A NEW CATEGORY OF COMMON PURPOSE LIABILITY?

Abstract

Common purpose liability remains a controversial aspect of the principles of criminal liability in South African law, despite the doctrine passing constitutional muster in S v Thebus (2003 (2) SACR 319 (CC)). 
This definition was most recently set out in the latest edition of Burchell’s Principles of Criminal Law (5ed (2016) 477). It is clear from the definition that the common purpose doctrine can apply in two scenarios: first, where there is a prior agreement between persons to commit a crime, and secondly, where there is an intentional active association with the commission of the crime. Where either of these situations can be established on the facts of the case, it is not necessary for the State to prove a causal contribution on the part of all of those involved in the criminal conduct, since the conduct of the individual who caused the consequence is imputed to all the others who are involved. 

It has been suggested that these requirements apply equally to all cases that involve common purpose, but that they are “more or less self-evident in cases where there is a prior conspiracy”. However, as Snyman points out, there are important distinctions between the two forms of common purpose liability. Thus where reliance is placed on a prior agreement or conspiracy, as opposed to active association, proof of agreement with a general common design (rather than association with a specific act) will suffice for liability. Moreover, with regard to the prior agreement form, presence at the scene of the crime is not required, and it is further not required that the accused actively associated himself with the actual commission of the crime at the time of its commission. In the fourth edition of Burchell, the author introduces an entirely new understanding of the operation of the common purpose doctrine, in explaining the judgment in the case of Mzwempi. Burchell’s discussion is worthy of consideration. My interest is not merely personal ‒ Burchell disagrees with my own interpretation of the judgments in Nzo and Mzwempi – but because adopting this understanding would change the way we view the common purpose doctrine.