Exam (elaborations)
LJU4801 ASSIGNMENT 01 SEMESTER 2 OF 2022
- Institution
- University Of South Africa (Unisa)
LEGAL PHILISPHY ASSIGNEMNT 01 FOR SEMESTER 2 (2022)
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LEGAL PHILISOPHY (LJU4801)ASSIGNMENT 01
SEMESTER 02
2022
DUE: 26 AUGUST 2022
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Question 1
1. Read the case of S v Tshabalala. Briefly summarize the case. [6]
2. Critical Gender Theorists argue that society is not organised in a rational way,
but instead that men are regarded as the measure of what equality looks like.
Critical Gender Theory tries to undermine this seemingly rational idea by
pointing out the ways in which women are oppressed.
Mary Joe Frug utilizes a critical analysis to highlight problems with rape and
prostitution in law, arguing that the law “encodes” the female body with
meaning. Apply the court’s judgment and reasoning in S v Tshabalala to
explain how the outcome of the case presents a positive response to what Mary
Joe Frug refers to as the legal terrorisation of the female body and the legal
sexualisation of the female body. [6]
, 3. Summarise the court’s engagement with feminist legal theory in S v
Tshabalala. [8]
TOTAL:
[20]
Facts
A group of young men gathered at night, in September 1998, with intentions to impose fear
on the Thembisa community. The group wanted to vandalize, assault and rape, and they
agreed on this prior to the act. They frightened the community by robbing, ransacking , looting
and assaulting a few members of community. Moreover, this meeting of the mentioned young
men resulted in the gang raping of a 8 women including a pregnant woman and a 14 year old
girl. Mr Tshabala , Mr Ntuli and Mr. Phetoe were convicted.1
Legal Issues
Does the doctrine of common purpose apply to the common law sexual crime of rape?2
Is there a distinction between the common law crime of Rape and any other common law
crime where the doctrine applies?3
Arguments
Applicant
The applicants argued that the doctrine of common purpose could not be applied to rape, as
one a requirement for rape is the unlawful insertion of the male sexual organ into the female
sexual organ. Therefore, it isn’t equally reasonable to charge an accomplice. Moreover, the
applicants submitted that Mr Phetoe’s successful appeal should also be applied to them.4
_____________________________
1
Tshabalala v The State; Ntuli v The State [2019] ZACC 48 at para 5.
2
Tshabalala v The State; Ntuli v The State [2019] ZACC 48 at para 2.
3
Tshabalala v The State; Ntuli v The State [2019] ZACC 48 at para 2.
4 Tshabalala v The State; Ntuli v The State [2019] ZACC 48 at para 13.
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