OF HOUSEBREAKING AND COMMON PURPOSE: S v Leshilo 2017 JDR 1788 (GP)

Abstract

Some aspects of substantive criminal law generate more controversy than others. One of the features of the common-law crime of “housebreaking with the intent to commit a crime” is the possible difficulty of proving what “further intent” the accused harboured upon breaking into premises: what crime did the accused intend to commit within? To assist the prosecutor in this regard, the legislature intervened by extending the ambit of the common-law crime to include not just housebreaking where the “further intent” of the accused could be properly identified, but also housebreaking where the “further intent” of the accused could not be identified. Thus, in terms of the Criminal Procedure Act (51 of 1977), a charge of housebreaking with intent to commit a crime “to the prosecutor unknown” (s 95(12)), and a conviction in these terms (s 262) was established. These provisions have proved very controversial, with De Wet commenting that in providing this statutory extension to the common-law crime, the legislature miraculously created a representation of something that is conceptually impossible.
The common purpose doctrine also provides invaluable assistance to the State in situations where more than one actor has been involved in the commission of a crime, and where it is extremely difficult to ascertain which actor was responsible for which act. Typically, such crimes arise out of mob violence. A strict application of the rules of causation in such circumstances often makes proof of individual perpetrator liability extremely hard to establish. The consequence of the difficulty in establishing a causal link between the actor’s conduct and the harmful result may be lesser liability or even no liability for the harm. The common purpose doctrine (defined below) however provides that where the actors share a common purpose to commit a crime, and act to that end, the conduct of each actor is imputed to each of the other actors. Thus the difficulty with proof of causation is entirely circumvented.

But at what cost? Despite a Constitutional Court judgment to the contrary, Burchell has consistently argued that the common purpose doctrine “is a contradiction of the fundamental rule that the prosecution must prove the elements of liability beyond reasonable doubt and, therefore, an infringement of the presumption of innocence”.
In the case of S v Leshilo (2017 JDR 1788 (GP)), both these controversial aspects – the statutory extension to the housebreaking crime, and the common purpose doctrine – are drawn together, making a consideration of the judgment in this case both instructive and worthy of closer analysis.