causal prerequisite for
liability would make prosecution of collective participation in
rape and sexual assault intractable and ineffectual.33
15.2. Second, it would allow persons who are guilty of morally
reprehensible and harmful conduct to escape liability. In S v
Thebus, this Court observed that, in a constitutional
democracy, making conduct criminal is intended to protect a
societal or public interest by criminal sanction. It follows, this
Court held, that criminal norms vary from society to society and
within a society from time to time, relative to community
convictions of what is harmful and worthy of punishment in the
context of its social, economic, ethical, religious and political
influences.34
31
See, for example, the facts of this case, where the victims were made to close their eyes
or cover their heads with blankets while they were raped. See also Rex v Mkwanazi and
others (supra n 3).
32
S v Thebus at para 34.
33
See the statements of Moseneke J in this regard in S v Thebus at para 34.
34
17
15.3. In South African society, there is a clear public interest in
making the participation in rape criminal. In this context,
conduct that is considered to be harmful and worthy of
punishment is not merely the act of sexual penetration or the
provision of direct assistance to the perpetrator. Rather, it
includes acts such as the provision of moral support to
perpetrators of rape during the course of the rape; or being
present at the scene of a rape (by one’s own volition) and
failing to intervene or assist the victim. Such conduct does not
fall with within the scope of direct perpetrator or accomplice
liability, yet it should attract criminal sanction. The doctrine of
common purpose allows for the imputation of liability to persons
who commit such acts. As Moseneke J recognised, absent the
rule of common purpose, “all but actual perpetrators of a crime
and their accomplices will be beyond the reach of our criminal
justice system, despite their unlawful and intentional
participation in the commission of the crime.”35
15.4. Third, by insulating sexual crimes from the application of the
common purpose doctrine, the law would create the impression
that these crimes are less serious or morally blameworthy than
35
18
other crimes (such as robbery, assault and murder). This is an
insult to the dignity of victims of rape and disregards the norms
of South African society. In addition, women are predominantly
the victims of sexual violence. By treating rape and sexual
assault as lesser crimes, the Court risks reinforcing unequal
gender-power dynamics and sexist attitudes towards women.36
16. In sum, the failure to apply the doctrine of common purpose to the
crime of rape and other sexual offences would undermine the State’s
ability to prosecute individuals who collectively commit these crimes,
while acting in concert. It would also fail to give effect to the social
and moral norms of South African society and to respect and protect
the dignity of the victims of rape.
17. Such an outcome is inconsistent with the State’s obligations under
domestic and international law to prevent sexual and gender-based
36
In this respect, the UN Special Rapporteur on Violence against Women, in her 2015
Report on South Africa (‘Report of the Special Rapporteur on violence against women, its
causes and consequences on her mission to South Africa’ A/HRC/32/42/Add.2), noted at
para 7 that:
"South Africa is still a young democracy, deeply influenced by its violent past
characterized by divisions of race, class and gender. The violence inherited from the
apartheid era still resonates profoundly in today's society, dominated by deeply
entrenched patriarchal norms and attitudes towards the role of women, which make
violence against women and children, especially in rural areas and informal settlements,
a way of life and an accepted social phenomenon. At the core of the pandemic of
violence against women lie unequal power-gender relations, patriarchy, homophobia,
sexism and other harmful discriminatory beliefs and practices.”
19
violence. In this respect, the State’s domestic obligations include the
following:
17.1. Section 7(2) of the Constitution obliges the State to respect,
protect, promote, and fulfil the rights in the Bill of Rights.37
17.2. The crimes of rape and sexual assault infringe upon the
victims’ constitutional rights to dignity (s 10); to be free from all
forms of violence from either public or private sources (s
12(1)(c));38 to bodily and psychological integrity (s 12(2)); and
not to be treated in a cruel, inhumane or degrading way (s
12(1)(e)).
17.3. The failure to apply the common purpose doctrine to rape and
sexual assault would inhibit the effective prosecution and
punishment of these crimes when they have been committed
by a group, acting in concert. In S v Baloyi, this Court pointed
out that where the criminal justice system was ineffective in
addressing a crime, this “intensifies the subordination and
37
This is not merely a negative obligation to act in a manner that would not infringe or
restrict a right. The Constitutional Court has held that the Constitution imposes a positive
obligation on the state and its organs to provide appropriate protection to everyone through
laws and structures designed to afford such protection. Head of Department, Department of
Education, Free State Province v Welkom High School and Others 2014 (2) SA 228 (CC)
para 84 citing Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA)
para 20.
38
Masiya v Director of Public Prosecutions Pretoria (the State) and Another 2007 (5) SA 30
(CC) at para 27.
20
helplessness of victims”. It also held that the failure to
effectively address certain forms of violence against women
“sends an unmistakable message to the whole of society that
the daily trauma of vast numbers of women counts for little”.39
17.4. In addition, the unprincipled application of the doctrine of
common purpose to some crimes (murder, robbery and
assault) but not others (rape and sexual assault) infringes upon
the right of victims of sexual violence to “equal protection and
benefit of the law” (section 9(1)). The differentiation between
the crimes is arbitrary (as is the differing degree of recognition
afforded to the victims). When considering the ineffectiveness
of the criminal justice system in addressing domestic violence,
this Court held that “the non-sexist society promised in the
foundational clauses of the Constitution, and the right to
equality and non-discrimination guaranteed by section 9, are
undermined when spouse-batterers enjoy impunity.”40 The
same occurs when persons who make common cause in rape
enjoy immunity.
39
S v Baloyi 2000 (2) SA 425 (CC) at para 12.
40
S v Baloyi at para 12.
21
18. South Africa has multiple binding international obligations to prevent
sexual and gender-based violence. These include obligations under
the following instruments:
18.1. First, the United Nations Convention on the Elimination of all
Forms of Violence Against Women (“CEDAW”).41 Under
CEDAW, state parties are obliged to:
18.1.1. Act to protect women against violence of any kind
occurring within the family, at the workplace or in any
other area of social life;42
18.1.2. Modify the social and cultural patterns of conduct of
men and women, with a view to achieving the
elimination of prejudices and all other practices which
are based on the idea of the inferiority or the superiority
of either of the sexes or on stereotyped roles for men.43
18.2. The CEDAW Committee (which was established in terms of
article 17 of CEDAW) releases recommendations that interpret
and aid the implementation of the CEDAW provisions.
41
South Africa signed the CEDAW on 29 January 1993 and ratified it on 15 December 1995.
42
Articles 2, 5, 11, 12 and 16. See also UN Committee on the Elimination of Discrimination
Against Women (CEDAW), CEDAW General Recommendation No. 12: Violence
against women, 1989, available at: http://www.refworld.org/docid/52d927444.html.
43
Article 5.
22
18.2.1. General Recommendation 19 deals with violence
against women.44 It notes that—
“[t]he effect of such violence on the physical and

mental integrity of women is to deprive them of the
equal enjoyment, exercise and knowledge of human
rights and fundamental freedoms [...] the underlying
consequences of these forms of gender-based
violence help to maintain women in subordinate
roles and contribute to their low level of political
participation and to their lower level of education,
skills.”45
18.2.2. General Recommendation 35, which updates General
Recommendation 19, was released in 2017.46 It
observes that the prohibition on gender-based violence
has become part of customary international law:
“For over 25 years, the practice of States parties has

endorsed the Committee's interpretation. The opinio
juris and State practice suggest that the prohibition
of gender-based violence against women has
evolved into a principle of customary
international law. general recommendation No. 19
has been a key catalyst for this process.”47
44
UN Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW
General Recommendation No. 19: Violence against women, 1992, available at:
https://www.refworld.org/docid/52d920c54.html
45
Ibid at para 11.
46
UN CEDAW Committee General recommendation No. 35 on gender-based violence
against women, updating general recommendation No. 19 (14 July 2017),
CEDAW/C/GC/35.
47
Ibid at para 2.
23
18.2.3. The Committee reiterated that States are “required to
have laws, institutions and a system in place to
address such violence.”30 If a state fails “to investigate,
prosecute and punish” gender based violence, they
provide “tacit permission or encouragement to acts of
gender-based violence against women.”48
18.3. The second source of binding international obligations is the
Protocol to the African Charter on Human and Peoples’ Rights
on the Rights of Women in Africa (“the Maputo Protocol”).49
The Protocol provides that:
18.3.1. Every woman shall have the right to dignity inherent in
a human being and to the recognition and protection of
her human and legal rights (Article 3(1));
18.3.2. States Parties shall adopt and implement appropriate
measures to prohibit any exploitation or degradation of
women (Article 3(3));
48
Ibid at para 24(b).
49
South Africa signed the Maputo Protocol on 16 March 2004 and ratified it on 17 December
2004. The Protocol is available online at [https://au.int/en/treaties/protocol-african-charter-
human-and-peoples-rights-rights-women-africa]
24
18.3.3. States Parties shall adopt and implement appropriate
measures to ensure the protection of every woman’s
right to respect for her dignity and protection of women
from all forms of violence, particularly sexual and
verbal violence (Article 3(4));
18.3.4. Every woman shall be entitled to respect for her life
and the integrity and security of her person. All forms of
exploitation, cruel, inhuman or degrading punishment
and treatment shall be prohibited (Article 4(1));
18.3.5. States Parties shall take appropriate and effective
measures to:
18.3.5.1. enact and enforce laws to prohibit all forms
of violence against women including unwanted
or forced sex whether the violence takes place
in private or public (Article 4(2)(a); and
18.3.5.2. adopt such other legislative, administrative,
social and economic measures as may be
necessary to ensure the prevention,
punishment and eradication of all forms of
violence against women (Article 4(2)(b));
25
18.3.6. States Parties shall prohibit and condemn all forms of
harmful practices which negatively affect the human
rights of women and which are contrary to recognised
international standards (Article 5); and
18.3.7. Women and men are equal before the law and shall
have the right to equal protection and benefit of the
law. States Parties shall take all appropriate measures
to ensure reform of existing discriminatory laws and
practices in order to promote and protect the rights of
women (Article 8(f)).
19. In Carmichele, this Court stressed the importance of South Africa’s
international law obligations to prevent gender-based violence. It held
that
“South Africa ... has a duty under international law to prohibit all
gender-based discrimination that has the effect or purpose of
impairing the enjoyment by women of fundamental rights and
freedoms and to take reasonable and appropriate measures to
prevent the violation of those rights.”50
20. As is explained above, the application of the common purpose
doctrine to the crime of rape and other sexual offences recognises
the dignity of victims, facilitates the effective punishment of such
50
Carmichele v Minister of Safety and Security [2001] ZACC 22; 2001 (4) SA 938 (CC) at
para 62. See also S v Baloyi (supra n 39) at para 13.
26
crimes and creates a deterrent. Ultimately, this places the State in a
better position to protect women against gender-based sexual
violence and its consequences. Any attempt to insulate sexual
offences from the doctrine of common purpose is, therefore, contrary
to the State’s constitutional and international law obligations.
(iv) Conclusion
21. The approach suggested by the applicant (the instrumentality
approach) is without merit. It does not reflect the true position in law.
Nor is it sustainable in principle. There is no principled (or practical)
reason for holding that an accused person cannot be convicted of
common law rape on the basis of common purpose. Indeed, doing so
would fall short of the State’s constitutional and international
obligations.
NEED FOR CLARIFICATION OF THE LEGAL POSITION
22. The Commission submits that it is necessary for this Court to make
a pronouncement on the correct position in the law. Specifically, this
Court should make clear that the doctrine of common purpose does
apply to rape and other sexual offences. The reasons are threefold:
22.1. First, despite the precedent in Rex v Mkwanazi, the doctrine of
common purpose has been inconsistently applied by the lower
27
courts. In a number of matters, the High Court has held that the
doctrine does not apply to common law rape. In doing so, the
courts have relied on the passage from Professor Snyman’s
Criminal Law, set out above.51 In other cases, the High Court
has found that the doctrine of common purpose does apply to
rape and has convicted the accused on that basis.52 This lack
of consistency undermines certainty, leads to unequal
treatment of accused persons and victims, and is contrary to
the principle of legality.
22.2. Second, although the common law crime of rape has been
repealed and replaced by the statutory crime set out the Sexual
Offences Amendment Act, the applicability of common purpose
51
See S v Jaars 2018 JDR 1026 (GJ) at para 77-78; S v Kholosa and Another (Full Bench of
the Eastern Cape Division of the High Court, Grahamstown) [Unreported case no:
CA183/2010]; Jacobs v S (A684/2007) [2008] ZAWCHC 331. Other courts have
commented, obiter, that the doctrine of common purpose does not apply to rape. See, in this
regard, S v Maqala 2017 JDR 1992 (ECB) at para 30; and S v Everts 2011 JDR 0698
(WCC) at para 14 and 23.
52
See S v Sebogo 2018 JDR 2212 (GJ) at paras 1, 20, 21, 24 (the accused in question was
convicted of four counts of rape. Two of these counts were for rape that was committed by
the accused and two were for the rape that committed by an unknown suspect who had not
been apprehended); S v Luzipho 2017 JDR 0007 (ECG) at para 26 - 27 (the High Court
dismissed the appellant’s appeal against his conviction for rape on the basis of common
purpose); Other courts have commented, obiter, that the doctrine of common purpose does
indeed apply to rape. See, in this regard, S v Mofokeng 2016 JDR 0840 (FB) at para 6; S v
Miller 2017 JDR 1773 (WCC) at para 290, where the High Court held:
“In my view there can be no principal objection to applying the doctrine of common
purpose to establish liability under a predicate offence. One need only think of the
type of gang-related activities which are routinely prosecuted under POCA, for
example, murder, rape and robbery, in which it could hardly be claimed that the
doctrine of common purpose could not be used to establish the liability of an
individual gang member in relation to crimes committed by the collective.”
28
to common law rape remains a live issue. As is clear from this
case, persons convicted of common law rape on the basis of
common purpose may in the future seek to appeal their
convictions. In addition, it remains a live issue for persons who
are accused of having committed common law rape before
2007, but who have yet to be charged and tried for the
offence.53
22.3. Third, the lower courts have applied the instrumentality
approach to the statutory crime of rape under the Sexual
Offences Amendment Act. In S v Jaars,54 the High Court noted
that, under both the common law and the Sexual Offences
Amendment Act, the offence of rape is a crime that can only be
committed by the instrumentality of a person’s own body. The
Court quoted the passage from Professor Snyman’s book and,
on that ground, found that the doctrine of common purpose
does not apply to rape.55
53
See, in this respect, S and Another v Acting Regional Magistrate, Boksburg: Venter and
Another 2011 (2) SACR 274 (CC) at para 19 -20. In Levenstein and Others v Estate of the
Late Sidney Lewis Frankel and Others 2018 ZACC 16 at para 42 – 45, this Court confirms
that prescription does not apply to the crime of rape.
54
2018 JDR 1026 (GJ).
55
Ibid at para 76 – 78. See also S v Mgxeke 2013 JDR 2161 (ECG) at para 14, where the
Court held:
“In these circumstances I think that it must be accepted that it has not been proved
that the appellant committed an act of sexual penetration with the complainant as
envisaged by section 3 of the Sexual Offences Act. Rape is an offence which can
29
22.4. If this Court finds that common purpose applies to common law
rape, the finding will be equally applicable to the crime of rape
under the Sexual Offences Amendment Act. There is no reason
in law or in principle why the doctrine would not be equally
applicable to common law and statutory crimes.56 As a
consequence, this Court’s pronouncement on this question will
have significant precedential value for all cases that are
brought in future against persons accused of rape or other
offences under the Sexual Offences Amendment Act on the
basis of common purpose.
23. In light of the above, it is in the interests of justice that the Court
consider and expressly pronounce on this question.
ANTON KATZ SC
EMMA WEBBER
JANE BLOMKAMP
Chambers, Johannesburg and Cape Town
29 March 2019
only be committed through the instrumentality of the body of the perpetrator… The
conviction of rape in contravention of section 3 of the Sexual Offences Act can
therefore not be sustained.”
56
S v Miller 2017 (supra n 52) at para 290,
30

Tshabalala V S Ntuli Head of Arguement

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1

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CASE NUMBER: CCT 323/18

Ex SCA Case Number 349/2009

Ex SGHC Case Number :37/99

In the matter of:

TSHABALALA, JABULANE ALPHEUS Applicant

APPLICANT’S WRITTEN SUBMISSSIONS PURSUANT TO DIRECTIONS ISSUED

1. On 12 December 2018 the applicant launched an application to the

above Honourable Court seeking an order in the following terms:

(leave to appeal) be set aside;

imprisonment on Seven counts of rape as well as various counts of

housebreaking with intent to rob and robbery be and hereby be

2. On 13 February 2019 the Chief Justice issued the following directions

address the following issues:

2.1 whether an accused can be convicted of common law rape on the

basis of common purpose; and

accused, Phethoe v S1 was correct, and, if correct, whether there is

anything to distinguish the convictions that the applicant puts in

dispute from those of which his co-accused, Mr Phetoe, was absolved.

(a) whether an accused can be convicted of common law rape on

the basis of common purpose.

and Related Matters) Amendment 2, Rape in terms of common law as it

then was defined consisted of a male having unlawful and intentional

sexual intercourse with a female person without her consent. The

imputation to common purpose does not operate in respect of charges

which have been committed only through the instrumentality of a

person’s own body or part thereof or which is generally of such a

nature that it cannot be committed through the instrumentality of

another. See Criminal Law by CR Snyman3

4. In S v Kimberley and Another4 Erasmus J says: “Snyman (op cit at

to crimes that cannot be committed through the instrumentality of

another; in other words, which can only be committed by means of a

person’s own body or part thereof. He states that rape, as well as

are examples of such crimes. He furnishes further examples, viz

perjury, bigamy and driving under the influence of liquor. I could

mention many other instances, eg all offences relating to acts which

require a person permit or licence, or that can be performed only by a

person of a particular status, such as a prisoner or an insolvent. The

common-law doctrine of common purpose cannot be invoked n such

5. As the common law rape involves sexual intercourse with a female

without her consent, it was therefore incumbent on the state to prove

this essential element beyond reasonable doubt in order to sustain a

conviction on rape. In S v Uithaler6 it was held that the court had

misdirected itself in sentencing the appellant on the basis that he had

committed two rapes.

6. In the instant case, for the applicant to be liable as accomplice to rape,

for liability in terms of the principles relating to common purpose, but

who nevertheless unlawfully and intentionally furthers its commission

by somebody else. He consciously associates himself with the

commission of the crime by assisting the perpetrator/s or by giving

them advice or supply them with the information or by offering them

opportunity of or means to commit the crime or facilitates its

commission. See S v Williams7 ; S v Maxaba8

having sexual intercourse with her, then he becomes an accomplice to

rape and may be convicted of rape as an accomplice. See R v

Mbande and others9; S v Khoza10; S v Saffier11

7. The appellant was charged and convicted of common law rape.

8. It is respectfully submitted that in the Full Court decision (which was

appealed in Phetoe v S in the SCA) correctly held (at Paragraph [13])

that common law rape by definition cannot be committed by or through

the physical instrumentality or agency of another person predicated on

the principle of common purpose, because common law rape is an