Abstract

In S v Tshabalala, the Constitutional Court considered an appeal about whether  accused persons who were present at a rape scene, but who did not participate in the  crime and who neither aided nor abetted the perpetrators, could be found guilty of  rape. The court decided this question in the affirmative by developing the commonlaw  doctrine of common purpose and extending its application to rape cases. The court  said that it did so to remove obstacles caused by patriarchal elements of the common  law found in criminal law. The most interesting aspect of the judgment is that the  court used feminism as a starting point for understanding the plight of women in rape  cases. It affirmed its solidarity with women facing sexual violence and introduced  feminist legal theory as a viable jurisprudential consideration in the adjudication of  sexual crimes. This note considers the judgment and its implications for South Africa.