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Persons involved in the crime - subdivided into two categories, persons whoparticipate and persons who do not participate. A person involved who participates is a
``participant''. furthers the commission of the crime.
Accessory after the fact is not participant – he does not further the commission of the
crime – when he learns about it the crime has already been committed.
``participants'' - be divided into two - perpetrators and accomplices.
Definition of a perpetrator
Person is perpetrator if: General Principles of liability
(1) his conduct, the circumstances in which it takes place (including, where
relevant, a particular description with which he as a person must,
according to the definition of the offence, comply), and the culpability with
which it is carried out are such that he satisfies all the requirements for
liability contained in the definition of the offence
OR Doctrine of common purpose
(2) if, although his own conduct does not comply with that required in the
definition of the crime, he acted together with one or more persons and the
conduct required for a conviction is imputed to him by virtue of the
principles relating to the doctrine of common purpose.
Definition of an accomplice
A person is an accomplice if
(1) although he does not comply with all the requirements for liability
set out in the definition of the crime, and
(2) although the conduct required for a conviction is not imputed to him in
terms of the doctrine of common purpose, he engages in conduct whereby
he furthers the commission of the crime by somebody else.
Whether someone is perpetrator, first look at definition crime and, secondly, consider
whether accused's conduct, state of mind and characteristics comply with definition.
Some crimes can only be committed by people complying with a certain description -
e.g. - high treason only committed by person owing allegiance to SA republic.
crime can only be committed by a person who has a certain occupation (e.g.
a medical doctor or holder of a certain licence.
accomplice, he furthers the crime committed by someone else.
Court convicts somebody of crime without explicitly specifying he is convicted as
accomplice to crime, it means he is convicted as a perpetrator (or co-perpetrator
PERPETRATORS (Criminal Law 260±272)
1.3.1 Co-perpetrators: unnecessary to identify principal perpetrator
Person is perpetrator if he complies with all requirements for liability in definition of
crime, or if the act of somebody else who is perpetrator is imputed to him in terms of
common purpose doctrine.
Where there is more than one participant or perpetrator, it is not always possible to
select one as the principal offender.
,Principal offender-distinction between principal offender and other perpetrators is not
important for the purposes of liability - it can important in assessment of punishment.
Where several persons commit crime together and their conduct, state of mind
and characteristics all comply with definition of crime, each one of them is co-
perpetrator - One co-perpetrator's contribution may be more or less than that of the
other.
Co-perpetrators: difference between direct and indirect perpetrator irrelevant
. A direct perpetrator is a perpetrator who commits the crime with his own
hands or body.
. An indirect perpetrator does not commit the crime with his body, but makes
use of somebody else to commit the crime
The distinction between a direct and an indirect perpetrator is of no significance for
purposes of determining liability.
For the purposes of liability as a perpetrator in commission of crime e.g. murder:
. someone stands guard while his partner shoots Y dead (Mashami 1967
. drives his partner to and from scene of crime (Bradbury 1967
. tells him where he can find Y, or
. stands next to him while he assaults Y, ready to help him if it is required of
him (conduct assistance and encouragement to principal offender) (Mbande 1933; Du
Randt 1954.
. obtains his services to shoot Y (Nkombani 1963
Their conduct and culpability comply with requirements for liability set out in definition of
crime - their acts also amount to a causing of Y's death. But for their acts a conditio
sine qua non, Y would not have died - a passive spectator to a deed of murder
cannot be held liable as a co-perpetrator (compare the position of accused no 4 in
Williams 1980.
Being a perpetrator of murder by virtue of the doctrine of common purpose
(Criminal Law 263±272; Case Book 199±205)
1.3.4.1 General
Definition of doctrine of common purpose
If two or more people, having a common purpose to commit a crime, act
together in order to achieve that purpose, the acts of each of them in the
execution of such a purpose are imputed to the others.
Has been applied mostly to the crime of murder.
Crucial requirement of doctrine is that different accused should have had same
purpose. The act of Z, who threw a heavy stone at Y which struck him on the head, is
imputed to X, who had a common purpose with Z to kill Y but who threw a stone at Y
which missed him. Only Z's act is imputed to (X) - not Z's culpability. X's liability is
based upon his own culpability (Malinga 1963
Common purpose doctrine is mechanism applied to overcome difficulties inherent in
proving causation where a number of people together kill somebody else.
1.3.4.2 Proof of existence of common purpose
,Existence of a common purpose is proved by:
. On the basis of an express or implied prior agreement to commit an offence.
Since people mostly conspire in secret it is very difficult for the state to prove a
common purpose based on a prior agreement.
. Where no prior agreement can be proved, the liability arises from an active
association and participation in a common criminal design (Thebus 2003
1.3.4.3 Why it is necessary to have such a doctrine
1.3.4.4 The judgment in Safatsa
Read the following decision in the case book: Safatsa 1988.
The leading case on the doctrine of common purpose is 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.
1.3.4.5 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.
Other principles which emerge from the case law are the following:
, . In murder cases active association can only result in liability if act of association
took place whilst Y was still alive and at a stage before lethal wound had been
inflicted by one or more other persons (Motaung 1990.
Active association with common purpose should not be confused with ratification or
approval of another's criminal deed which has already been completed. Criminal
liability cannot be based on such ratification (Williams 1970.
1.3.4.6 Liability on the basis of active association declared constitutional
In Thebus 2003 - liability for murder on basis of active association with execution of a
common purpose to kill was challenged on grounds that it unjustifiably limits
constitutional right to dignity, to freedom and security of a person right of an accused
person to a fair trial. Constitutional Court rejected these arguments and declared
constitutional the common-law principle which requires mere ``active association''
instead of causation as a basis of liability in collaborative criminal enterprises. One of
the court's main arguments was the following:
Doctrine of common purpose serves vital purposes in our criminal justice system.
Principal object of doctrine is to criminalise collective criminal conduct and thus to satisfy
need to control crime committed in course of joint enterprises. In crimes such as murder
it is difficult to prove that act of each person or of a particular person in group contributed
causally to criminal result. Insisting on a causal relationship would make prosecution of
collective criminal enterprises ineffectual. Effective prosecution of crime is a legitimate,
pressing social need. Thus, there was no objection to the norm of liability introduced by
requirement of ``active association'' even though it bypassed the requirement of
causation.
1.3.4.7 Common purpose and dolus eventualis
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.
X is charged with murder - a number of persons, among them X, took part in a or
housebreaking, and Z, one of members in the group, killed Y in course of action.
question arised whether X and Z had a common purpose to kill Y. Mere fact they all had
intention to steal is not necessarily sufficient to warrant inference that all of them also
had common purpose to kill. One can steal killing anybody. Whether X also had
the intention to murder, must be decided on the facts of each individual case.
The case of Mambo 2006 -practical illustration. Three awaiting-trial prisoners planned
to escape from their court cells. Plan included forceful dispossession (robbery) of a
court orderly's firearm. When orderly unlocked gate of the cell so that accused could
enter, X1 gripped the orderly around his neck, X2 reached for orderly's lower legs and
tugged at them, causing him to lose his balance and X3 reached for the orderly's firearm
in his holster on his right hip and grabbed it with both hands. As orderly wrestled to free
himself from clutches of X1 and X2, X1 uttered word shoot. X3 cocked firearm and fatally
shot orderly. They were convicted in the High Court on charges of murder, robbery, and
escape from lawful custody. The Supreme Court of Appeal upheld convictions of all
three on robbery and escape charges because these were part of their prior agreement or
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