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the doctrine of common purpose to the common law crime of rape
the high court of south africa
female body and the legal sexual
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University of South Africa (Unisa)
LJU4801 - Legal Philosophy (LJU4801)
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NAME:
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,ACADEMIC DECLARATION OF HONESTY
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1. I understand what academic dishonesty entails and am aware of UNISA’s
policies in this regard.
2. I declare that this assignment is my own, original work. Where I have used
someone else’s work I have indicated this by using the prescribed style of
referencing.
3. Every contribution to, and quotation in this assignment from the work or
works of other people has been referenced according to this style. I have not
allowed, and will not allow, anyone to copy my work with the intention of
passing it off as his or her own work. I did not make use of another student’s
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NAME:
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MODULE CODE: LJU4801
DATE:
, Question 1.
Tshabalala v The State; Ntuli v The State 2020 (3) BCLR 307 (CC).
Facts of the case.
This is a case involving a number of households who were robbed of their personal
belongings, occupants were attacked and a number of women was raped. The
youngest victim of these crimes was 14 years old and another victim was a woman
visibly pregnant. This did not deter a group from committing these crimes. This matter
was brought to the High court on a charge of common purpose doctrine. The court had
to deal with the application concerning the proper application of the doctrine of common
purpose to the common law crime of rape. 1 The applicants’ challenge was that under
the common law, the crime of rape is an instrumentality offence which, by its nature,
can only be committed by a male using his own genitalia, and not by an individual who
is merely present when the offence is committed and by his conduct (through his
association or active participation) either promotes, encourages or facilitates the
successful commission of the offence. The High Court of South Africa, Gauteng
Division, Johannesburg, disagreed] with the applicants’ argument and convicted them
together with the other co-accused of various charges, including the common law crime
of rape on the basis of the application of the doctrine.
1
Tshabalala v The State; Ntuli v The State 2020 (3) BCLR 307 (CC).
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