Two gang members are trying to overturn their convictions for alleged rapes they committed in 1998 because they claim they were not the perpetrators of the crime.
The two are seeking clarity from the Constitutional Court on whether the doctrine of common purpose applies to common law rape.
It is unclear when the matter will be heard in the ConCourt.
To discuss common purpose law, Bongani Bingwa chats to Centre for Applied Legal Studies candidate attorney Busisiwe Kamolane.
Common purpose law is when a group of people decide to commit a crime and then the act of one person becomes imputed on all of them. It then doesn't become necessary to individually hold every one of them accountable for the actions of the crime.— Busisiwe Kamolane, Candidate attorney - Centre for Applied Legal Studies
She says in this particular case, this group of people went to different houses and raped women.
So how common purpose is applied by our courts is that the court is of the opinion that common purpose cannot apply to rape crimes because you need your own body to physically commit the crime of rape. But our argument is that this is arbitrary because common purpose is applied to every other crime. This becomes a challenge because rape is more than just penetration, it is power crime and our courts have said this, it is stripping a person of their own autonomy.— Busisiwe Kamolane, Candidate attorney - Centre for Applied Legal Studies
Listen below to the full interview: