Doctrine of common purpose: Can the actions of one accomplice be attribute to others?

November 1st, 2023

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The common purpose principle is used by our courts in order to establish whether the actions of one of the perpetrators can be imputed on the others in order to hold all liable. The Constitutional Court (CC) in S v Thebus and Another 2003 (6) SA 505 (CC) at para 18 held that: ‘The doctrine of common purpose is a set of rules of the common law that regulates the attribution of criminal liability to a person who undertakes jointly with another person or persons the commission of a crime.’ Namane and Another v S (FB) (unreported case no A196/2014, 15-12-2016) (Ebrahim J, Murray AJ et Chesiwe AJ) at para 15 held that: ‘“Common purpose” is defined as a situation in which two or more people … agree … to commit a crime or actively associate in a joint unlawful enterprise.’ It is clear that to apply the doctrine of common purpose, two or more people must be involved and the actions of one can be attributed to the other because of their shared intention to commit an unlawful act.

The different forms common purpose can take

The CC in Thebus at para 19 identified two different forms of common purpose. The one where a prior agreement, whether expressed or implied, between the parties arose or by way of active association and participation to commit a common offence. The two different forms have different requirements, and it is worthwhile to take a look at how the courts have applied both in different scenarios.

Prior agreement will be established where the perpetrators previously agreed to commit an offence. The court in S v Molimi and Another 2006 (2) SACR 8 (SCA) at para 34 found that: ‘The evidence shows that the first appellant initiated and then planned the robbery in collaboration with the second appellant and accused 1.’ This is a clear indication that an agreement between the parties was reached that they want to commit robbery and that they acted in concert to commit this crime as founded by the court after evidence was led. The court in S v Mzwempi 2011 (2) SACR 237 (ECM) held at para 21 that ‘prior agreement may not necessarily be express[ed] but may be inferred from surrounding circumstances.’

The second form is active association. In Namane the court held that each of them is responsible for the acts committed by the others, either foreseeing the possibility that the others might perform an act in order to further their common purpose, and ‘was indifferent to such acts and their consequences’. The court indicated that the other party foresaw the possibility that the one party might commit a crime and he who did not do the actual offence, reconciled himself with that possibility, making him as liable as the one who committed the offence. Counsel for the appellant in S v Govender 2023 (2) SACR 137 (SCA) submitted that the appellant and the accused did not agree to commit murder and thus the appellant should be found not guilty because of lack of evidence showing prior agreement. The court in Govender at para 15 applied the common purpose principle to the party that did not shoot the deceased and reasoned that: ‘The appellant thus knew, or foresaw the possibility, that accused 1 was going to use the firearm in the club, which could result in the death of a person, but nonetheless reconciled himself with that possibility.’ Stating that one did not have a prior agreement, while actively associating oneself with the unlawful act will make one just as liable as the one that caused the unlawful result.

Case study involving common purpose

In the case of Tilayi v S [2021] 3 All SA 261 (ECM), a group of men planned to intercept and rob a cash-in-transit vehicle. The vehicle belonging to Cash Paymaster Services was on its way to deliver the money to a pension pay-out point in a village in Tsolo on 15 September 2005. The robbers waited along the planned route of the cash-in-transit vehicle in two vehicles of their own, a bakkie and a stolen sedan. They were armed with firearms. Their plans were foiled when a manager reported two suspicious looking vehicles along the route of the cash-in-transit vehicle. The assistance of the police was called in to accompany the vehicle along the planned route in order to safely deliver the money to its intended destination. A spotter of the robbers alerted the robbers of the police’s presence, and they took off. As the robbers drove off, they passed the police. The police recognised the vehicles by the description given to them, turned around and gave chase. The occupants in the bakkie shot at the police while being chased. The bakkie was later abandoned and the robbers fled on foot, while continuing to shoot at the police. The occupants of the stolen sedan later also abandoned their vehicle and fled on foot. The robbers tried to flee in any and every direction. The police gave chase in the forest. The police later called in the assistance of a police helicopter while waiting at the abandoned bakkie. Shots were fired from the forest and a police officer was fatally wounded.

The appellant was found not guilty of robbery because the court found that the robbery was only at the stage of planning and did not commence and was not executed. The appellant was, however, convicted of murder. The reasons advanced for this was, the trial court cannot prove the identity of the co-conspirators that fired the shots at the officers. It was submitted by the counsel of the appellant that once the appellant withdrew from the planned or agreed robbery, the appellant cannot to be found guilty of murder because he cannot be held liable for the actions of his co-conspirators after he withdrew from the agreed robbery. The court at para 23 applied the requirements as laid down by S v Mgedezi and Others 1989 (1) SA 687 (A) at 705I – 706C, where it states that –

  • the person must be present at the scene of the unlawful act;
  • he must have been aware of the unlawful act;
  • his intention was to form common cause with the unlawful act;
  • he committed some act in furtherance of the common unlawful act; and
  • he had the guilty mind towards the unlawful act.

Counsel for the appellant submitted that the only agreement the appellant had was to commit the robbery and not murder. The court in finding the appellant guilty of murder by his active association, thus determined common purpose which in turn imputed the liability of the others on him. The court reasoned that he was actively planning with the others to commit the robbery and the execution of it. He was present in the bakkie when the police gave chase and the occupants of the bakkie shot at the police and he himself was armed. The court at para 33 held that the conduct of the appellant was consistent with the ‘plan to use violence’. They were armed with heavy calibre assault weapons in order to overcome any resistance, including shooting their way out of a difficult situation, if needs be. The court stated that the appellant ‘did foresee the possibility of a shooting affray’. He had the ‘necessary mens rea’ in respect of murder.

Dissociating, abandoning or withdrawing from the common purpose agreement

In the Tilayi case the counsel for the appellant argued that the appellant withdrew from the agreement when the planned robbery was not executed. In order to effectively dissociate from a previous agreement to commit an unlawful act the courts had laid certain requirements in order to indicate that the one co-conspirator withdrew from the agreement. In Nube v S (SCA) (unreported case no 091/15, 30-9-2015) (Bosielo JA (Pillay and Dambuza JJA, Van der Merwe and Govern AJJA concurring)) the court at para 23 dismissed the appellant contention that he dissociated himself from the planned robbery. In dismissing the contention, the court held that ‘the day of the heist; and his unexplained failure to disclose sufficient information pertaining to the planned heist which would have allowed Grootboom [the police officer] to foil it.’ The Supreme Court of Appeal indicated that to effectively withdraw it might require one to divulge information to the police in order to stop the planned unlawful act. In Namane at para 44 the court referred to S v Musingadi and Others 2005 (1) SACR 395 (SCA) where the court held that a sufficient dissociation would depend –

  • on the circumstances;
  • manner and extent of involvement;
  • how far the crime had progressed;
  • the timing and manner of disengagement; and
  • in some instances, the preventative measures the person took to prevent the completion of the crime.

In Mawala v S (KZP) (unreported case no AR267/16, 12-10-2018) (Pillay J) at para 19 the court held that common purpose is a ‘legal construct’ to assist the State in prosecution where evidence is insufficient to link offenders to one another and to the crime. It is evident that the principle of common purpose is not just a tool, but an effective mechanism created to serve justice. Without it the State would have been in many instances clueless as to the true identity of the one who committed the act. The common purpose principle makes it easier to not just punish the true actor but also his co-conspirators who had the intention to commit such crimes that caused the unlawful result.

Andrew Jeffrey Swarts LLB (Unisa) is an aspirant prosecutor at the National Prosecuting Authority in Upington.

This article was first published in De Rebus in 2023 (Nov) DR 18.

De Rebus