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- University Of South Africa (Unisa)
Legal philosophy assignment 2022
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UNISALJU4801
ASSIGNMENT 1
SEMESTER 2
2022
LEGAL PHILOSOPHY
[Author name]
8-26-2022
, LJU4801
Student Name:
Student Number:
Module Code: LJU4801
Unique Number: 667070
Due date: 26 August 2022
QUESTION 1.
Facts of the case
A group of young men went on a rampage in Umthambeka section of Tembisa, one of the
townships in the Gauteng Province on 20 September 1998. The group terrorized the
community by ransacking, looting and in one case stabbed one of the dwellers of the
informal settlement. The violence included the rape of eight female occupants, some of
whom were raped repeatedly, by several members of the group. The youngest was 14 years
of age. They were apprehended and charged weeks after their spree of terror.
They were brought before the High Court and were on 23 November 1999, Mr Tshabalala,
Mr Ntuli, and the other co-accused were found guilty of eight counts of rape respectively,
seven of which were imposed on the basis of the application of the doctrine of common
purpose. They were effectively convicted and sentenced to life imprisonment.
Both Mr Tshabalala and Mr Ntuli sought leave to appeal from the High Court on at least two
occasions without success. Both were 11 May 2000 and 26 August 2009 respectively.
In November 2012, one of the co-accused Mr Phetoe was granted leave to appeal his
conviction and sentence to the Full Court of the High Court. The Full Court held that the
doctrine of common purpose cannot be applied to crimes that can be committed only
through the instrumentality of a person’s own body.
Therefore, the doctrine could not apply to the common law crime of rape. Consequently, the
Full Court altered his conviction to one of being an accomplice in respect of the common law
crime of rape. Dissatisfied with this outcome, Mr Phetoe applied for and was granted special
leave to appeal to the Supreme Court of Appeal. Dissatisfied with the outcome of one of their
co-accused, the applicants applied to the Constitutional court for leave to appeal.1
Legal questions
The issues before the Constitutional Court were:
1. Whether the doctrine of common purpose applies to the common law crime of rape
and, if not.2
2. Whether there is any rational basis for a distinction between the common law crime
of rape and other crimes where the doctrine applies. 3
1
Tshabalala v The State; Ntuli v The State [2019] ZACC 48 para 8-16.
2
Tshabalala v The State; Ntuli v The State [2019] ZACC 48 para 2.
3
Tshabalala v The State; Ntuli v The State [2019] ZACC 48 para 2.
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