IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NUMBER: CCT 323/18 & CCT 69/19 DATE ON ROLL – 22 August 2019
In the matter of:
CCT 323/19 TSHABALALA, JABULANE ALPHEUS APPLICANT
and
THE STATE RESPONDENT
COMMISSION FOR GENDER EQUALITY AMICUS CURIAE EQUALITY
CCT 69/19
NTULU, ANNANIUS APPLICANT
and
THE STATE RESPONDENT
RESPONDENT’S PRACTICE NOTE
_________________________________________________________
CCT 323/18/CCT69/19
(a) The names of the parties and the case number:
Kindly refer to above heading.
(b) The nature of the proceedings:
Criminal.
(c) The issues that will be argued, clearly and succinctly stated:
1. Condonation;
2. Jurisdiction;
3. Whether the doctrine of common purpose applies to common law rape;
4. Whether a prior conspiracy/agreement has been proved with regard to the eight rape counts.
5. Leave to appeal
(d) An indication of portions of the record that, in the opinion of counsel, are necessary for the determination of the matter:
Nothing further to add to the portions identified in the Applicants Practice Note, especially the Decision by the Trial Court forming part of Volume 10 pages 722 to 809.
(e) An estimate of the duration of oral argument:
Approximately 45 minutes
(f) A summary of the argument not exceeding five pages of typescript, double-spaced and in fourteen-point font:
1. It will be argued that the Court has jurisdiction to consider whether or not common purpose can be applied to common law rape cases;
2. It will also be argued, based on the decision by the Trial Court, that a prior conspiracy/agreement had been proved
rape counts despite the contrary rulings by the Full Bench and the Supreme Court of Appeal in the Phetoe matter;
3. In the alternative, it will be argued that if the Court rules e.g.
that a prior conspiracy/agreement had not been proved on the rape counts, Mr Tshabalala’s (accused 6) conviction on count 23 as a physical perpetrator can be confirmed as also conceded by the Applicants in their written submissions.
(g) A list of authorities on which particular reliance will be placed during oral argument:
1. S v Phetoe 2018(1) SACR 593 (SCA);
2. S v Jacobs and Another 2019(1) SACR 623 (CC);
3. General Council of the Bar of South Africa v Jiba and Others [2019] ZACC 23;
4. S v Thebus and Another 2003 (2) SACR 319 (CC);
5. S v Makhubela and Another 2017 (2) SACR 665 (CC);
6. S v Moses 2010 JDR 0851 (NCK).
Articles
7. Article 25(3)(a) and (d) of the ICC Statute
Books
8. Snyman, Criminal Law, Six Edition.
DATED AT JOHANNESBURG ON THIS THE 11th DAY OF JULY 2019
____________________
JJ du Toit
Deputy Director of Public Prosecutions, Gauteng Local Division of the High Court, Johannesburg
Innes Chambers 94 Pritchard Street Johannesburg Ref: Adv. JJ du Toit Tel: (011) 220 4248 Fax: (012) 843 1208
Email address: [email protected]
________________________
KT Ngubane State Advocate 94 Pritchard Street Johannesburg
Ref: Adv. KT Ngubane Tel: (011) 220 4207 Fax: (012) 843 1208
Email address: [email protected]
