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An analysis of the doctrine of common purpose in South African law, focusing on its background, definitions, constitutionality, and factors that give rise to dissociation from such common purpose. The paper also examines case law and extracts the principles at play in the application of this doctrine. The doctrine of common purpose traces back to the Transkei Penal Code and has been applied in various cases, including those involving murder and conspiracy.
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1.1 Background 4 1.2 Purpose and objectives of the dissertation 6 1.3 Research Methodology 6 CHAPTER 2: A BRIEF HISTORICAL BACKGROUND AND THE DEFINITION OF COMMON PURPOSE DOCTRINE 2.1 Introduction 8 2.2 The Transkeian Penal Code 8 2.3 The early application of the doctrine through the cases 8 2.4. Definition of the common purpose 11 2.5 The Safasta decision 14 2.6 The Mgedezi decision 16 2.7 Conclusions 19 CHAPTER 3 : THE CONSTITUTIONALITY OF THE DOCTRINE OF COMMON PURPOSE. 3 .1 Introduction 20 3 .2 Facts of the Thebus case 21 3 .3 Criticism of the Thebus case 24 3 .4 Justification for the doctrine of common purpose 25 3.5 Conclusion 26
the area of contraband entering the country.^2 ‘(T)he phenomenon of serious crimes committed by collective individuals acting in concert remains a significant societal scourge’.^3 In their desperate attempt to control this growing plague the State needs to use the best of modern technology to ensure successful arrests and prosecutions and to this end we see the use of DNA evidence, cellphone records and satellite mapping to name a few. But all of this technology makes for little assistance in a trial if causation element cannot be proved. It is to this end that the common purpose doctrine is most helpful as it completely negates the need to prove causation for each individual accused who is part of the common purpose. Today in most cases involving multiple accused persons, it is the application of this doctrine that secures a more successful rate of convictions on the main (and often more serious) counts. Despite being a helpful tool in securing successful prosecutions of syndicate and mobs engaged in illegal activities, the application of the common purpose doctrine has been rather contentious in our law. The decision of the court in the S v Safatsa^4 case caused an international outcry against the then apartheid state and its judiciary. This decision was seen in the context of the political milieu of the time. Here the court extended the definition of the doctrine to include active association. The S v Thebus^5 decision in 2003 saw the common purpose doctrine, in the active association form, pass constitutional muster. As of late the doctrine has again attracted negative criticism when the National Prosecuting Authority (NPA) decided to prosecute the surviving Marikana miners.^6 The 270 miners that survived the deaths of their colleagues, who were shot by the police were charged with murder of the very same colleagues. The outcry was such that the charges were eventually withdrawn. (^2) Snyman CR ‘ Criminal Law’ 5ed (2008) 22;23; (^3) S v Thebus 2003 (6) SA 505 (CC) para 34 (^4) S v Safatsa 1988 (1) SA 860 (^5) Note 3 above (^6) Masombuka S ‘NPA buckles under Marikana pressure’ in Legalbrief as accessed at http://legalbrief.co.za/diary/legalbrief-today/story/npa-backs-off-marikana-murder-charges/print/ on 3 August
The method of research employed in this research paper is largely analytical and library- based. It focuses on cases, journals, foreign law where applicable and any other written material related to the doctrine of common purpose. Although a full comparative analysis of the law of complicity in other comparable jurisdictions has not been undertaken, reference is made to the jurisdictions for purposes of comparison and to confirm the South African approach. The primary objectives of my research work into dissociation from the common purpose entails the following structure:
2.1 Introduction We trace back the early legislation and case law reflecting application of what is now termed the ‘common purpose’ doctrine. A brief historical background is considered. We then look at the various definitions of common purpose. 2 .2 The Transkeian Penal Code The doctrine of common purpose has traces back to the Transkei Penal Code’s section 78, which is a version of the Native Territories Penal Code of 1886 section 78 which provides: ‘If several persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by anyone of them in the prosecution of such common purpose, the commission of which offence was, or ought to have been, known to be a probable consequence of the prosecution of such common purpose.’^9 The essence of this provision is that it is assumed that a person will know the reasonable and probable consequence of his actions. 2.3. The early application of the doctrine in South Africa cases In Roman–Dutch law, any person who counselled or gave assistance to another became punishable ‘ al den principal ’.^10 In R v Peerkhan & Lalloo^11 the court had, through the judgment of Innes J, interpreted what participation would mean in terms of the common law. Innes T held that, ‘It (our law) calls a person who aids, abets, counsels or assists in a crime a socius criminis – an accomplice or partner in crime. And being so, he is under Roman- Dutch law as guilty, and liable to as much punishment, as if he had been the actual (^9) Section 78 Native Territories Penal Code Act 24 of 1886 (^10) Literally translates to ‘as its principals’ (^11) 1908 TS 798
furtherance of their object, if what was done was what they knew or ought to have known, would be a probable result of their endeavoring to achieve their object. If on the other hand what is done is something which cannot be regarded as naturally and reasonably incidental to the attainment of the object of the illegal combination, then the law does not regard those who are not themselves personally responsible for the act as being liable; but if what is done is just what anybody engaging in this illegal combination would naturally, or ought naturally to know would be the obvious and probable result of what they were doing, then all are responsible.’ 18 The doctrine was given an objective formulation by the court as opposed to a subjective formulation, which will require personal foresight of a possibility to occur. The principle in effect embodies the well know dictum in criminal law, ‘qui facit per alium facit per se’.^19 And this is a fundamental maxim of the law of agency. It was nevertheless applied in a civil case, McKenzie v Van der Merwe,^20 in which case the plaintiff was an orange farmer who wished to recover his stock and recover damages to his farm by the defendant, another farmer. The defendant was at that time in rebellion against the King and the Government of the Union. The majority found that notwithstanding his rebellion, it did not mean that he was now responsible for all other acts of rebellion, committed by other rebels, save of course if he had authorized or instigated such acts. Judge Maasdorp however, in a dissenting judgment stated, ‘they are all liable for such acts of any of their associates as fell within the scope of the objects of the rebellion.’ 21 In R v Geere and Others,^22 Judge Schreiner accepted the doctrine of common purpose as being applicable in South African law. He contended that the word ‘purpose’ in the expression ‘common purpose’ should not be applied to mean that the death of the deceased (^18) Note 17 above, 19 (^19) Literally it translates as: a person who acts through another does the act himself. (^20) 1919 AD 41 (^21) Note 20 above (^22) 1952 (2) SA 319 A
must have been the result aimed at. In another case, a few years later, S v Nsele,^23 the appellant and his companion had gone to steal money from a store-owner but the companion, who had a gun, shot the owner. The issue was whether the appellant was also guilty of murder. The appeal failed and the conviction of murder of the appellant was confirmed in terms of the doctrine of common purpose. 2.4. Definition of the common purpose doctrine The essence of the doctrine of common purpose is that if two or more people, having a common purpose to commit a crime, act together in order to achieve that purpose, the conduct of each of them in the execution of that purpose is imputed to the others.^24 The doctrine itself is not confined to any particular crime but may apply generally. The doctrine finds application though in one of the most serious of crimes, murder. In considering the doctrine in the context of murder, it is accepted that one of the elements for the crime of murder is intention. Essentially in the context of common purpose it would be sufficient for this requirement to be met so that all the participants had the common intention to assist one another in the commission of the crime of murder. It may be argued that it is unjust to impute one person’s act to the others. However in the circumstances, having regard to the intention of all the participants, it would not be unjust to impute one person’s act to the others. What is important to remember is that the act itself is imputed and not the other participants and not the culpability of the one who actually carried out the act. The other participant’s liability is actually based upon his own culpability or intention. It is however not necessary for any form of pre-planned conspiracy. It would be sufficient for common purpose to arise spontaneously. The evidence may well lead to every indication that the conduct of all the participants actually led to the demise of a victim, for example in the case of murder. This (^23) 1955 (2) SA 145 (A) (^24) C R Snyman ‘ Criminal Law’ 6ed 2014 262,
commit the crime or actively associated themselves with the crime in question which is committed by one of the participants, the latter who acted with the required mens rea. If the state can prove that the latter participant actually caused the end result, then his actions are imputed to the other participants in the group. It is immaterial which particular participant caused the ultimate result.^26 Snyman, on the other hand opines that ‘[T]he crucial requirement is that the persons must all have had the intention to murder and to assist one another in committing the murder. Once that is proved, the act of X, who actually shot and killed Y, is imputed to Z, who was a party to the common purpose and actively associated himself with its execution, even though a causal relationship between his (Z’s) act and Y’s death cannot readily be proved. X’s act is then regarded as also that of Z.’ 27 What this in effect means is that Z gave up his right to object to the imputation the moment he started to engage in conduct such that he co-operated with X’s criminal act. ‘He signifies through his conduct that the other person’s (i.e., Z’s) act is also his.’ 28 As only the act is imputed and not the culpability, each actor’s liability is based on his own culpability. In cases of prior agreement, the basis of the doctrine is that each participant in a joint enterprise gave the other participant an implied mandate to commit the unlawful act. Hence the liability of the party who did not physically perform the act in question was pivotal to whether such act fell within the mandate given. 2.5 The Safatsa decision : Scope of common purpose increased. In Safatsa, six participants in a mob were charged with and later convicted of the murder of the deceased. The court found that each of the accused shared a common purpose to kill the deceased with a mob as a whole. Each were intent upon killing the deceased and in fact (^26) J Burchell ‘ Principles of Criminal Law ‘ 5ed (2016) 477 (^27) CR Snyman ‘Criminal Law’ 5 ed 2008 266 (^28) Note 27 above, 266
succeeded in doing so. As pointed out by the court, all eight accused by their conduct actively associated themselves with the achievement of the common purpose and each of them had the requisite mens rea for murder. The question that is faced by the courts in cases of this kind, in relation to murder is the following: is it competent for a participant in the common purpose to be found guilty of murder in the absence of proof that his conduct caused or contributed causally to the death of the deceased? The court found that the accused shared a common purpose to kill the deceased with the mob as a whole.^29 It was held in this case that there need not be a causal connection between the acts of every party to the common purpose and the death of the deceased need not be proved in order to sustain a conviction of each of the participants. ‘The trial court found that the mob intended to kill the deceased, and that the intention to kill had manifested itself at the time when his house was set alight.’ 30 The mob (excluding accused five and six), had the intention to kill the deceased and they had actively associated themselves with the mob in the killing of the deceased. The trial court found that the intention for the crime of murder was present for all these accused. In the judgment of Botha JA it was ‘a clear recognition of the principle that in cases of common purpose the act of one participant in causing the death of the deceased is imputed, as a matter of law, to the other participants. The reference to ‘voorafbeplanning’ is not significant, for it is well established that a common purpose need not be derived from an antecedent agreement, but can arise on the spur of the moment and can be inferred from the facts surrounding the active association with the furtherance of the common design.’ 31 The administration of the criminal justice system in South Africa was in the spot-light in the Safatsa^32 case. This particular judgment was at the height of the Apartheid state, when the (^29) Note 4 above, 894 (^30) Note 4 above, 893 (^31) Note 4 above, 898 (^32) Note 4 above
either, either explicit or implicit, or the situation where no such mandate exists. The court, in Mgedezi , set out certain requirements, prior to imputation being inferred, thus confirming the Safatsa decision. 2.6. The Mgedezi Decision In this case there was unrest in a mine compound where mineworkers considered their team leaders as informers. On the fatal night, bands of mineworkers raided the compounded while singing songs of death of these leaders. Violence erupted and a room used by the team leaders set alight while the door was torn down and the windows were broken. The attack resulted in the deaths of 4 team leaders while 2 managed to escape. The appeal court found that absenting a planned attack and absent a causal link between the killing or injuring of the victims, a accused could still be held liable on the basis of the Safatsa case if the following perquisites were met: ‘In the first place he must have been present at the scene where the violence was being committed. Secondly, he must have been aware of the assault on the victims. Thirdly, he must have intended to make common course with those who were actually perpetrating the assault. Fourthly, he must have manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of the others. Fifthly, the requisite mens rea ; so, in respect of the killing of the deceased, he must have intended them to be killed, or he must have foreseen the possibility of their being killed and performed his own act of association with recklessness as to whether or not death was to ensue.’^35 The principles enunciated by Burchell et al, occupies an integral part of decisions relating to common purpose. In fact in some instances it was argued that the common purpose ‘casts the net of criminal liability too widely’.^36 For example, in S v Mitchell and Another,^37 where the (^35) Note 4 above, 6 88 (^36) Boister N ‘ Common purpose: association and mandate’ , SACJ 1992 2 SAS 167 (^37) 1992 (1) SACR 17 (A)
doctrine of common purpose was applied in uncommon circumstances. Here, the appellants and two others collected stones and sat at the back of the van, throwing stones at pedestrians. One of them threw a brick and it struck the deceased on the head who later died. The main principle was whether the trial court had correctly applied the doctrine of common purpose. The trial court had convicted both X ( who threw the fatal brick) and Y (who was throwing stones) of murder. The conviction of Y called for an examination of the principles of the doctrine of common purpose. Nestadt J A upheld the appeal and reasoned as follows: ‘Nestadt found that the original agreement, the form of common purpose specified in Mgedezi as the mandate situation, did not extend to the throwing of the brick and thus the conscious decision to participate in the throwing of the stones could not be the basis for imputing X’s action to those party to the original agreement. Something more was required of Y. As there was no agreement to throwing paving stones the issue was whether Y actively associated with X’s actions.’ 38 In terms of Nestadt J A’s reasoning, Y did not foresee the use of the brick and the fatal consequences thereof. Thus he was not liable as minus the intention to kill, X’s act could not be imputed to him. Boister correctly points out that he ‘assessed Y’s fault at the moment of the murder and not at the time when the alleged common purpose came into being….The actual perpetrator’s actions which serve as a substitute for the actions of the party to the common purpose are only imputable if the latter has the requisite fault when the perpetrator acts.’ 39 Burchell opines that the case of Mzwempi^40 is both a ‘prior agreement’ agreement (to commit crime A i.e. assault, arson and public violence) and alleged active association in crime B (murder).^41 He is in agreement with Alkema J. It has been noted in Mgedezi that in order for the association to be considered in the context of common purpose, an accused must be fully aware that together with the minds of the others, they are all directed at the same common intent, for example the killing of the (^38) Note 36 above, (^39) Note 36 above, 169 (^40) 2011 (2) SACR 237 (ECM) 19 (^41) Note 26 above, 479
himself, for reasons not related to that of the common purpose, he cannot be held to be associated with such a common purpose. The crucial point is actually the time when the accused associated himself in the common purpose or ceases to associate himself, as this is what would be taken into consideration to determine liability of that accused. Where there is some form of association to a common purpose to kill, which association was after the deceased was fatally injured and there was nothing further done by the accused thereafter that hastened the death of the deceased, then in such circumstances, the accused may be held at most for attempted murder and not for murder itself. 2.7 Conclusion The application of the common purpose doctrine has the effect of treating all whom it encompasses as drones. The doctrine of common purpose too forces all persons within its scope to be liable and not being very selective of the actual act that an individual in fact did. This begs the question is this doctrine actually constitutional in light of its far-reaching implications for participants in a joint enterprise?
3 .1 Introduction In the previous chapters the development of the doctrine of common purpose through the years and various case laws evolved in the process. The South African courts no longer requires a common purpose to be preceded by a prior conspiracy but essentially bases liability on active association. In other words, all that is required is to show that there was some form of solidarity with the principal.^44 The proof of a causal element in the commission of a crime is integral in criminal law. However it would appear that the doctrine of common purpose rule dispenses with the requirement of causal element in consequences of crime in certain circumstances.^45 It is in fact in contradiction of the fundamental principle in law that the prosecution must prove the elements of liability beyond reasonable doubt. Accordingly, such a rule in respect of the doctrine of common purpose deviates from the presumption of innocence, or so in a constitutional state such as South Africa. One of the other critical issues raised is that the application of this doctrine in effect prejudices a group of people in the circumstances in that they are not treated equally.^46 That is, in relation to those accused persons who are charged with consequence crimes but are not engaged in common purpose. It is further contended that the common purpose rule is not reasonable and justifiable as there are less intrusive means of punishment for such crimes as where there is joint liability. There could in other words be alternative convictions in the form of public violence, conspiracy, incitement, attempt or accomplice liability.^47 On the other (^44) A form of liability that is unknown in English law or other common law countries like Canada and Australia, the exception being Scotland. (^45) Note 26 above, 486 (^46) Section 35(3)(h) of the 1996 Constitution(the right to be presumed innocent, to remain silent, and not to testify during the proceedings). (^47) Note 26 above, 487
