STUDENT NO: 62789600
MODULE CODE: LJU4801
ASSIGNMENT NO: 01
DUE DATE: 26 AUGUST 2022
1. S v Tshabalala case summary.
Facts of the case
The High Court convicted the applicants together with their co-accused of various
charges including the common law crime of rape on the basis of common purpose, On
Wednesday, 11 December 2019 at 10h00.1 This application concerned the proper
application of the doctrine of common purpose to the common law crime of rape. A
group of young men went in the Umthambeka section of the township of Tembisa in
Gauteng, On 20 September 1998. With the intention of causing 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. Whilst some of the men raped the women, the others
stood as look-outs.
The Legal question
Does the doctrine of common purpose apply to common law sexual crime of
rape?
Whether the accused person who was present at a rape scene but who did not
participate in the rape, neither abetted nor aided the perpetrators could be
found guilty of rape?
The Court decision
1
Tshabalala v The State; Ntuli v the state (2020) (3) BCLR 307 (CC).
, The court decided the affirmative by developing common law doctrine of common
purpose and extending its application to rape cases. The court further held that it did
so to remove the obstacles caused by patriarchal elements of the common law found
in the criminal law. The judgement was that the court used feminism as a starting point
for understanding the plight of women in rape cases. It affirmed its solitary with women
facing sexual violence and introduced feminist legal theory as a viable jurisdiction
consideration in the adjudication of sexual crimes.
2. Mary Joe Frug argues that there are at least three general claims that can be
made about the relationship between legal rules and legal discourse and the
meaning of the female body:
Legal rules permit and sometimes mandate the terrorization of the
female body. This occurs by a combination of provisions that
inadequately protect women against physical abuse and that encourage
women to seek refuge against insecurity. One meaning of "female body,"
then, is a body that is "in terror," a body that has learned to scurry, to
cringe, and to submit. Legal discourse supports that meaning. 2
Legal rules permit and sometimes mandate the materialization of the
female body. This occurs with the use of provisions that reward women
for singularly assuming responsibilities after childbirth and with those
that penalize conduct - such as sexuality or labour market work - that
conflicts with mothering. Materialization also occurs through rules such
as abortion restrictions that compel women to become mothers and by
domestic relations rules that favour mothers over fathers as parents.
Another meaning of "female body," then, is a body that is "for" maternity.
Legal discourse supports that meaning.
Legal rules permit and sometimes mandate the sexualisation of the
female body. This occurs through provisions that criminalize individual
sexual conduct, such as rules against commercial sex (prostitution) or
2
Mary Joe Frug, Postmodern Feminist Legal Manifesto (An unfinished draft) [1994].
MODULE CODE: LJU4801
ASSIGNMENT NO: 01
DUE DATE: 26 AUGUST 2022
1. S v Tshabalala case summary.
Facts of the case
The High Court convicted the applicants together with their co-accused of various
charges including the common law crime of rape on the basis of common purpose, On
Wednesday, 11 December 2019 at 10h00.1 This application concerned the proper
application of the doctrine of common purpose to the common law crime of rape. A
group of young men went in the Umthambeka section of the township of Tembisa in
Gauteng, On 20 September 1998. With the intention of causing 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. Whilst some of the men raped the women, the others
stood as look-outs.
The Legal question
Does the doctrine of common purpose apply to common law sexual crime of
rape?
Whether the accused person who was present at a rape scene but who did not
participate in the rape, neither abetted nor aided the perpetrators could be
found guilty of rape?
The Court decision
1
Tshabalala v The State; Ntuli v the state (2020) (3) BCLR 307 (CC).
, The court decided the affirmative by developing common law doctrine of common
purpose and extending its application to rape cases. The court further held that it did
so to remove the obstacles caused by patriarchal elements of the common law found
in the criminal law. The judgement was that the court used feminism as a starting point
for understanding the plight of women in rape cases. It affirmed its solitary with women
facing sexual violence and introduced feminist legal theory as a viable jurisdiction
consideration in the adjudication of sexual crimes.
2. Mary Joe Frug argues that there are at least three general claims that can be
made about the relationship between legal rules and legal discourse and the
meaning of the female body:
Legal rules permit and sometimes mandate the terrorization of the
female body. This occurs by a combination of provisions that
inadequately protect women against physical abuse and that encourage
women to seek refuge against insecurity. One meaning of "female body,"
then, is a body that is "in terror," a body that has learned to scurry, to
cringe, and to submit. Legal discourse supports that meaning. 2
Legal rules permit and sometimes mandate the materialization of the
female body. This occurs with the use of provisions that reward women
for singularly assuming responsibilities after childbirth and with those
that penalize conduct - such as sexuality or labour market work - that
conflicts with mothering. Materialization also occurs through rules such
as abortion restrictions that compel women to become mothers and by
domestic relations rules that favour mothers over fathers as parents.
Another meaning of "female body," then, is a body that is "for" maternity.
Legal discourse supports that meaning.
Legal rules permit and sometimes mandate the sexualisation of the
female body. This occurs through provisions that criminalize individual
sexual conduct, such as rules against commercial sex (prostitution) or
2
Mary Joe Frug, Postmodern Feminist Legal Manifesto (An unfinished draft) [1994].
