Although South African law adopted the doctrine of common intention from 19th-century English law, the scope of the doctrine has expanded considerably. Then, possible normative and instrumental justifications for the existence and maintenance of the common purpose doctrine are discussed and evaluated.
RESEARCH METHODOLOGY
This is done in two phases: First, the constitutional court's verdict and rulings on the constitutional issues raised in S v Thebus are analyzed and criticized.14 It is argued that, unlike the constitutional court's findings, the doctrine of common purpose in fact represents a violation of the constitutionally protected right to freedom and security of the person, as well as the right to be presumed innocent.15 Then the question is whether the doctrine of common purpose the constitutionally protected right to dignity (which was not sufficient) violates. ventilated in S v Thebus) is examined anew.16 In this way, the content of the right to dignity, the principles of guilt, fair labeling and proportionality in punishment, and the interconnection between the right to dignity and these principles are examined and clarified. , to justify the conclusion that the doctrine of common purpose, in its current form, in fact violates the right to dignity. Finally, after a summary of the conclusions to be drawn from the above, practical proposals for the reform of the doctrine are presented in order to constitutionally adapt the South African complicity law.
INTRODUCTION
THE CLASSICAL MODELS OF COMPLICITY
The discussion that follows will demonstrate how in South African law the dualistic features of the English legal approach were added to the monistic Roman-Dutch legal approach. However, it will also be shown that, despite the initial acceptance of these dualistic features, South African law has generally favored a monistic approach.
COMPLICITY IN ROMAN-DUTCH LAW
An authorized person was a person who was present when the crime was committed and participated in its commission. Thus, the conspirator would be an accomplice only if he was also present at the time of the crime.
COMPLICITY IN OTHER COMMON LAW JURISDICTIONS
Unlike English law, the Canadian Criminal Code does not require subjective foreseeability of the commission of the collateral crime. Joint and partial liability also includes collateral crimes committed by the other participant(s) in connection with the commission of the main crime, if the commission of the collateral crime was a reasonably foreseeable consequence of the commission of the main crime. 76.
COMPLICITY IN SOUTH AFRICAN LAW
The following chapter will consist of a more detailed discussion of the development of the doctrine of common purpose as per its adoption in South African law. This chapter will focus on the development of the doctrine by the South African courts according to its adoption.
THE NATURE AND EFFECT OF THE DOCTRINE
It is not necessary to show that each party has taken a specific action to achieve the common purpose. According to general principles, there must be a causal connection between the accomplice's assistance and the perpetrator's commission of the crime (my emphasis).
METHODS OF FORMING A COMMON PURPOSE
He must have shown that he shares such a common goal by performing an act related to the behavior of the others. In such cases, presence at the time of the crime is not a condition for liability, nor is active involvement in the commission of the crime.
THE TIME OF FORMATION OF THE COMMON PURPOSE
It was explained how, in Mgxwiti's case, the majority of the court was able to avoid this difficulty by finding that Mgxwiti entered into the common purpose of killing before the deceased sustained her fatal injury or injuries.105 However, Schreiner JA could not agree with this finding. Of course, it must be postulated that the deceased was still alive at the time of the accused's participation, because no civilized legal system would hold a man guilty of murder on the basis of having participated in an assault on a corpse.
DETERMINING THE SCOPE OF A COMMON PURPOSE
If so, that crime is considered to have fallen within the framework of common intent. What Burchell is actually saying, however, is that the scope of the common intent may expand as the commission of the crime progresses.
CONCLUDING REMARKS
Where there is a presence at the scene of the crime, South African law has dispensed with the need for prior conspiracy or actual contribution to the commission of the crime; all that is needed is one-sided behavior that shows solidarity with the behavior of the perpetrators. It would therefore be clear that South African law has vastly expanded the scope of the doctrine, to the point where it now covers a wide range of conduct that would have been, or perhaps would have been, considered ancillary in nature in English law no liability is accepted at all.
THE NATURE OF ACCOMPLICE LIABILITY
There must be a causal connection between the accomplice's assistance and the commission of the crime by the perpetrator. 5. What was allegedly required was a causal connection between the actions of the accomplice and the commission of the offense by the perpetrator(s).
THE MENS REA OF AN ACCOMPLICE
It was explained that the doctrine of common purpose rests on a fiction, derived from English law, whereby the conduct of the principal actor is imputed to secondary participants. However that may be, its place in our law must be that of an application of the doctrine of tacit mandate.
NORMATIVE JUSTIFICATIONS
However, as with the other analogies, this would not justify the attribution of such actions to minor and insignificant participants, whose actions had no influence whatsoever on the commission of the crime by the main actor. It has been shown that there are indeed defensible normative justifications for imputing a principal actor's actions to secondary participants in terms of the doctrine of common purpose.
INSTRUMENTAL JUSTIFICATIONS
The law's moral credibility is enhanced when the distribution of punishment it prescribes is consistent with society's own shared intuitions about justice. When the law is perceived as "doing justice," assigning responsibility in proportion to the moral blameworthiness of the punished offender, it becomes more effective in controlling crime.
FEINDSTRAFRECHT
In this chapter, it has been shown that there are normative justifications for a limited application of the common purpose doctrine. Therefore, the next chapter will consist of a detailed analysis and critique of the parts of the judgment dealing with the doctrine of common purpose.
THE FACTS OF THE CASE
Accordingly, in 2003, the constitutionality of the active form of common purpose association was challenged in S v Thebus,5 but, perhaps surprisingly (and even disappointingly) to those who had followed the criticisms of the Safatsa judgment, the doctrine was found to pass. constitutional assembly. Appellants argued, finally, that the primary rationale for the doctrine of common intent, which they cited as "prosecution evidence," was insufficient to justify the above violations. 21.
THE JUDGMENT
The meaning of 'just cause must be based on and (be) consistent with the values expressed in [section] 1 of the Constitution and gathered from the provisions of the Constitution'. 31. Since they had not done so, however, the court was not bound to consider the case.47 After (correctly) declining to rule on the SCC's findings of fact in this case, the court concluded that the doctrine of intent common, in cases of murders by active association, was not unconstitutional in its existing form and therefore did not require development or reformulation in terms of Article 39(2) of the 1996 Constitution.
COMMENTARY ON THE JUDGMENT
Even if it is incorrect to accuse the Constitutional Court of dealing with "just cause". Cameron J accordingly concluded that section 130(1) effectively infringed the right to the presumption of innocence, although after conducting an inquiry in terms of section 36(1) he found that the restriction on the right was a reasonable and justified restriction. of the article of the constitution.
THE RIGHT TO DIGNITY
Thus, the recognition and protection of human dignity is a measure of the new political order and is the foundation of the new constitution." See also S Hoctor "Dignity, Criminal Law and the Bill of Rights SALJ 304, 304. Respect for human dignity requires the recognition of intrinsic (and thus inalienable) value and moral values of each individual.
THE RIGHT TO DIGNITY AND THE SUBSTANTIVE CRIMINAL LAW
Due to the priority given to the right to dignity in the German constitution51, German criminal law, on the other hand, strictly follows the principle of guilt. 56 Sections 15 and 16 of the Criminal Law (Sexual Offenses and Related Matters) Amendment Act 32 of 2007; see The Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development 2013 (12) BCLR 1429 (CC).
DIGNITY AND THE DOCTRINE OF COMMON PURPOSE
85 However, it would not be correct to think that recognition of the principle of fair labeling has been entirely limited to the UK. Therefore, it would be clear that the principle of fair labeling derives from the recognition of the importance of the penal or denunciatory function of the criminal law, which in turn has important implications for the personality rights of the offender.
CONCLUDING REMARKS
It is possible that these were the points the appellants were trying to make in their first argument in the case of S v Thebus.107 If so, it is a shame that they were not made more effective or taken more seriously by the Constitutional Court .
SUMMARY OF FINDINGS AND CONCLUSIONS
a conspirator who also induces (provides or otherwise permits) the execution of a criminal act by the actual perpetrator; 23. Proposals to reform the common purpose doctrine tend to raise two types of practical concerns.
CONCLUDING REMARKS
Burchell J & Milton J Principles of Criminal Law 2ed (South Africa, Juta: 1997) Burchell J Cases and Materials on Criminal Law 3ed (South Africa, Juta: 2007) Burchell J Principles of Criminal Law 3 ed (South Africa: 2007). Juta: 2005) ). Clarkson CMV Understanding Criminal Law 4th (VK, Sweet & Maxwell: 2005) De Wet JC and Swanepoel HC Criminal Law 3rd (South Africa, Butterworths: 1975).
