- S V Tshabalala; and S V Ntuli CCT 323/18 and CCT 69/19 (11 December 2019) (CC)
On 20 September 1998 (more than 20 years ago and while common law rape was still in operation) a group of young men - the two accused persons Mr Tshabalala and Mr Ntuli, together with their co-accused - went on a rampage in the Umthambeka section of the township of Tembisa in Gauteng. The men broke into houses and caused malicious damage to property. The terror that poured out onto this community was well-orchestrated and meticulously calculated and during all this, the men raped eight women occupants. Some of the women were raped repeatedly by members of the group. The youngest victim was a 14-year-old girl. While some of the men raped the women, the others stood as look-outs.
In the weeks that followed, the members of the group were apprehended and charged and on 13 August 1999, they were brought before the High Court in Johannesburg (“the trial court”). After a lengthy trial, the trial court convicted the men involved of seven counts of housebreaking with the intention to rob, eight counts of common law rape, four counts of assault with intent to do grievous bodily harm, one count of common assault, two counts of malicious damage to property, and one count of attempted robbery. Of the eight counts of common law rape, seven were on the basis of the doctrine of common purpose (Afrikaans: “gemeenskaplike oogmerkleerstuk”). The trial court held that a common purpose must have been formed before the attacks began and that the rapes were executed pursuant to a prior agreement in furtherance of the common purpose.