Notes: Introducing feminist legal theory as a basis for South African judicial jurisprudence: Insights from S v Tshabalala

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.