108
unconstitutional, but merely highlighted the need for trial courts to ensure that the established requirements were properly applied.45 It did not elucidate the requirements for active association, commenting merely that the ‘factual context of each case’ would determine whether these requirements had been met.46 As regards the objection that there were less invasive forms of liability available, which did not require the conviction of a participant as a co-principal, the court held that this was a proportionality argument, which it would only have been required to consider if the appellant’s complaints had passed the threshold enquiry. Since they had not done so, however, the court was not obliged to consider the point.47 After (quite correctly) declining to sit in judgment on the SCA’s findings of fact in the matter, the court concluded that the doctrine of common purpose, in cases of murder by active association, was not unconstitutional in its existing form and consequently did not require development or reformulation in terms of section 39(2) of the 1996 Constitution. The appeal on this ground was consequently dismissed.48
109
of the judgment’s few critics was Schwikkard, who expressed concern at the Constitutional Court’s willingness to allow the content of the right to freedom to be eroded by instrumental arguments, without engaging in more rigorous analysis of the content of that right and without addressing the question of what the minimum standard of criminal culpability ought to be, in order to avoid depriving a person of his freedom arbitrarily or without just cause.53 The only commentator to engage in extensive criticism of the judgment was Burchell, who incorporates a critique of its salient features into his overall critique of the doctrine of common purpose in his current textbook.54 Although Burchell has identified most of the major flaws in the judgment, it is necessary, for the sake of completeness, to consider the Constitutional Court’s response to the issues raised by the appellants in some depth.
5.1 Ruling on the ‘violation of dignity’ issue
The argument that the doctrine of common purpose undermines the fundamental dignity of each participant, because it ‘de-individualises and de-humanises them’, by treating them ‘in a general manner as nameless, faceless parts of a group’,55 is so far-fetched that it is difficult to believe that it was actually advanced in these terms. Since S v Mgedezi,56 there has been no doubt that, in order to prove the active association form of common purpose, the state must prove individual conduct on the part of each accused, amounting to such association. Furthermore, in cases involving multiple offenders, the court must satisfy itself of the guilt of each individual accused and each accused is entitled to a separate verdict on each count with which he is charged. There is nothing in South African law that permits multiple accused charged with the same crime to be treated ‘in a general manner as nameless, faceless parts of a group’. If this was indeed what the appellants argued, then the Constitutional Court can hardly be faulted for dismissing it out of hand, but the fact that the appellants apparently contended, in support of this argument, that a crime like murder carries a greater stigma than a lesser offence like public violence, conspiracy, incitement, attempt, or accomplice liability,57 seems to
53 P-J Schwikkard ‘Instrumental Arguments in Criminal Law: A Mirage of Tensions’ (2004) 121 SALJ 289, 301-303.
54 Burchell (note 24 above) 580-588.
55 S v Thebus (note 1 above) para 35.
56 S v Mgedezi (note 8 above).
57 Ibid.
110
suggest that they may in fact have been attempting to invoke the principles of culpability and/or fair labelling, both of which are integrally connected with the right to dignity.58 If so, their argument was evidently misunderstood by the court. This, however, is mere conjecture and no purpose will be served by pursuing the point here.
Objections to the doctrine of common purpose based on the principles of culpability and fair labelling will however be examined in the next chapter.
5.2 Ruling on the ‘arbitrary deprivation of freedom’ issue
Of far greater concern is the court’s treatment of the issue of whether the doctrine of common purpose violates of the right to freedom and security of the person. This issue must be viewed in light of section 12(1)(a) of the 1996 Constitution, which provides that ‘[e]veryone has the right to freedom and security of the person which includes the right ... not to be deprived of freedom arbitrarily or without just cause’.59 The threshold analysis for an alleged violation of this right involves two separate determinations, namely (1) whether the deprivation in question was/is ‘arbitrary’; and, if not, (2) whether it was/is for ‘just cause’.60 As regards the first stage of the enquiry, a deprivation of freedom will not be arbitrary if there is ‘a rational connection between the deprivation and some objectively determinable purpose’.61 Provided that there is such a purpose, and the deprivation is causally linked to that purpose, the deprivation
58 It may not have been entirely coincidental that, in the year before Thebus, the constitutionality of the Israeli version of joint criminal enterprise (section 34A of the General Part of the Israeli Penal Law) had been challenged (albeit unsuccessfully) in the Supreme Court of Israel, in Silgado v State of Israel 56(5) PD 529 [2002], on the grounds that it violated the right to human dignity, which (as in South Africa) is explicitly protected in the Israeli Constitution (Israeli Basic Law: Human Dignity and Liberty 1992, art 1A, 2, 4). Firstly, it was argued that human dignity requires that criminal liability be imposed in accordance with the actor’s culpability, whereas section 34A(a)(1) permits the attribution of liability for collateral crimes requiring subjective fault to secondary parties on the basis of negligence. Secondly, it was argued that it was a violation of human dignity for the stigma of murder (the ‘mark of Cain’) to be attached to a person in the absence of subjective fault. The majority of the court (President Barak and Justice Levy) accepted that section 34A does restrict both dignity and liberty, but the challenge failed, because the court found that the limitation was justifiable under Israel’s general limitations clause (art 8).
For further discussion of the judgment, see M Gur-Arye and T Weigend ‘Constitutional Review of Criminal Prohibitions Affecting Human Dignity and Liberty: German and Israeli Perspectives’ (2011) 44 Israel LR 63, 75 and 86-88.
59 It is s12(1)(a), therefore, that requires the substantive criminal law to be constitutionally compliant.
Rights of due process are protected by s12(1)(b), together with s35 of the Constitution.
60 De Lange v Smuts NO 1998 (3) SA 785 (CC) para 23 (per Ackermann J (majority judgment)).
61 Ibid.
111
will not be arbitrary.62 This part of the enquiry therefore sets a very low standard for constitutional compliance,63 however it must then be followed by the second (and clearly more important) stage of the enquiry, which requires the court to determine whether the ‘purpose, reason or “cause” for the deprivation’ is a ‘just’ one.64
Despite the Constitutional Court’s acknowledgement that ‘just cause must be grounded upon and (be) consonant with the values expressed in [section] 1 of the Constitution and gathered from the provisions of the Constitution’,65 it is evident from the judgment that it paid scant attention to this part of the enquiry. In order to justify this criticism, it is necessary, in the first instance, to compare the court’s approach in Thebus with its earlier approach in De Lange v Smuts NO.66 This latter case, which concerned the constitutional validity of committal and detention in terms of section 66(3) of the Insolvency Act,67 was the first in which the provisions of section 12(1)(a) came before the Constitutional Court for consideration.68 Dealing with the question of what would constitute ‘just cause’ for a deprivation of freedom, Ackermann J (who delivered the majority judgment) held that:
It is not possible to attempt, in advance, a comprehensive definition of what would constitute a ‘just cause’ for the deprivation of freedom in all imaginable circumstances. The law in this regard must be developed incrementally and on a case by case basis. Suffice it to say that the concept of ‘just cause’ must be grounded upon and consonant with the values expressed in section 1 of the 1996 Constitution and gathered from the provisions of the Constitution as a whole.69
62 IM Rautenbach ‘The limitation of rights in terms of provisions of the bill of rights other than the general limitation clause: a few examples’ (2001) J of SA Law 617, 631. The ‘rational connection’ test for purposes of s12(1)(a) is therefore not the same test as that for purposes of section 9 of the Constitution (the right to equality) as laid down in Prinsloo v Van der Linde 1977 (6) BCLR 708 (CC) para 25.
63 Rautenbach (note 62 above) 631.
64 De Lange v Smuts NO (note 60 above) para 23.
65 S v Thebus (note 1 above) para 39, citing Langa DP in S v Boesak (note 31 above) para 38.
66 De Lange v Smuts NO (note 60 above), especially Ackermann J’s majority judgment at paras 30-41.
67 Insolvency Act 24 of 1936.
68 The court’s earlier decisions on the right to freedom in Ferreira v Levin 1996 1 BCLR 1 (CC), Bernstein v Bester NNO 1996 (2) SA 751 (CC) and S v Coetzee 1997 (4) BCLR 437 (CC) dealt with s11(1) of the interim Constitution (Constitution of the Republic of South Africa, Act 200 of 1993) and were not, therefore, necessarily applicable in interpreting s12(1) of the 1996 Constitution, which is framed in substantially different terms. De Lange v Smuts NO is consequently regarded as the leading case on the interpretation and application od s12(1)(a) of the 1996 Constitution.
69 De Lange v Smuts NO (note 60 above) para 30.
112
Despite Ackermann J’s unwillingness to define or elaborate on the meaning of ‘just cause’, is evident from what follows in his judgment that, in reaching the conclusion that the requirement of ‘just cause’ was satisfied in the case of the committal and detention of section 66(3) examinees, he considered a number of factors, namely:
1. The purpose of and necessity for committal and detention in terms of section 66(3),70 which he ultimately described as ‘compelling and indispensable’;71
2. The fact that similar provision for detention exists in other comparable jurisdictions and has not been found objectionable;72
3. The fact that no effective but less severe measure exists by which an examinee may be compelled to furnish the required information;73
4. The fact that the means of release are within a detained examinee’s own hands and that procedural safeguards exist to protect persons wrongfully committed or detained;74
5. The fact that the committal mechanism is ‘very closely tailored to its intended purpose and goes no further than is absolutely necessary to achieve its objective’.75
It is noteworthy that, amongst the factors deemed worthy of consideration, were the nature and extent of the limitation, the importance of its purpose, the relationship between the limitation and its purpose, and whether that purpose could be achieved by less restrictive means.76 These are factors that a court is required to consider in performing a limitations enquiry in terms of section 36(1) of the 1996 Constitution (the
70 De Lange v Smuts NO (note 60 above) paras 31-38. Although it is unnecessary for present purposes to recount all the reasons considered by Ackermann J in his judgment, it is noteworthy that they were furnished in specific and detailed terms, occupying a full eight paragraphs of the judgment.
71 De Lange v Smuts NO (note 60 above) para 40.
72 De Lange v Smuts NO (note 60 above) para 39.
73 De Lange v Smuts NO (note 60 above) para 40.
74 De Lange v Smuts NO (note 60 above) paras 40 and 41.
75 De Lange v Smuts NO (note 60 above) para 41.
76 Rautenbach (note 62 above) 632.
113
general limitation clause).77 In essence, therefore, in determining whether the requirement of ‘just cause’ was satisfied in De Lange, Ackermann J chose to perform a proportionality enquiry, very similar to (although less stringent than) that which a court is required to perform for purposes of section 36(1).78
If Ackermann J’s majority judgment in De Lange is to be regarded as having set the standard for a ‘just cause’ enquiry, however, it is evident that Moseneke J’s approach in Thebus failed to measure up to that standard. The latter’s entire treatment of the threshold enquiry for a violation of section 12(1)(a) appears in a single paragraph, the first part of which (the court’s treatment of the ‘arbitrariness’ part of the enquiry) reads as follows:
Common purpose does not amount to an arbitrary deprivation of freedom. The doctrine is rationally connected to the legitimate objective of limiting and controlling joint criminal enterprise.79
The reminder of the paragraph then reads:
[The doctrine] serves vital purposes in our criminal justice system. Absent the rule of common purpose, all but actual perpetrators of a crime and their accomplices will be beyond the reach of our criminal justice system, despite their unlawful and intentional participation in the commission of the crime. Such an outcome would not accord with the considerable societal distaste for crimes by common design. Group, organised or collaborative misdeeds strike more harshly at the fabric of society and the rights of victims than crimes perpetrated by individuals. Effective prosecution of crime is a legitimate, 'pressing social need'. The need for 'a strong deterrent to violent crime' is well acknowledged because 'widespread violent crime is deeply destructive of the fabric of our society'. There is a real and pressing social concern about the high levels of crime. In practice, joint criminal
77 Ibid. Section 36(1) of the 1996 Constitution provides: ‘The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including – (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose’.
78 Rautenbach (note 62 above) 632.
79 Brief though this statement is, the court’s finding is presumably adequate, given the low standard set for constitutional compliance in this particular regard (see note 63 above and accompanying text).
114
conduct often poses peculiar difficulties of proof of the result of the conduct of each accused, a problem which hardly arises in the case of an individual accused person. Thus there is no objection to this norm of culpability even though it bypasses the requirement of causation.80
On first reading, this second passage seems a mere continuation of the first passage cited above (that is, a further elucidation of the court’s ruling on the ‘arbitrariness’
enquiry). Presumably, however, it must be understood as dealing with the second part of the threshold enquiry, namely the requirement of ‘just cause’. This assumption is based on the fact that the ‘just cause’ requirement is not dealt with anywhere else in the judgment, however it is addressed in such cursory terms that it is difficult to say that the court really applied its mind to this part of the enquiry at all. Even accepting that the court’s remarks in the passage cited above must be read in conjunction with its earlier remarks concerning the rationales for the doctrine and the existence of similar doctrines in other comparable jurisdictions,81 it would be evident that its analysis was inadequate in comparison with the considerably more detailed and multi-faceted analysis performed in De Lange.82 It will be observed that, in Thebus, the court focussed exclusively upon the purpose of the limitation and the importance of that purpose from a public interest perspective. It did not, however, consider whether that purpose was a ‘just’ one. It did not consider the relationship between the limitation and its purpose; that is to say, whether the doctrine of common purpose is an appropriate and fitting means for achieving that purpose, or whether it goes further than strictly necessary. Nor did it consider whether the same objective could be achieved equally well by less invasive measures (a point evidently argued by the appellants at some stage during the proceedings).83 Despite the precedent set by the majority judgment in De Lange, the court took the view that such ‘proportionality arguments’ were relevant only to a section 36(1) enquiry and, since it was not performing such an enquiry, it was not obliged to consider them.84 No criticism of the majority approach in De Lange was offered,
80 S v Thebus (note 1 above) para 40.
81 In which, as previously observed, the court omitted to mention that none of the jurisdictions named by the court, save for Scotland, have any equivalent of the ‘active association’ form of common purpose liability (see note 24 above).
82 De Lange v Smuts NO (note 60 above) paras 31-39, discussed above.
83 S v Thebus (note 1 above) para 48.
84 Ibid.
115
however, nor any other explanation for the departure from precedent.85 All of this detracts from the quality of the judgment.86
Most importantly of all, however, as Schwikkard has pointed out, the Constitutional Court did not consider what the minimum standard of criminal culpability ought to be, in order to constitute just cause for depriving a person of his freedom.87 On the contrary, despite its reference to a ‘constitutionally permissible standard’ of criminal culpability,88 the court was able to avoid the (admittedly unenviable) task of deciding what this standard was, by adopting a simple, positivist approach to criminalisation:
‘There are no pre-ordained characteristics of criminal conduct, outcome or condition.
Conduct constitutes a crime because the law declares it so’.89 This statement however confuses legality with justness. Whilst the principle of legality is undoubtedly an indispensable principle for upholding the Rule of Law, legality alone cannot be a sufficient precondition for criminal liability;90 at least not in a constitutional dispensation intended to uphold and protect individual human rights against the so- called ‘tyranny of the majority’.91 If that were so, Parliament could criminalise any conduct it chose and, as long as the resulting provision had some ‘objectively ascertainable purpose’ and was not in direct conflict with some constitutionally protected right other than the right to freedom, the Constitutional Court would be powerless to intervene, regardless of how unjust that provision might be. It is impossible to believe that this is what the framers of the Constitution had in mind.92
85 This raises serious concerns about the protection of the right to freedom and security of the person, however a full discussion of these concerns is beyond the scope of this dissertation.
86 See also Rautenbach’s critique of the judgment on this point (I Rautenbach ‘Regspraak: Constitutional Court and Supreme Court of Appeal Decisions on the Bill of Rights’ (2004) J of SA Law 386, 393).
87 Schwikkard (note 53 above) 301-303.
88 S v Thebus (note 1 above) para 36.
89 S v Thebus (note 1 above) para 38.
90 Further on this point see A Rycroft ‘In the Public Interest’ (1989) 106 SALJ 172, 183.
91 See Schwikkard’s comparison of the positivist approach of the South African courts under the previous constitutional dispensation, with their approach under the present dispensation (Schwikkard, note 53 above, 289-291). See also CP Erlinder ‘Mens Rea, Due Process and the Supreme Court: Toward a Constitutional Doctrine of Substantive Criminal Law’ (1981) 9 American J of Criminal Law 163, 163- 164.
92 As Henry Hart asked, rhetorically: ‘What sense does it make to insist upon procedural safeguards in criminal prosecutions if anything whatever can be made a crime in the first place?’ HM Hart (Jr) ‘The Aims of the Criminal Law’ (1958) 23 Law & Contemporary Problems 401, 431.