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Given the level of attention and criticism generated by the Safatsa judgment, as well as the political milieu in which the case was decided, it was almost inevitable that the AD’s ruling would be challenged in the new constitutional dispensation which emerged during the 1990s. In 2003, therefore, the constitutionality of the active association form of common purpose was challenged in S v Thebus,5 but, perhaps surprisingly (and even disappointingly) for those who had followed the criticisms of the Safatsa judgment, the doctrine was found to pass constitutional muster.
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guard and the second appellant by collecting the spent cartridge cases.7 In accordance with the requirements for common purpose by active association, as set out in S v Mgedezi,8 the court found them guilty as charged and their convictions were upheld by the Supreme Court of Appeal (SCA) on appeal.9
The appellants then appealed to the Constitutional Court, challenging the constitutionality of the doctrine of common purpose.10 They did not attempt to argue that the doctrine of common purpose was unconstitutional in its entirety, but claimed that, in cases of common purpose by active association, it violated their constitutionally- protected rights of dignity, freedom and security of the person, as well as their right to a fair trial, including the right to be presumed innocent.11 They contended that, in light of these violations, and as enjoined by section 39(2) of the 1996 Constitution,12 the SCA ought to have developed the common law beyond existing precedent, so as to give effect to their constitutionally protected rights; in particular, by developing, applying and elucidating the requirements that:
1. There must have been a causal connection between their actions and the crime(s) for which they were convicted;
2. They must have actively associated themselves with the unlawful conduct of those who actually committed the crime(s); and
3. They must also have had the subjective foresight that others in the group would commit the crime(s).13
7 S v Thebus (note 5 above) para 10.
8 S v Mgedezi 1989 (1) SA 678 (A) 702.
9 The SCA’s judgment deals entirely with the trial court’s evaluation of the factual evidence and the appropriateness of the sentences that it imposed. It did not deal with the law relating to common purpose at all and, for that reason, it is unnecessary to discuss the judgement in detail.
10 They also claimed that the adverse inferences drawn by the trial court from their failure to disclose their alibis when first questioned by the police violated their right to silence, however this aspect of the case is not relevant for present purposes and need not be discussed.
11 These rights are protected by sections 10, 12(1)(a) and 35(3)(h), respectively, of the Constitution of the Republic of South Africa 1996 (the 1996 Constitution).
12 Section 39(2) provides that, ‘[w]hen interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights’.
13 S v Thebus (note 5 above) para 23.
103 3. THE ISSUES IN DISPUTE
The essence of the appellants’ complaints regarding the constitutionality of the doctrine of common purpose, as derived from the Constitutional Court’s judgment,14 was as follows:
1. The doctrine of common purpose undermines the fundamental dignity of each person convicted of the same crime with others, because it de-individualises them and de-humanises them by treating them ‘in a general manner as nameless, faceless parts of a group’.15 In support of this argument, it was contended that a crime like murder carries a greater stigma than lesser offences such as public violence, conspiracy, incitement, attempt, or liability as an accomplice, which are competent verdicts or available alternatives to a charge of murder.16
2. The doctrine of common purpose violates the right not to be deprived of freedom arbitrarily,17 because, by dispensing with the requirement of a causal connection between the accused’s actions and the crime of which he may be convicted, it
‘countenances the most tenuous link’ between the individual’s conduct and his resulting liability.18 In the course of this argument, the appellants criticised the concept of liability based on active association, arguing that the requirements for active association had been cast too widely and/or misapplied, whilst, at the same time, there were less invasive forms of liability available, which did not require conviction as a co-perpetrator.19
14 It must be mentioned, at the outset, that it is no easy task to reconstruct the appellant’s arguments from the judgment. The court’s account of these arguments is so brief and fragmented that it is impossible to tell, with any degree of certainty, exactly how the arguments on each issue were structured and presented, or what authority was offered in support of each argument. The account that follows in the text therefore represents the author’s own attempt to introduce some degree of structure and coherence, although some of the arguments (especially the first) sound far-fetched and even nonsensical in the retelling.
15 S v Thebus (note 5 above) para 35.
16 Ibid.
17 Ibid.
18 S v Thebus (note 1 above) paras 33, 35.
19 S v Thebus (note 1 above) para 44.
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3. The doctrine of common purpose violates the presumption of innocence, because it lowers the threshold of proof for a crime and absolves the state from having to prove all its elements beyond a reasonable doubt.20
The appellants argued, finally, that the primary rationale for the doctrine of common purpose, which they cited as ‘convenience of proof in favour of the prosecution’, was insufficient to justify the above violations.21