Gang rapists challenge common purpose convictions
Publish date: 10 June 2019
Issue Number: 827
Diary: IBA Legalbrief Africa
Category: South Africa
Two men serving life terms for gang rapes in 1998 have launched an application aimed at forcing the state to expunge laws that allow conviction of those present at rape scenes. The Star reports Jabulane Tshabalala and Annanius Ntuli were found guilty of multiple counts of common law rape after being part of a group of youngsters who went on a rampage in Tembisa. Along with four others, they were handed life sentences for the rape convictions. Tshabalala and Ntuli have turned to the Constitutional Court to argue that their conviction on most of their common rape counts was incorrect. They have been emboldened by the victory of Ledwaba Phetoe, who was one of their co-accused. The SCA set aside all his convictions of rape last year. Judge Baratang Mocumie ruled that he should not have been found guilty of common rape because it was not proved that he was aware of what his accomplices were doing in other households during the rampage. Tshabalala is seeking his freedom on grounds that his matter was similar to that of Phetoe. ‘The High Court convicted me, Phetoe and others of common law rape based on the doctrine of common purpose,’ he said in his papers. The full court altered the convictions of Phetoe from rape to that of being an accomplice to rape, and the SCA set aside all his convictions of rape.’ Tshabalala said just like Phetoe, he was convicted of rapes – although there was no evidence against him. ‘At least on seven charges of rape, I was convicted based on the incorrect interpretation of the doctrine of common purpose, whereby there was no evidence that I participated in the rape of all the complainants.’ Tshabalala said he should have been convicted of one rape.