Progressive or regressive rape case law? Tshabalala v S; Ntuli v S 2020 2 SACR 38 CC

The Constitutional Court’s decision in Tshabalala v S; Ntuli v S 2020 2 SACR 38 CC is undoubtedly a step in the right direction towards rape law reform in South Africa, however, this article challenges the court’s decision to extend the application of the common law doctrine to common law rape. It is argued that the court could have highlighted the power dynamics at play during the commission of rape without denouncing instrumentality as a central element of the crime. This article further argues that the Constitutional Court, in developing common law rape, should have taken into account that rape is a conduct/instrumental crime under the Criminal Law (Sexual Offences and Related Matters) Amendment 32 of 2007. Instead, the judgment now has the effect of creating different elements for common law rape, in cases where there is more than one perpetrator.