Towards the end of last year, the Constitutional Court handed down a judgment widely lauded by those in the frontlines of fighting gender-based violence. The highest court in the land ruled unanimously that you can be convicted of gang rape without the act of penetration, by virtue of the doctrine of common purpose – effectively that if you intended to commit the crime with others and were part and parcel of its planning and commission you were as guilty of it as if you had actually done it.
At first blush for the non-legally trained, it seems a leap of imagination and logic to convict someone for a crime they didn’t physically commit. It is one of the reasons why the doctrine was so highly controversial in the past: apartheid police and prosecutors successfully used it to get rioters hanged for mob incurred necklacings in townships during the Struggle – even if those protestors had just been bystanders, because of their common intent.
Its use became controversial again in 2012, when the NPA reintroduced it to pin common purpose on the miners at Marikana, although not on the police who perpetrated the actual massacre. The charges were later dropped.
There’s nothing more controversial though than rape in this country and this judgment, with its far-ranging implications, will be a potent deterrent in combating the scourge of sexual violence that shames us every day.
Isn’t it strange though that we struggle legally with the concept of collective responsibility, when our politicians find such comfort in it? It’s probably because common purpose is tied so unequivocally to punishment.
Politically, it’s the easiest thing in the world to assume collective responsibility for the failings of a state or a repressive regime. It’s a mealy-mouthed way of deflecting culpability by appearing to nobly accept responsibility but actually neutering any real attempt of pinning the blame on the actual individual miscreant. Which probably explains why we’ve seen ‘collective responsibility’ parroted as a panacea all the way from the Truth and Reconciliation Commission to SAA, Prasa and Eskom today.
In the process, like most South African phenomena, it’s become a political football; the Radical Economic Transformationists play the ‘collective responsibility’ card to stop Jacob Zuma being demonised for nine wasted years, as much as the New Dawnists use it to try to prevent a False Dawn.
In 2008, Zapiro controversially drew Jacob Zuma about to sate himself on Lady Justice, who was pinned down variously by Julius Malema, Gwede Mantashe, Blade Nzimande and Zwelinzima Vavi –the erstwhile president’s most vocal and staunch defenders at the time. Based on last month’s court decision each one of them in that drawing would have faced the same jail term as Zuma, were he to have been convicted.
If our leaders want us to be serious about taking collective responsibility for fixing this country, they have to take a leaf out of the Constitutional Court’s book too and start applying the doctrine of common purpose too.
Or, they can just do their jobs and prosecute the obviously guilty, instead of grandstanding. They’ll find it’s a lot easier – and safer – in the long run.
Originally published on 4 January 2020 in the Saturday Star