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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
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In response to the argument that the doctrine of common purpose violates the right to dignity, the court held that it was fallacious to argue that the prosecution and conviction of a person dehumanises him.27 In further response to this argument, as well as to the argument that the doctrine of common purpose amounted to an arbitrary deprivation of freedom, the court held that ‘the entire scheme of [sections] 35 and 12(1) of the Bill of Rights authorises and anticipates prosecution, conviction and punishment of individuals, provided it occurs within the context of a procedurally and substantively fair trial and a permissible level of criminal culpability’ (emphasis supplied).28 The court thus confirmed its earlier ruling in De Lange v Smuts NO that section 12(1)(a) of the Constitution opens the substantive criminal law to constitutional review,29 in that:
The standard [of criminal culpability] must be constitutionally permissible. It may not unjustifiably invade rights or principles of the Constitution. Put differently, the norm may only ‘impose a form of culpability sufficient to justify the deprivation of freedom without giving rise to a constitutional complaint’. However, once the culpability norm passes constitutional muster, an appropriate deprivation of freedom is permissible.30
Further on, the court amplified this dictum as follows:
[T]he criminal norm may not deprive a person of his or her freedom arbitrarily or without just cause. The ‘just cause’ points to substantive protection against being deprived of freedom arbitrarily or without an adequate or acceptable reason ... The meaning of ‘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’.31
The court went on to hold, however, that the definitional elements for a common law crime are ‘unique to that crime’ and that, whilst common minimum requirements are unlawful conduct, criminal capacity and fault, a causal nexus is not a requirement of
27 S v Thebus (note 1 above) para 36.
28 Ibid.
29 De Lange v Smuts NO 1998 (3) SA 785 (CC) paras 22 - 23.
30 S v Thebus (note 1 above) para 36, citing O’Regan J’s dictum in S v Coetzee 1997 (1) SACR 379 (CC) para 178.
31 S v Thebus (note 1 above) para 39, citing Langa DP’s dictum in S v Boesak 2001 (1) SACR 1 (CC) para 37.
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every crime.32 The court reasoned that, because of this, the mere exclusion of causation as a prerequisite for liability is not ‘fatal to the criminal norm’.33 Despite its earlier dicta to the effect that the standard of criminal culpability must be sufficient to justify the deprivation of freedom, in accordance with the core values and provisions of the 1996 Constitution, it held further that:
There are no pre-ordained characteristics of criminal conduct, outcome or condition.
Conduct constitutes a crime because the law declares it so... Ordinarily, making conduct criminal is intended to protect a societal or public interest by criminal sanction. It follows that criminal norms vary from society to society and within a society from time to time, relative to community convictions of what is harmful and worthy of punishment in the context of its social, economic, ethical religious and political influences (emphasis added).34
The court then ruled that the doctrine of common purpose does not amount to an arbitrary deprivation of freedom, because it is ‘rationally connected to the legitimate objective of limiting and controlling joint criminal enterprise’.35 It held that it serves a
‘vital purpose’, since, without it, persons other than the actual perpetrators of a crime and their accomplices would escape all liability, despite their unlawful and intentional participation in the crime, which would not accord with ‘the considerable societal distaste for crimes by common design’.36 It went on to hold that:
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 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.37
32 S v Thebus (note 1 above) para 37.
33 Ibid.
34 S v Thebus (note 1 above) para 38.
35 S v Thebus (note 1 above) para 40.
36 Ibid.
37 Ibid.
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The court concluded that ‘[t]here is no objection to this norm of culpability even though it bypasses the requirements of causation’.38 The appellants’ argument in this regard was thus found to be without merit.
The court then turned to the argument that, by dispensing with proof of a causal nexus between an accused’s conduct and the criminal result, the doctrine of common purpose lowers the threshold of proof, thereby violating the presumption of innocence.39 It pointed out that the doctrine of common purpose does not amount to a reversal of the normal onus of proof, or to a presumption of guilt, in that the state is still required to prove all the elements necessary to establish liability in terms of the criminal norm established by the doctrine, which (it reiterated) had been found to pass constitutional scrutiny.40 It concluded that a proper application of the doctrine could not result in the conviction of an accused despite reasonable doubt as to his guilt and that, consequently, the doctrine does not violate the presumption of innocence.41
Lastly, the court dismissed the objections, raised by certain commentators,42 that the requirements for active association, as set out in S v Mgedezi and subsequent cases,43 had been cast too widely and/or misapplied, whilst there were less invasive forms of liability available, which did not require the accused’s conviction as a co-principal.44 As regards the first of these objections, it held that criticisms of the doctrine on the grounds that it had been misapplied did not render liability based on active association
38 Ibid.
39 S v Thebus (note 1 above) para 42. At this point, the CC reiterated O’Regan J’s dictum in S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC) para 15: '[T]he presumption of innocence is an established principle of South African law which places the burden of proof squarely on the prosecution... It requires that the prosecution bear the burden of proving all the elements of a criminal charge. A presumption which relieves the prosecution of part of that burden could result in the conviction of an accused person despite the existence of a reasonable doubt as to his or her guilt. Such a presumption is in breach of the presumption of innocence and therefore offends s25(3)(c).'
40 Ibid.
41 Ibid.
42 S v Thebus (note 1 above) para 44. Here the court cited the criticisms offered by the authors Burchell &
Milton (J Burchell & J Milton Principles of Criminal Law 2ed (1997) 393).
43S v Mgedezi (note 8 above); S v Petersen 1989 (3) SA 420 (A); S v Yelani 1989 (2) SA 43 (A); S v Jama 1989 (3) SA 427 (A); Magmoed v Janse van Rensburg 1993 (1) SA 777 (A); S v Motaung 1990 (4) SA 485 (A); S v Khumalo 1991 (4) SA 310 (A); S v Singo1993 (2) SA 765 (A).
44 With respect, the availability of less invasive forms of liability should not have been dealt with at this juncture, but as an integral part of the appellant’s second argument, dealing with the requirement of ‘just cause’ (see note 35 above). As mentioned previously (see note 14 above), it is impossible to tell from the CC’s judgment how the appellants’ arguments were structured, so it is not known whether the fault in this case lies with the court, or in the way in which the appellants’ arguments were structured and presented in the first instance.
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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