FEW NOTES TO CONSIDER

The leading case on the doctrine of common purpose by way of active association is S v Safatsa 1988. In this case the facts were the following: A crowd of about one hundred people attacked Y, who was in his house, by pelting the house with stones, hurling petrol bombs through the windows, catching him as he was fleeing from his burning house, stoning him, pouring petrol over him and setting him alight. The six appellants formed part of the crowd. The court found that their conduct consisted inter alia of grabbing hold of Y, wrestling with him, throwing stones at him, exhorting the crowd to kill him, forming part of the crowd which attacked him, making petrol bombs, disarming him and setting his house alight.

In a unanimous judgment delivered by Botha JA, the Appellate Division confirmed the six appellants' convictions of murder by applying the doctrine of common purpose, since it was clear that they all had had the common purpose to kill Y. It was argued on behalf of the accused that they could be convicted of murder only if a causal connection had been proved between each individual accused's conduct and Y's death, but the court held that where, as in this case, a common purpose to kill had been proved, each accused could be convicted of murder without proof of a causal connection between each one's individual conduct and Y's death. If there is no clear evidence that the participants had agreed beforehand to commit the crime together, the existence of a common purpose between a certain participant and the others may be proven by the fact that he actively associated himself with the actions of the other members of the group.

Active association as proof of participation in a common purpose

Existence of a common purpose a participant and other members of group may be based on finding that participant actively associated with actions of other members of group. In Mgedezi 1989 Appellate Division held that, if there is no proof of a previous agreement between perpetrators, an accused whose individual act is not causally related to Y's death can only be convicted of murder on strength of the doctrine of common purpose if five requirements have been complied with:

. he must have been present at the scene of the crime

. he must have been aware of the assault on Y

. he must have intended to make common cause with those committing assault

. he must have manifested his sharing of a common purpose by himself

performing some act of association with the conduct of the others

. he must have intention to kill Y or to contribute to his death

Somebody who was a passive spectator of events will not terms of this doctrine, be liable to conviction even though he may have been present at scene of action.

For X to have a common purpose with others to commit murder it is not necessary that his intention to kill be present in the form of dolus directus - dolus eventualis – he foresees the possibility that the acts of participants with whom he associates himself may result in Y's death, and reconciles himself to this possibility - is enough for liability

S v Williams 1980. X1, X2, X3, and X4 on train. X1 stabbed Y with knife, X2 went and held Y by neck and X3 stabbed Y with broken bottle and X4 watched. X1 and X3 charged with murder and X2 and X4 charged as accomplices.  X2 and X4 appealed. X4 was spectator and his appeal was upheld. X2 appeal against conviction was not upheld. Controversial that X2 was convicted as accomplice and not co-perpetrator. His conduct complied with definition of crime of murder can a person further death of victim without also causing it?

You must know what objection is to convicting a person of being an accomplice (as opposed to co-perpetrator) to murder. In Williams case it was accepted that a person can be an accomplice to murder, but this aspect of judgment has been criticised by Snyman (Criminal Law). You must ensure that you know what the criticism is.

Snyman is of opinion that it is not possible to be an accomplice to murder.

Is it possible to further victim’s death without also causing it? Appelate court in Williams case accepted that person may be accomplice to murder and held that one of the accused was guilty as accomplice to murder. Snyman feel decision incorrect because the person accused as accomplice was the cause of death of victim and should have been convicted as co-perpetrator. Certain legal writers are of view that it is impossible to be accomplice to murder while others accept possibility of this form of liability.