CRW2602 Study Guide 2010 PDF

# 2010 University of South Africa All rights reserved Printed and published by the University of South Africa Muckleneuk, Pretoria CRW2602/1/2011–2013 98631349 3B2 Cover: ‘‘For the defense’’ pen and ink sketch by Honoré Daumier (1810–1879), French painter and caricaturist. CRW-Style III CONTENTS INTRODUCTION – LITERATURE AND METHODS OF STUDY......................................................... vi PART 1: Remaining topics from general principles 1 Participation I: Introduction and perpetrators................................................................... 2 Background............................................................................................................................................ 3 Introduction........................................................................................................................................... 3 Perpetrators............................................................................................................................................ 6 2 Participation II: Accomplices and Accessories after the fact........................................... 20 Background............................................................................................................................................ 21 Accomplices........................................................................................................................................... 21 Accessories after the fact..................................................................................................................... 23 3 Attempt, conspiracy and incitement................................................................................. 27 Background............................................................................................................................................ 28 Attempt.................................................................................................................................................. 28 Conspiracy............................................................................................................................................. 36 Incitement............................................................................................................................................... 38 PART 2: Specific crimes Crimes against the state and the administration of justice 4 Specific crimes – Introduction Crimes against the state................................................................................................... 44 Specific crimes – Introduction............................................................................................................ 45 Crimes against the state...................................................................................................................... 45 5 Crimes against the administration of justice................................................................... 49 Perjury at common law....................................................................................................................... 50 Statutory perjury................................................................................................................................... 52 Defeating or obstructing the course of justice................................................................................. 52 Contempt of court................................................................................................................................ 53 Crimes against the community 6 Crimes against public welfare.......................................................................................... 64 Introduction........................................................................................................................................... 66 Corruption............................................................................................................................................. 66 IV Extortion................................................................................................................................................. 77 Drug offences........................................................................................................................................ 79 Unlawful possession of firearms or ammunition............................................................................ 85 7 Sexual crimes................................................................................................................... 92 Introduction........................................................................................................................................... 94 Rape........................................................................................................................................................ 95 Sexual assault, compelled sexual assault and compelled self-sexual assault............................. 102 Sexual offences against persons 18 years or older.......................................................................... 108 Incest....................................................................................................................................................... 108 Bestiality................................................................................................................................................. 109 Sexual offences against children........................................................................................................ 110 Sexual offences against mentally disabled persons........................................................................ 115 Failure to report sexual offences against children and mentally disabled persons.................. 115 Trafficking in persons for sexual purposes...................................................................................... 116 Attempt, conspiracy and incitement................................................................................................. 116 8 Bigamy and abduction.................................................................................................... 120 Background............................................................................................................................................ 121 Bigamy.................................................................................................................................................... 121 Abduction.............................................................................................................................................. 121 Crimes against the person 9 Crimes against life and potential life............................................................................... 128 Background............................................................................................................................................ 129 Murder.................................................................................................................................................... 129 Culpable homicide................................................................................................................................ 131 10 Crimes against bodily integrity........................................................................................ 132 Assault.................................................................................................................................................... 133 Pointing of a firearm............................................................................................................................ 138 11 Crimes against dignity, reputation and freedom of movement....................................... 144 Crimen iniuria........................................................................................................................................ 144 Criminal defamation............................................................................................................................ 150 Kidnapping........................................................................................................................................... 150 Crimes against property 12 Theft.................................................................................................................................. 154 13 Robbery and receiving of stolen property........................................................................ 170 Robbery.................................................................................................................................................. 171 Receiving stolen property................................................................................................................... 175 14 Fraud and related crimes.................................................................................................. 178 Fraud...................................................................................................................................................... 179 Forgery and uttering........................................................................................................................... 183 Theft by false pretences...................................................................................................................... 183 V 15 Crimes relating to damage to property............................................................................ 187 Background............................................................................................................................................ 188 Malicious injury to property.............................................................................................................. 188 Arson...................................................................................................................................................... 189 16 Housebreaking with intent to commit a crime................................................................. 191 VI INTRODUCTION Literature and methods of study Contents General vi Course outcomes vii Literature vii. Prescribed books. Recommended books. Use of prescribed books. Other works on criminal law Method of study viii. Subdivision of study material in study guide. Contents of study units. What the icons represent. Important advice on how to study. Remarks concerning the specific crimes. Abbreviations. Language: equal treatment of genders 1 GENERAL Welcome to the second module in Criminal Law. We trust that you will enjoy your study of this module. Whereas the first module (CRW2601) deals only with the general principles of criminal law, this second module deals mainly with the specific crimes. It is important to note that a study of this module (CRW2602) presupposes knowledge of the content of the CRW2601 module. Therefore, if you have registered for both these modules, you should first master the general principles of criminal law (as set out in CRW2601) before you make a study of the specific crimes discussed in this module. This is also why the assignment that you have to do for this module must be handed in a little later in the semester than for the CRW2601 module. Although the first module deals only with the general principles of criminal law, there are two topics dealing with the general principles which were not discussed in the first module. These topics are participation in crime and liability for attempt. There was not enough room in the first module to discuss these two VII topics as well. These topics will accordingly be discussed in the second module. The rest of the second module will be devoted to a discussion of the most important specific crimes in our law. 2 COURSE OUTCOMES This course ought to enable you to. classify, and distinguish between, the various categories of persons who may be involved or implicated in the commission of a crime. determine whether a person has committed one or more specific crimes (complete or incomplete) by measuring the person’s conduct and state of mind against the various elements of the specific crime or crimes 3 LITERATURE. Prescribed books There are two prescribed books for this course, namely: (1) Snyman CR Criminal Law 5 ed (2008) Butterworths LexisNexis (2) Snyman CR Strafreg-vonnisbundel/Criminal Law Case Book 4 ed (2008) Juta The same books that are prescribed for the first module in Criminal Law are prescribed for this module.. Use of prescribed books We wish to emphasise the fact that students are expected to read more than merely the study guide and that they should consult the prescribed book on a specific topic. When reading this study guide, you may find that you do not clearly understand certain aspects of a particular topic. It is then essential that you consult the prescribed textbook on the matter. For the purposes of the examination, you should, however, use the study guide as your primary source, except in respect of those topics which are not discussed in the study guide but only in the prescribed work. Take note that certain topics that you must know for the examination are not discussed in the study guide, but only in the prescribed book. The topics which are not discussed in the study guide, but which we expect you to study from the prescribed book, will be pointed out to you. A serious warning, though: Do not think that, because these crimes are not discussed in the study guide, you can afford to ignore them (ie, not study them from the prescribed book). You should know the topics to be studied only from the prescribed book just as well as the topics that are discussed in the study guide. In the examination, we may ask questions on the topics which have to be studied from the prescribed book. When studying a topic from the prescribed book, you need take note only of the text itself, that is, you need not also consult, study or read the footnotes as well, unless we draw your attention to one or more footnotes.. Other works on criminal law Apart from the works already mentioned above, there are also a number of other VIII works on criminal law. We merely draw your attention to the following four works: (1) Burchell J & Milton J Principles of Criminal Law 3 ed by J Burchell (2005) Juta (Revised 2008) (2) Milton JRL South African Criminal Law and Procedure Vol II: Common-Law Crimes 3 ed (1997) Juta (3) Burchell EM & Hunt PMA South African Criminal Law and Procedure Vol I: General Principles of Criminal Law 3 ed by Burchell JM (1997) Juta (4) De Wet JC & Swanepoel HL Strafreg 4 ed (1985) by De Wet JC Butterworths You need not buy any of these books. Neither are they recommended works. 4 METHOD OF STUDY. Subdivision of study material in study guide You will notice that the discussion of the material in the study guide is subdivided into 16 study units. A study unit is a unit or part of the syllabus which deals with a certain topic. You can divide the time you have at your disposal for studying this module into 16 time units and then study one study unit per such time unit.. Contents of study units Every study unit is normally subdivided into: (1) a table of contents of the material discussed in the study unit (2) a list of study objectives you should keep in mind when studying the study unit (3) a short paragraph serving as an introduction or background to the discussion which follows (4) the actual exposition of the topic covered in the study unit (5) a concise summary of the most important principles as set out in the topic of that particular study unit (6) a number of ‘‘test yourself’’ questions Apart from the above you may, in the course of the discussions, find diagrams setting out certain subdivisions of the material, as well as illustrations of certain situations or sets of facts dealt with in the discussions. The short list of study objectives mentioned under (2) above contain some of the most important aims you should keep in mind when studying that particular study unit. However, it is important to remember that, for the examination, you must know the whole contents of the study guide, as well as the discussions of those topics not dealt with in the study guide but only in the prescribed book. Although the ‘‘study objectives’’ refer to the most important aspects of a particular topic, it is not always possible to refer in this list to each and every statement, rule, principle or application of a rule found in the exposition of the particular topic. It is therefore perfectly possible that we may ask a question in the examination which is not covered in every respect by one of the study objectives listed. You should therefore ensure that you know everything in the study guide (or in the relevant portions of the prescribed book) for the examination. IX. What the icons represent An icon is a small picture or other graphic symbol which conveys a certain message. We use the following icons in this study guide: This icon means: ‘‘Beware of the following typical mistake often made by students!’’ This icon means: ‘‘Note the following hint or advice on how to study a certain part of the material or how to answer a question in the examination!’’ This icon means: ‘‘Read the judgment in the following court case which appears in your case book (one of the prescribed books you must buy).’’ If a sentence or sentences are printed against a grey (‘‘coloured’’) square background (also called a ‘‘screened block’’), the sentence or sentences contain a definition which you should know so well that you will be able to write it down in the examination. As far as the third icon above (the open book) is concerned, you must bear in mind that the reading of certain cases (judgments) forms part of your studies. (As a matter of fact, it forms part of the study of all legal subjects.) In the course of our discussion of criminal law we will draw your attention to the cases you must read. In Tutorial Letter 101 you will also find a list of the cases you must read. The last icon (the screened block) refers to the definitions you should know for the examination because we expect you to know the definitions of certain concepts and crimes for the examination. These definitions usually consist of only one sentence (although the sentence may, admittedly, sometimes be rather long). By ‘‘know’’ we mean that you must be able to give us the definition in the examination substantially as it appears in the study guide. The best way would be to try and memorise the definition, but you are free to give us your own version of it. However, experience has taught us that students who do not memorise the definition but who paraphrase it, often lose marks because of deficiencies in their version of the definition. To assist you in identifying the definitions which you should know for the examination (as explained above), we have ‘‘screened’’ them so that they ‘‘stand out’’. We shall therefore not warn you repeatedly that you should know certain definitions well for the examination. You should just watch out for the ‘‘screened frame’’: you must be aware that you should know the definition appearing in the frame so well that you will be able to give it in the examination.. Important advice on how to study At the risk of preaching to the converted we are taking the liberty of giving you a short ‘‘curtain lecture’’.. Students of criminal law are sometimes inclined to underestimate the subject, because it deals with human actions which are concrete and often spectacular, such as stealing, killing, raping, kidnapping, destroying. We wish to warn you against underestimating the subject. Some of the concepts of criminal law are among the most difficult in the field of law. Do not think that because you happen to read regularly of murder, rape, robbery or other crimes in the newspapers, you can afford to read the study guide only superficially, and to rely in the examination only on the type of broad general knowledge which the X person in the street who regularly reads newspapers would have of criminal law.. Try to understand the principles of criminal law, such as retribution, causation, private defence, intention or accomplice liability, so that you can apply them to concrete cases. Merely memorising page upon page of the study guide without understanding the principles underlying the topics discussed, is of little use. Only a proper understanding of the basic principles will enable you to answer the so-called ‘‘problem-type’’ questions satisfactorily in the examination. (A ‘‘problem-type’’ question is one in which you are not asked directly to discuss a particular topic, but in which we give you a set of facts and expect you to state whether one of the persons mentioned in the set of facts has committed a particular crime or whether he or she can rely on a particular defence. You must also be able to substantiate your answers.). Furthermore, an old but sound piece of advice is that you do not move on to a new principle before you have mastered the preceding one on which it is based.. We advise you to make your own notes or summaries (perhaps even in ‘‘telegram’’ style) while studying the specific topics.. Although it is important that you understand the principles underlying a particular topic, a knowledge of the principles (or framework of a topic) only is insufficient if you are unable also to state some particulars regarding the principle (such as illustrations of its application, the authority on which these principles are based, or possible exceptions thereto).. Students often ask us how important it is to remember the names of cases. Let us clarify this matter: It would be an impossible task to memorise the names of all cases referred to in your lectures, and we do not expect you to do so. However, it is a fact that decisions count among a law student’s best friends, and since it is a good policy not to forget the names of one’s best friends, we would advise you to concentrate on remembering the names of the most important, leading cases. As we progress through the course, we shall draw your attention to some of the most important decisions. You are also advised to underline the names of cases when referring to them in the examinations. This will help the examiner to follow your submissions. However, please do not waste any valuable time attempting to memorise the case references (eg 1966 (2) SA 259 (A)). This is absolutely unnecessary. Even if you fail to remember the name of an important case in the examination, you can simply state: ‘‘It has been decided’’ or ‘‘According to a decision’’, et cetera. Our primary aim in the examination is not to test your memory, but your comprehension and insight – but do bear in mind that proper comprehension and insight are also based on a knowledge of facts.. In the course of the year, we will be issuing a number of tutorial letters. Please bear in mind that these tutorial letters form an important part of the study material which you are required to master and, in fact, may even amend the study guide. Therefore do not ignore tutorial letters.. We wish to warn you not to neglect the last portions of the study guide. We often find that in the examination, students do reasonably well in questions dealing with topics which are discussed in the first part of the study guide, but often prove to have only a very superficial knowledge, or none at all, of topics discussed towards the end of the study guide. You must study the whole of the study guide – including topics which are discussed at the end. Crimes such as theft, robbery and fraud, which are discussed towards the end of the study guide, are amongst the most important specific crimes. Your knowledge of some of these last topics may make the difference between failing and passing the examination! XI. Remarks concerning the specific crimes There are so many specific crimes that we shall eventually study only a few of them. Most of them are common-law crimes, that is, those crimes that are not created by statute but that have existed for countless centuries and have been recognised as crimes from generation to generation to the present day. Examples of such crimes are murder, culpable homicide, assault, robbery and theft. We shall, however, also deal with certain statutory crimes. Owing to the very broad scope of our subject, we are sometimes obliged to deal very concisely with some of the doctrines and crimes. Later in this module the crimes of murder and culpable homicide will be dealt with. In the first parts of this module, these two crimes are referred to at times as examples, to illustrate the general principles. The particular reason for this is that the distinguishing factors between these two crimes are intention and negligence, and these two crimes are used to illustrate the difference between crimes requiring intention, and those crimes for which negligence is required. To follow the discussion of the general principles from the beginning, it is therefore necessary to know what the definitions of these two crimes are. Murder is the unlawful, intentional causing of the death of another human being. Culpable homicide is the unlawful, negligent causing of the death of another human being. The only difference between these two crimes is therefore that, whereas intention is required for the one, negligence is required for the other.. Abbreviations — When, in the course of this study guide, we refer to your prescribed textbook, that is Snyman’s Criminal Law, we shall identify this book merely as Criminal Law. If we refer to the prescribed case book, we shall indicate this book merely as Case Book. In this study guide all references to Criminal Law are to the fifth edition of this book (2008). — With regard to the mode of citation of cases, the following method is applied. In accordance with modern usage, we do not cite the full official names of cases, for example S v Williams en ’n Ander 1970 (2) SA 654 (A), but simply the name, followed by the case reference Williams 1970 (2) SA 654 (A). This is the modern ‘‘streamlined’’ method. — In the discussions which follow, we shall often refer to the perpetrator or accused simply as X, and to the complainant or victim of the crime as Y. — We may use the words ‘‘supra’’ and ‘‘infra’’. ‘‘Supra’’ means ‘‘above’’ and ‘‘infra’’ means ‘‘below’’.. Language: equal treatment of genders In our discussions in the guide, we try to adhere to the principle of equal treatment of the genders. We do this in the following way: In study units beginning with even numbers, the female form is used, while in all study units beginning with odd numbers, the male form is used. There are necessarily certain exceptions to the rule. In cases such as the following, we do not change the genders: first, in the descriptions of sets of facts in reported decisions; secondly, where we quote legislation (which is mostly drawn up in the masculine form) directly; and, thirdly, in the explanatory notes to existing drawings (which, for practical reasons, unfortunately cannot be changed) depicting males. PART 1 REMAINING TOPICS FROM GENERAL PRINCIPLES 2 STUDY UNIT 1 Participation I: Introduction and perpetrators Contents Learning outcomes 2 1.1 Background 3 1.2 Introduction 3 1.2.1 Classification of persons involved in a crime 1.2.2 Definitions of a perpetrator and an accomplice 1.2.3 Distinction between perpetrator and accomplice explained 1.3 Perpetrators 6 1.3.1 Co-perpetrators: unnecessary to identify principal perpetrator 1.3.2 Co-perpetrators: difference between direct and indirect perpetrator irrelevant 1.3.3 Being a perpetrator of murder in terms of the general principles of liability 1.3.4 Being a perpetrator of murder by virtue of the doctrine of common purpose 1.3.5 Joining in 1.3.6 The most important principles relating to common purpose Summary 18 Test yourself 19 LEARNING OUTCOMES When you have finished this study unit, you should be able to demonstrate your understanding of the principles relating to participa- tion by 3 — distinguishing between a perpetrator and an accomplice — expressing an informed opinion whether an accused can be held liable as a perpetrator, be it according to the general principles of criminal liability or by virtue of the operation of the doctrine of common purpose — recognising a joining-in situation and determining the liability of the joiner-in 1.1 BACKGROUND In the discussion thus far, we have assumed that only one person has acted. However, it is well known that criminals do not always act on their own, but often together with others. In this study unit, we are going to set out the principles applicable where more than one person is involved in the commission of a crime. Consider the following set of facts: two people, whom we will call X and Z, decide to rob a café. X walks into the café, threatens the owner with a revolver, and, in this way, succeeds in getting possession of the money in the till. Z never goes into the café, but stands guard outside, in order to warn X should he see the police coming. Nobody will deny that X has committed robbery. The question, however, is whether Z can also be convicted of the robbery. If Z is charged with robbery, can he allege that he cannot be convicted of the crime because he was never even inside the café, never handled the revolver and never even touched the money? It is questions such as these that we will discuss in this study unit. Since the subject of participation is too long to discuss in one study unit, we will spread it over two study units. In this study unit, we will discuss the classification of the different persons involved in a crime, as well as perpetrators. In the next study unit, we discuss accomplices and accessories after the fact. 1.2 INTRODUCTION 1.2.1 Classification of persons involved in a crime (Criminal Law 257–260) We begin by classifying, into various categories, those persons who may be involved with, or implicated in, the commission of a crime. We shall first set out the classification in a diagram and then discuss the different categories of persons. Persons involved in a crime ! ! Participant(s) Non-participant(s) ! ! ! Perpetrator(s) Accomplice(s) Accessories after the fact STUDY UNIT 1 4 Participation I: Introduction and perpetrators The term ‘‘persons involved in a crime’’ is used as a general, collective denominator for all the persons, or groups of persons, involved in the commission of the crime (whether they furthered the commission of the crime or not) and who, consequently, can be charged in connection with the commission of the crime. ‘‘Person involved in a crime’’ is not a legal term at all. No-one is charged or convicted as a ‘‘person involved’’ in the commission of a crime. It is merely a convenient phrase which we use in order to explain our classification of criminals into different groups. Persons involved in the crime can be subdivided into two broad categories, namely persons who participate and persons who do not participate. A person involved who participates is briefly described as a ‘‘participant’’. A participant is anyone who does something, in whatever manner, whereby he furthers the commission of the crime. On the other hand, a person involved who does not participate is someone who, although he can be described as being involved in the crime, does not further the commission of the crime at all. There is only one group of persons that will fall into this category, namely accessories after the fact. An accessory after the fact is someone who, after the crime has already been completed, learns about the crime for the first time and then does something to protect the perpetrators of the crime or to help them to escape criminal liability for their acts. The best example of an accessory after the fact is the person who, after a murder has been committed, helps the murderers to dispose of the body by, for instance, throwing it in a river with a stone tied around its neck. An accessory after the fact cannot be a participant, because his act does not amount to a furthering of the commission of the crime. After all, one cannot further a crime if the crime (like the murder in the above-mentioned example) has already been committed. In the next study unit, we shall return to the accessory after the fact and shall deal with his liability in greater detail. First, however, we shall consider the participant and note the various kinds of participants. The category of persons known as ‘‘participants’’ can, in turn, be divided into two subcategories, namely perpetrators and accomplices. The distinction which is drawn between perpetrators and accomplices is of the utmost importance and you must make sure that you understand it properly. 1.2.2 Definitions of a perpetrator and an accomplice Definition of a perpetrator A person is a perpetrator if (1) his conduct, the circumstances in which it takes place (including, where relevant, a particular description with which he as a person must, according to the definition of the offence, comply), and the culpability with which it is carried out are such that he satisfies all the requirements for liability contained in the definition of the offence OR (2) if, although his own conduct does not comply with that required in the definition of the crime, he acted together with one or more persons and the 5 conduct required for a conviction is imputed to him by virtue of the principles relating to the doctrine of common purpose Do not feel discouraged if you do not understand these definitions immediately. When reading them for the first time, they will probably strike you as very involved. However, as you proceed with your study of this study unit, these definitions will become clearer. The doctrine of common purpose mentioned in part (2) above will be discussed in some detail below. The crucial words in the definition (ie, the words which an examiner is always looking for when he marks the examination papers!) are, in part (1), conduct, circumstances and culpability... satisfies all requirements in definition, and, in part (2), imputed... doctrine of common purpose. Definition of an accomplice A person is an accomplice if, (1) although he does not comply with all the requirements for liability set out in the definition of the crime, and (2) although the conduct required for a conviction is not imputed to him in terms of the doctrine of common purpose, he engages in conduct whereby he unlawfully and intentionally furthers the commission of the crime by somebody else. The crucial words in this definition are: not comply with definitions, conduct not imputed in terms of the doctrine of common purpose, furthers crime. 1.2.3 Distinction between perpetrator and accomplice explained To determine whether someone is a perpetrator, one must first look at the definition of the particular crime and, secondly, consider whether the accused’s conduct, state of mind and characteristics comply in all respects with the definition. Murder is the unlawful, intentional causing of the death of another person and anyone who, in whatever manner, unlawfully and intentionally causes the death of another person is a perpetrator of the crime of murder. Some crimes can only be committed by people complying with a certain description. For example, high treason can only be committed by a person owing allegiance to the Republic of South Africa. A crime may also be defined in such a way that it can only be committed by a person who has a certain occupation (eg a medical doctor) or only by somebody who is the holder of a certain licence. What is the position if somebody does not comply with such a description (ie, to owe allegiance, to be a medical doctor or to be the holder of a certain licence), but nevertheless commits an act whereby he furthers the commission of a crime by somebody who does comply with such a description? The answer is that such a person is an accomplice, for the following reason: because he does not comply with the particular description, he cannot be brought within the definition of the crime, but he nevertheless commits an act whereby he furthers the commission of the crime by somebody else. STUDY UNIT 1 6 Participation I: Introduction and perpetrators If a court convicts somebody of a crime without explicitly specifying that he is convicted of being an accomplice to the crime, it normally means that he is convicted as a perpetrator (or co-perpetrator). 1.3 PERPETRATORS (Criminal Law 260–272) 1.3.1 Co-perpetrators: where there is more than one perpetrator, it is unneccesary to identify a principal perpetrator We have seen that a person is a perpetrator if (briefly stated) he complies with all the requirements for liability in the definition of the crime, or if the act of somebody else who is a perpetrator is imputed to him in terms of the common- purpose doctrine. There is no rule in our law stipulating that, where more than one person jointly commit a crime, there can only be a single perpetrator, and that the others who aid in the commission of the crime invariably belong to another category. Where there is more than one participant or perpetrator, it is not always possible to select one as the principal offender. There is no criterion by which one can in every case satisfactorily identify such a principal offender. In certain cases, a principal offender may be identified, and such a person is then referred to in our legal terminology as a principal offender, but the distinction between a principal offender and other perpetrators is not important for the purposes of liability. (However, it can be of great importance in the assessment of punishment.) Where several persons commit a crime together, and their conduct, state of mind and characteristics all comply with the definition of the crime, each one of them is a co-perpetrator. A co-perpetrator does not belong to any category other than that of a perpetrator. Two persons may act in such a way that each contributes equally to the crime, as where A takes the victim by the arms, B takes him by the legs, and, together, they throw him over a precipice. One co-perpetrator’s contribution may be more or less than that of the other, as where A enters a house and shoots and kills Y while B merely keeps guard outside the house. (This happened in Bradbury 1967 (1) SA 387 (A).) Both are nevertheless co-perpetrators in the commission of the murder, if the conduct of both can be described as the unlawful, intentional causing of the death. That one is a perpetrator in no way detracts from the fact that the other is also a perpetrator. 1.3.2 Co-perpetrators: difference between direct and indirect perpetrator irrelevant Sometimes, a distinction can be drawn between a direct and an indirect perpetrator.. A direct perpetrator is a perpetrator who commits the crime with his own hands or body.. An indirect perpetrator does not commit the crime with his body, but makes use of somebody else to commit the crime. For instance, X hires Z to murder Y. If Z executes the assignment and he himself fires the shot at Y, killing Y, Z is the direct perpetrator, whereas X is the indirect perpetrator. 7 The distinction between a direct and an indirect perpetrator is of no significance for the purposes of determining liability. Both X and Z in the above example are guilty of murder as (co-)perpetrators, because the conduct of both falls within the definition of murder: the conduct of both amounts to the (unlawful and intentional) causing of another’s death. In the eyes of the law, Z is nothing but an instrument with which X commits the crime. In the examinations, students are sometimes asked to explain the difference between a perpetrator and an accomplice. In answering this question, students often make the mistake of writing that a perpetrator is a person who commits the crime with his own hands, whereas an accomplice is somebody who does not commit the crime with his own hands. Such a statement is wrong, because a person can be a perpetrator even if he uses another to do his ‘‘dirty work’’ for him, as explained in the above example of the hired assassin. 1.3.3 Being a perpetrator of murder in terms of the general principles of liability It is clear from the above definition of a perpetrator that there are two possible grounds upon which a person may qualify as a perpetrator. The first ground is set out in part (1) and the second in part (2) of that definition. We now consider the first ground. One may refer to this first ground as ‘‘being a perpetrator in terms of the general principles of criminal liability’’, because the question here is merely whether X’s act, the circumstances in which it takes place and his culpability are such that they all comply with the definition of the crime. When applying part (2) of the definition, which we shall explain later, one in fact applies a special, additional doctrine, that is a doctrine or rule additional to the ordinary principles of liability. If two or more persons decide to murder Y, it is unnecessary, in order to hold all of them liable as co-perpetrators, that each of them must have stabbed or shot Y. They do not even each have to touch Y or even be present at the scene of the murder. People such as the person who stands guard, who issues the order or who drives the motorcar may qualify as (co-)perpetrators simply by applying the ordinary principles of liability. Their conduct and culpability comply with the require- ments for liability set out in the definition of the crime. (The definition of murder is: the unlawful, intentional causing of another’s death.) Their conduct is, of course, unlawful (ie, not covered by a ground of justification) and intentional, but what is important to bear in mind is that their acts also amount to a causing of Y’s death. The test for causation is wide enough to lead to the conclusion that the acts of all of them qualify as a cause or co-cause of Y’s death. But for their acts, Y would not have died, and therefore the act of each of them – like the act of the person who presses the knife into Y’s chest or who pulls the gun’s trigger – is a conditio sine qua non for Y’s death. As far as the general principles of criminal liability are concerned, causation will be established if both factual causation and legal causation are proved. It goes without saying that a passive spectator to a deed of murder cannot be held liable as a co-perpetrator (compare the position of accused number 4 in Williams 1980 (1) SA 60 (A) and see Mbanyaru 2009 (1) SACR 631 (C)). STUDY UNIT 1 8 Participation I: Introduction and perpetrators ! ! ! ! X3 X2 X1 Y Being a perpetrator by applying the ordinary principles of liability. X1 shoots and kills Y. X2 assists X1 by merely standing guard (in other words, preventing others from hindering X1 in the execution of his evil deed). X3 is behind the steering wheel of the ‘‘getaway car’’: he has transported X1 and X2 to the scene of the crime and lets the car idle so that all three of them (X1, X2 and X3) can speed away as fast as possible after the completion of the crime. All three can be convicted of murder by merely applying the ordinary principles of criminal liability, as explained above. 1.3.4 Being a perpetrator of murder by virtue of the doctrine of common purpose (Criminal Law 263–272; Case Book 201–206, 212–219, 225–240) 1.3.4.1 General If a number of people acting together kill Y, it is often very difficult to find with certainty that the acts committed by each of them contributed causally to Y’s death. The facts may be such that there is no doubt that at least one of the group, namely the one who actually shot and killed Y, caused his death, but there are also situations in which not even the conduct of a single one of the group can without doubt be described as a cause (at least in the sense of conditio sine qua non) of Y’s death. The latter situation occurs especially if there is a large number of people who together kill Y. It may then be difficult to base their liability for the joint murder merely on an application of the general principles of liability. There is usually no difficulty in finding that everybody’s conduct was unlawful and that each member of the group entertained the intention to kill. What is, however, often difficult to find is that the individual conduct of each member satisfied the requirement of causation. In order to overcome difficulties such as these, the courts apply a special doctrine to facilitate the conviction of murder of each separate member of the group. This doctrine is known as the doctrine of common purpose. 9 Definition of doctrine of common purpose If two or more people, having a common purpose to commit a crime, act together in order to achieve that purpose, the acts of each of them in the execution of such a purpose are imputed to the others. Although the doctrine is couched in general terms, in our law it has been applied mostly to the crime of murder. The crucial requirement of the doctrine is that the different accused should have had the same purpose. Once this is proven, the act of Z, who, for example, threw a heavy stone at Y which struck him on the head, is imputed to X, who had a common purpose with Z to kill Y, but who threw a stone at Y which missed him. In fact, Z’s act is imputed to everyone who had the same purpose as himself, and who actively associated himself with the achievement of the common purpose, even though one cannot construe a causal connection between such a party’s act and Y’s death. It is, however, only Z’s act which is imputed to the other party (X), not Z’s culpability. X’s liability is based upon his own culpability (Malinga 1963 (1) SA 692 (A) 694). The common-purpose doctrine as applied to cases of murder may indeed be regarded as nothing other than a mechanism applied to overcome the difficulties inherent in proving causation where a number of people together kill somebody else. If it is possible to base each participant’s conviction for murder on an application of the general rules of liability (and, more particularly, on the ordinary principles of causation), it is, in our view, preferable to follow this option rather than resort to the common-purpose doctrine in order to secure a conviction. The reason for this predilection is the fear expressed in certain quarters that the latter doctrine, with its wide definition and scope, may in certain circumstances lead to inequitable results, in that somebody who played only a comparatively minor role in the events may also be convicted for murder (Mshumpa 2008 (1) SACR 126 (EC). 1.3.4.2 Proof of existence of common purpose The existence of a common purpose between two or more participants is proved in the following ways:. On the basis of an express or implied prior agreement to commit an offence. Since people mostly conspire in secret, it is very difficult for the state to prove a common purpose based on a prior agreement. (See S v Mbanyaru 2009 (1) SACR 631 (C) where it was held that common purpose based on prior agreement was not proved in this case.). Where no prior agreement can be proved, the liability arises from an active association and participation in a common criminal design (Thebus 2003 (2) SACR 319 (CC) 336). The concept of active association is very important. We shall say something more about this shortly. 1.3.4.3 Why it is necessary to have such a doctrine Is this doctrine really necessary? Is it not possible for our law to dispense with this doctrine? The answer to the first question is ‘‘Yes’’, and to the second ‘‘No’’. To prove the correctness of these answers, we would like to discuss the following practical problem. STUDY UNIT 1 10 Participation I: Introduction and perpetrators Why the common purpose doctrine is necessary. X1, X2, X3, X4 and X5 stone Y to death. See the discussion below. Assume that a group of five people, whom we shall refer to as X1, X2, X3, X4 and X5, throw stones at Y. Y cannot run away from them, since he is trapped in a corner between two high walls. All the assailants (X1 to X5) have the intention of killing Y. This can be gathered from the fact that they shout loudly, within hearing distance of one another, ‘‘Kill him!’’ Some stones strike Y and some miss him. (See illustration.) Y dies as a result of the stoning. X1 to X5 are all charged with having murdered Y. During the trial, it is impossible for the court to find which of the accused persons threw stones that struck Y, and which of them threw stones that missed Y, because the events took place very quickly. Stated differently, it is impossible for the court to find beyond reasonable doubt that any of the accused threw a stone that struck Y. Let us assume for a moment that the doctrine of common purpose did not exist. Would it then have been possible for the court to convict any of the accused of murder? Certainly not, because a court would then be able to convict an accused of murder only if it is proved that such accused threw a stone which, separately or together with other stones, struck Y, with lethal consequences. However, the court finds it impossible to find beyond reasonable doubt that any of the accused threw a stone that struck Y. Let us proceed one step further. Let us assume that the events were filmed with a video camera and that the slow-motion portrayal of the events shows that the stone thrown by X3 did indeed strike Y, whereas the stone thrown by X4 happened to miss Y by just about an inch. Would it be fair for a court to find, on the ground of this evidential material, that X3 is guilty, but X4 is not? Common sense dictates that it would be grossly unfair not to convict X4 of murder as well: it is in all probability merely coincidental that the one stone struck Y and that the other one missed him by just an inch (or, one might add, that a stone thrown by (say) X5 struck Y only on his small toe, without any serious consequences to his life). Apart from this consideration, it is clear that X1 to X5 all shared the same intention, namely to kill Y. It would therefore be unfair to assume that a court may convict an accused only upon proof that the stone, or stones, he threw himself, struck Y. If this were the law, criminals would be able to escape the clutches of the law by merely ensuring that they never acted alone, but always in a group. This would lead to absurd 11 results. This is the reason why it is necessary to have the doctrine of common purpose. 1.3.4.4 The judgment in Safatsa Read the following decision in the Case Book: Safatsa 1988 (1) SA 868 (A). The leading case on the doctrine of common purpose is Safatsa 1988 (1) SA 868 (A). In this case, the facts were the following: A crowd of about 100 people attacked Y, who was in his house, by pelting the house with stones, hurling petrol bombs through the windows, catching him as he was fleeing from his burning house, stoning him, pouring petrol over him and setting him alight. The six appellants formed part of the crowd. The Court found that their conduct consisted, inter alia, of grabbing hold of Y, wrestling with him, throwing stones at him, exhorting the crowd to kill him, forming part of the crowd which attacked him, making petrol bombs, disarming him and setting his house alight. In a unanimous judgment delivered by Botha JA, the Appellate Division confirmed the six appellants’ convictions of murder by applying the doctrine of common purpose, since it was clear that they all had the common purpose to kill Y. It was argued on behalf of the accused that they could be convicted of murder only if a causal connection had been proved between each individual accused’s conduct and Y’s death, but the Court held that where, as in this case, a common purpose to kill had been proved, each accused could be convicted of murder without proof of a causal connection between each one’s individual conduct and Y’s death. If there is no clear evidence that the participants had agreed beforehand to commit the crime together, the existence of a common purpose between a certain participant and the others may be proven by the fact that he actively associated himself with the actions of the other members of the group. 1.3.4.5 Active association as proof of participation in a common purpose The existence of a common purpose between a certain participant and the other members of the group may be based upon a finding that the participant actively associated with the actions of the other members of the group. This happens frequently in practice. In Mgedezi 1989 (1) SA 687 (A) 705I–706C, the Appellate Division held that, if there is no proof of a previous agreement between the perpetrators, an accused whose individual act is not causally related to Y’s death can only be convicted of murder on the strength of the doctrine of common purpose if the following five requirements have been complied with:. first, he must have been present at the scene of the crime. second, he must have been aware of the assault on Y. third, he must have intended to make common cause with those committing the assault. fourth, he must have manifested his sharing of a common purpose by himself performing some act of association with the conduct of the others. fifth, he must have had the intention to kill Y or to contribute to his death Thus, somebody who was merely a passive spectator to the events will not, in terms of this doctrine, be liable to conviction, even though he may have been present at the scene of the action. Other principles which emerge from the case law are the following:. In murder cases, active association can only result in liability if the act of association took place whilst Y was still alive and at a stage before the lethal STUDY UNIT 1 12 Participation I: Introduction and perpetrators wound had been inflicted by one or more other persons (Motaung 1990 (4) SA 485 (A)).. Active association with the common purpose should not be confused with ratification or approval of another’s criminal deed which has already been completed. Criminal liability cannot be based on such ratification (Williams 1970 (2) SA 654 (A) 658-659). 1.3.4.6 Liability on the basis of active association declared constitutional Read the following decision in the Case Book: Thebus 2003 (2) SACR 319 (CC). In Thebus 2003 (2) SACR 319 (CC), liability for murder on the basis of active association with the execution of a common purpose to kill was challenged on the grounds that it unjustifiably limits the constitutional right to dignity (s 10 of the Constitution), the right to freedom and security of a person (s 12(1)(a)) and the right of an accused person to a fair trial (s 35(3)). The Constitutional Court rejected these arguments and declared constitutional the common law principle which requires mere ‘‘active association’’ instead of causation as a basis of liability in collaborative criminal enterprises. One of the Court’s main arguments was the following: The doctrine of common purpose serves vital purposes in our criminal justice system. The principal object of the doctrine is to criminalise collective criminal conduct and thus to satisfy the need to control crime committed in the course of joint enterprises. In consequence crimes such as murder it is often difficult to prove that the act of each person, or of a particular person in the group, contributed causally to the criminal result. Insisting on a causal relationship would make prosecution of collective criminal enterprises ineffectual. Effective prosecution of crime is a legitimate, pressing social need. Thus, there was no objection to the norm of liability introduced by the requirement of ‘‘active association’’, even though it bypassed the require- ment of causation (par at 343f–344b). 1.3.4.7 Common purpose and dolus eventualis Read the decision in the Case Book: Lungile 1999 (2) SACR 597 (A). For X to have a common purpose with others to commit murder, it is not necessary that his intention to kill be present in the form of dolus directus. It is sufficient if his intention takes the form of dolus eventualis; in other words, if he foresees the possibility that the acts of the participants with whom he associates himself may result in Y’s death, and reconciles himself to this possibility. Assume that X is charged with murder. The evidence brings to light that a number of persons, among them X, took part in a robbery or housebreaking, and that Z, one of the members in the group, killed Y in the course of the action. The question that arises is whether X and Z had a common purpose to kill Y. The mere fact that they all had the intention to steal, to rob or to break in is not necessarily sufficient to warrant the inference that all of them also had the common purpose to kill. One can steal, rob or break in without killing anybody. Whether X also had the intention to murder must be decided on the facts of each individual case. The case of Mambo 2006 (2) SACR 563 (SCA) provides a practical illustration. Three awaiting-trial prisoners planned to escape from their court cells. The plan included the forceful dispossession (robbery) of a court orderly’s firearm. When the orderly unlocked the gate of the cell so that the accused could enter, X1 gripped the orderly around his neck, X2 reached for the orderly’s lower legs and tugged at them, causing him to lose his balance, and X3 reached for the orderly’s 13 firearm in his holster on his right hip and grabbed it with both hands. As the orderly wrestled to free himself from the clutches of X1 and X2, X1 uttered the word ‘‘Skiet’’ (’’Shoot’’). X3 cocked the firearm and fatally shot the orderly. They were convicted in the High Court on charges of murder, robbery, and escape from lawful custody. The Supreme Court of Appeal upheld the convictions of all three on the robbery and escape charges, because these were part of their prior agreement or mandate, but held that the killing of the orderly did not form part of this mandate [par 16]. It therefore had to determine whether the initial mandate had extended to include the murder of the orderly. The Court held that, by his conduct and culpability, X3 satisfied the requirements for liability on the murder charge [par 16]. However, for his conduct (the killing of the orderly) to be imputed to X1 and X2, the Court had to establish that each of them foresaw the killing of the orderly as a possibility arising from conduct of one of their number, and had reconciled themselves to that possibility. The Court held that, by uttering the word ‘‘Skiet’’, X1 had proved that he shared a common purpose with X3 in relation to the murder of the orderly [par 17]. However, the Court noted that all that X2 had done in the process of overpowering the orderly was to grab hold of his legs. The State reasoned that, by participating in the plan to escape, which involved the robbery of the orderly’s firearm, X2 must have foreseen the possibility that this could result in the death of the orderly, and that he had reconciled himself thereto (ie, he had dolus eventualis). The Court rejected this argument on the basis that the mere fact that the three accused intended to rob the orderly in the execution of their plan to escape did not warrant the inference that X2 had dolus eventualis in relation to the shooting [par 18]. X2 was therefore acquitted on the murder charge. Read the following decision in the Case Book: Molimi 2006 (2) SACR 8 (SCA). In Molimi 2006 (2) SACR 8 (SCA), the Supreme Court of Appeal held that conduct by a member of a group of persons which differs from the conduct envisaged in their initial mandate (common purpose) may not be imputed to the other members, unless each of the latter knew (dolus directus) that such conduct would be committed, or foresaw the possibility that it might be committed and reconciled themselves to that possibility (dolus eventualis). X1, X2 and Z were co-conspirators to a planned robbery of a big retail store (Clicks) in a shopping mall. X1, the store manager, informed X2 about the exact time at which a security officer (in the employ of Fidelity Guards) would arrive at the store to collect money. X1 encouraged X2 to employ the services of four armed men, who would confront the security guard and, once they had acquired possession of the money, to rob him of the money. On the day in question, Z and three armed men dispossessed the security officer of the money and fled with the loot. As they fled, there was an exchange of gunfire between one of the robbers and the store’s security guard. They were both fatally wounded in the exchange. The gunfire attracted the attention of a bystander in the shopping mall. As the three other robbers ran in his direction towards the exit of the mall, they pointed their firearms at him, but did not shoot. He then drew his firearm and shouted at them to drop theirs. He pursued one of the armed men (Z) who had the loot in a bag. Z dropped the bag he was carrying and ran into another store for refuge. Once in the store, Z turned around and pointed the gun at the bystander, who reacted by shooting at him (Z). The bullet missed Z, but wounded an employee in the store. Z retreated further into the store and took a young man hostage. While holding the hostage, with a firearm pointed at the hostage’s head, he ordered the bystander to surrender his firearm. The bystander responded by firing at him, but fatally wounded the hostage. Z eventually surrendered. X1, X2 and Z were all convicted in the High Court on seven counts. These were: STUDY UNIT 1 14 Participation I: Introduction and perpetrators robbery; the murder of the security guard of the store in which the robbery took place (Clicks); the attempted murder of the employee who was wounded in the other store; the kidnapping of the hostage; the murder of the hostage held by Z in the other store; and two counts of the unlawful possession of firearms. X1 and X2 appealed to the Supreme Court of Appeal against their convictions. They conceded the existence and proof of a common purpose (between X1, X2 and Z) to rob the store, but argued that the actions of the bystander which resulted in the kidnapping and death of the hostage and injury to an employee in the other store were not foreseeable by them (X1 and X2) as part of the execution of the common purpose. The Court held that the attempted murder of the employee in the other store was foreseeable, for, once all the participants in a common purpose foresaw the possibility that anybody in the immediate vicinity of the crossfire could be killed – regardless of who actually shot the fatal bullet – then dolus eventualis was present. It held, however, that the kidnapping of the hostage by Z and the hostage’s eventual murder were acts which were so unusual and so far removed from what was foreseeable in the execution of the common purpose that these acts could not be imputed to X1 and X2. They were acquitted on these charges (murder and kidnapping in respect of the hostage). 1.3.4.8 Dissociation from the common purpose Just as association with the common purpose leads to liability, dissociation or withdrawal from the common purpose may, in certain circumstances, lead to negative liability. South African courts have not yet developed very specific rules relating to the circumstances in which withdrawal will effectively terminate X’s liability. The following guidelines are a fair reflection of South African law on this subject: (1) In order to escape conviction on the grounds of a withdrawal from a common purpose – whether by prior agreement or active association – X must have a clear and unambiguous intention to withdraw from such purpose. If X flees or withdraws because he is afraid of being arrested, or being injured, or aims to make good his escape, then his withdrawal will not have been motivated by a clear intention to withdraw from a common purpose which he was a part of (Lungile 1999 (2) SACR 603 (SCA) at 603h–j). (2) In order to succeed with a defence of withdrawal, X must perform some positive act of withdrawal. Mere passivity on his part cannot be equated with a withdrawal, because, by his previous association with the common purpose, he linked his fate and guilt with that of his companions. (3) The type of act required for an effective withdrawal depends on a number of circumstances. In Musingadi 2005 (1) SACR 395 (SCA) at 407h–j, the Court listed the following factors: ‘‘the manner and degree of the accused’s participation; how far the commission of the crime has proceeded; the manner and timing of disengagement; and, in some instances, what steps the accused took or could have taken to prevent the commission or completion of the crime’’. The Court added that the list was not exhaustive, but laid down this principle: ‘‘The greater the accused’s participation, and the further the commission of the crime has progressed, then much more will be required of an accused to constitute an effective disassociation. He may be required to take steps to prevent the commission of the crime or its completion. It is in this sense a matter of degree and in a borderline case calls for a sensible and just value judgment’’ (409 g–h). (4) Much like the principles relating to the voluntary withdrawal of an attempt (SG 3.2.7), a withdrawal will be effective if it takes place before the course of events has reached the ‘‘commencement of the execution’’ – the stage when 15 it is no longer possible to desist from, or frustrate, the commission of the crime. It is ‘‘a matter of degree and... calls for a sensible and just value judgment’’ (Musingadi supra). (5) The withdrawal must be voluntary. voluntary 1.3.5 Joining in (Criminal Law 272; Case Book 219–225) ! ! ! ! ! X1 X2 X3 Y Z The joiner-in. X1, who, together with X2 and X3, has already inflicted a lethal wound upon Y, runs away from the scene of the crime. While Y is still alive, Z, who has not previously agreed with X and his two associates to kill Y, appears on the scene. Because he himself harbours a grudge against Y, he inflicts a wound on Y with a club. This wound does not, however, hasten Y’s death. Y dies shortly thereafter. May Z also be convicted of having murdered Y? See the discussion below. Assume that X, acting either alone or together with others in the execution of a common purpose, has already wounded Y lethally. Thereafter, while Y is still alive, Z (who has not previously (expressly or tacitly) agreed with X to kill) inflicts a wound on Y, which, however, does not hasten Y’s death. Thereafter, Y dies as a result of the wound inflicted by X. The person in Z’s position is referred to as a ‘‘joiner-in’’, because he associated himself with others’ common purpose at a stage when Y’s lethal wound had already been inflicted, although Y was then (ie, when Z joined the assault) still alive. In order to characterise the joining-in situation properly, it is important to bear the following in mind:. First, if the injuries inflicted by Z in fact hastened Y’s death, there can be no doubt that there is a causal connection between Z’s acts and Y’s death, and that Z is therefore guilty of murder. (Therefore, Z is then not a joiner-in.). Secondly, if Z’s assault on Y takes place after Y has already died from the injuries inflicted by X or his associates, it is similarly beyond doubt that Z STUDY UNIT 1 16 Participation I: Introduction and perpetrators cannot be convicted of murder, since the crime cannot be committed in respect of a corpse. (Therefore, Z is then not a joiner-in.). Thirdly, if the evidence reveals a previous conspiracy between X (or X and his associates) and Z to kill Y, Z is guilty of murder by virtue of the doctrine of common purpose, since X’s act in fatally wounding Y is then imputed to Z. (Therefore, Z is then not a joiner-in.) The joining-in situation presupposes the absence of a common purpose between X and Z. Thus, to summarise: The joiner-in is a person. whose attack on Y did not hasten Y’s death. whose blow was administered at a time when Y was still alive. who did not act with a common purpose together with the other persons who also inflicted wounds on Y Note that the joiner-in is not a description of a category of participants other than perpetrators and accomplices. It is merely a convenient term to use when referring to person Z as described in the set of facts mentioned above. Nobody denies that the conduct of the joiner-in is punishable. The question is merely the following: Of what crime must he be convicted? Before 1990, there was great uncertainty in our law regarding the answer to this question. According to certain decisions and writers, the joiner-in had to be convicted of murder, but, according to other decisions and writers, he could at most be convicted of attempted murder. In 1990, in Motaung 1990 (4) SA 485 (A), the Appellate Division considered the different views on the matter and, in a unanimous judgment delivered by Hoexter JA, ruled that the joiner-in could not be convicted of murder, but only of attempted murder. The judgment in Motaung is now the authoritative judgment on the liability of a joiner-in. One of the reasons advanced by the Court for its ruling was the following argument: To hold an accused liable for murder on the basis of an association with the crime only after all the acts contributing to the victim’s death have already been committed would involve holding him responsible ex post facto for such acts. The criminal law is firmly opposed to liability based on ex post facto or retrospective responsibility and does not recognise it in any other situation. It would therefore be contrary to accepted principle to recognise it here. (The expression ‘‘ex post facto’’ means ‘‘after the event’’.) 1.3.6 The most important principles relating to common purpose We now proceed to summarise the most important principles relating to the doctrine of common purpose as well as the liability of the joiner-in. Try to study these principles well. If you know them well and are able to reproduce them all, you have a key to all the principles relating to common purpose. (1) If two or more people, having a common purpose to commit a crime, act together in order to achieve that purpose, the acts of each of them in the execution of such a purpose are imputed to the others. (2) In the case of a charge of having committed a crime which involves the causing of a certain result (such as murder), the conduct imputed includes the causing of such result. 17 (3) Conduct by a member of the group of persons having a common purpose which differs from the conduct envisaged in the said common purpose may not be imputed to another member of the group, unless the latter knew that such other conduct would be committed, or foresaw the possibility that it might be committed and reconciled himself to that possibility. (4) A finding that a person acted together with one or more other persons in a common purpose may be based upon proof of a prior agreement or proof of active association in the execution of the common purpose. (5) On a charge of murder, the rule that liability may be based on active association applies only if the active association took place while the deceased was still alive and before a mortal wound, or mortal wounds, had been inflicted by the person or persons who commenced the assault. (6) Just as active association with the common purpose may lead to liability, so dissociation or withdrawal from the common purpose may, in certain circumstances, lead to negative liability. ACTIVITY X1, X2 and X3 are members of a criminal gang. Their main activities are to steal motor vehicles at shopping centres. X1, the leader, is not involved in the actual stealing of cars. He only tells X2 and X3 what to do. X2 and X3 always carry firearms and knives with them when they embark upon their criminal activities. Because of the dangerous nature of their activities, all the members of the gang realise that somebody may get killed. In fact, the gang leader (X1) has instructed them to kill anyone who interferes with their activities. One evening, while X2 and X3 attempt to steal a car parked in an underground parking garage, Y, the owner of the car, arrives on the scene. Upon seeing the robbers, she screams for help, but X2 and X3 force her into the boot of her car. They drive 20 kilometres out of the city to a desolate area in the bush. X2 rapes Y. Thereupon, X2 cuts Y’s throat. During all these events, X3 holds Y down. They (X2 and X3) then leave the scene of the crime. Y, who is mortally wounded, screams for help. X4, a passer-by, hears her screams. X4 is not a member of the gang. He has never even met any of the members of the gang. He also rapes Y and, intending to kill her, hits her with a stick over the head. Fifteen minutes after being raped and assaulted by X4, Y dies. The autopsy report reveals that Y had died as a result of blood loss incurred by the throat-cutting. In the report, it is also stated that the head injury did not hasten her death. You are the state prosecutor. Explain which crimes (if any) X1, X2, X3 and X4 have committed and the legal grounds upon which the liability of each will be based. FEEDBACK We will first deal with the murder of Y. X1, X2 and X3 are guilty of having murdered Y in terms of the general principles of liability. The actions of each of them qualify as the cause of Y’s death. There is no doubt that the act of X2 was the direct cause of Y’s death. Because the definition of the crime of murder is very wide, the acts of the gang leader, X1, as well as those of X2 and X3, are the cause (conditio sine qua non and legal cause) of Y’s death. X1 instructed the members of the gang to kill anybody who interfered with their activities, and X3 held Y down so that X2 could cut her throat. All three of them are perpetrators of murder. X1 is an indirect perpetrator and X2 and X3 are direct perpetrators. See the discussion in 1.3.2 above. All three accused (X1, X2 and X3) had at least foreseen the STUDY UNIT 1 18 Participation I: Introduction and perpetrators possibility of an innocent person being killed during the course of their criminal activities. In other words, all of them had at least dolus eventualis in respect of Y’s death. The alternative basis upon which X1, X2 and X3 may be convicted of having murdered Y, is to rely on the doctrine of common purpose. In terms of this doctrine, the state need not prove the element of causation in respect of each accused. Instead, the acts of each of the participants in the execution of the common purpose are imputed to the others. The leading cases in this regard are Safatsa and Mgedezi. Keep in mind, however, that the state still has to prove that each accused acted with intention. Since, according to the autopsy report, X4’s act did not causally contribute to Y’s death, X4 cannot be convicted of murder. As regards Y’s rape, X2 may also be convicted of this crime. X2 is the perpetrator of rape and X3 is an accomplice to rape. The reason why X3 cannot be convicted of rape as a co-perpetrator is that he never performed an act of sexual penetration on Y. His conduct does not fall within the definition of rape. By holding Y down to the ground, X3 nevertheless furthered the commission of the crime by somebody else (X2), and, therefore he (X3) is an accomplice to rape. X1 cannot be convicted of rape, because he never performed an act of sexual penetration on Y, and did nothing to further the crime. Presumably, he never even anticipated that X2 and X3 would have sexually penetrated a woman without her consent. X4 is guilty of rape and attempted murder in respect of Y. As regards the crime of attempted murder, X4 is a typical example of a joiner-in. The leading case in this regard is Motaung. SUMMARY (1) Persons involved in the commission of a crime are divided into two groups, namely participants and nonparticipants. (2) Participants further the commission of the crime, whereas nonparticipants do not further the commission of the crime. An accessory after the fact is a nonparticipant, since he comes into the picture only after the crime has already been completed, and then helps the perpetrator or accomplice to escape liability. (3) Participants are divided into two groups, namely perpetrators and accomplices. The distinction drawn between these two groups is the most important distinction relating to participation in crime. Consult the definitions of a perpetrator and an accomplice given above. (4) Unlike a perpetrator, an accomplice does not, through his conduct, state of mind or personal description, fall within the definition of the crime, but nevertheless commits an act whereby he furthers the commission of the crime by somebody else. (5) If one considers the definition of a perpetrator, it is clear that there are two grounds upon which a person can qualify as perpetrator, namely either on the ground that he complies with the definition of the crime, in which case one merely applies the ordinary principles of liability (and in murder more particularly: only the ordinary principles relating to causation), or by virtue of the operation of the doctrine of common purpose. (6) As far as the doctrine of common purpose as well as the liability of the joiner- in are concerned, consult the summary above under 1.3.6 of the most important principles applicable to this topic. 19 TEST YOURSELF (1) Distinguish between a participant and a non-participant in a crime. (2) Distinguish between a perpetrator and an accomplice, and give an example of each of these groups. (3) Give a definition of each of the following: a perpetrator, an accomplice, and the doctrine of common purpose. (4) Explain in one sentence why an accessory after the fact does not qualify as a participant in a crime. (Write the answer here.)................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................... (5) If more than one perpetrator is involved in the commission of a crime, is it necessary to identify one of them as the principal perpetrator? (6) Explain the meaning of ‘‘direct perpetrator’’ and ‘‘indirect perpetrator’’. Is there any difference between these two categories of perpetrators as far as their liability for the crime is concerned? (7) Summarise the rules pertaining to the doctrine of common purpose. (8) Discuss the judgment in Safatsa 1988 (1) SA 868 (A). Briefly mention the facts in this case, as well as the points of law decided by the Court. (9) Briefly discuss the judgment of the Constitutional Court in Thebus 2003 (2) SACR 319 (CC). (10) (a) What do you understand by the term ‘‘joiner-in’’? (b) Explain whether there is any difference between a joiner-in and a co-perpetrator, and give reasons for your answer. (c) What crime does the joiner-in commit? (d) What is the leading case on the liability of the joiner-in and what was decided in this case? (11) Discuss the circumstances in which our courts may find that a person has dissociated himself or has withdrawn from a common purpose. 20 STUDY UNIT 2 Participation II: Accomplices and Accessories after the fact Contents Learning outcomes 21 2.1 Background 21 2.2 Accomplices 21 2.2.1 Introduction 2.2.2 Definition 2.2.3 Technical and popular meaning of the word ‘‘accomplice’’ 2.2.4 Requirements for liability as an accomplice 2.2.5 Is it possible to be an accomplice to murder? 2.3 Accessories after the fact 23 2.3.1 Introduction 2.3.2 Definition 2.3.3 Requirements for liability of accessory after the fact 2.3.4 Punishment 2.3.5 Reason for existence questionable Summary 26 Test yourself 26 21 LEARNING OUTCOMES When you have finished this study unit, you should be able to demonstrate further your understanding of the principles relating to participation by — expressing an informed opinion whether an accused can be held liable as an accomplice — expressing an informed opinion whether an accused can be held liable as an accessory after the fact 2.1 BACKGROUND In the previous study unit, we started our discussion of participation in a crime. In that study unit, we explained the difference between participants and nonparticipants, as well as between perpetrators and accomplices. You should ensure that you understand these differences well before embarking upon a study of this study unit. We have already discussed liability as perpetrators in the previous study unit. In this study unit, we discuss accomplices and accessories after the fact. 2.2 ACCOMPLICES (Criminal Law 273–278; Case Book 207–212) 2.2.1 Introduction Where a person does not participate in the commission of a crime as a perpetrator, she may nevertheless participate in, and be liable as an accomplice. The definition of each crime is directed primarily at the perpetrator, and the perpetrator is the person whose conduct conforms to all the elements contained in the definition of the crime in question, or who qualifies as a perpetrator in terms of the common-purpose doctrine. The accomplice is a person whose conduct does not conform to all the requirements in the definition of the crime, but which is nonetheless punishable because she has intentionally furthered the commission of the crime by another person. Liability as an accomplice is therefore something less than liability as a perpetrator. See our discussion above on the distinction between perpetrators and accomplices. 2.2.2 Definition See the definition of an accomplice given in the previous study unit. 2.2.3 Technical and popular meaning of the word ‘‘accomplice’’ Confusion can easily arise about the meaning of the word ‘‘accomplice’’. The reason for this is that the word can have two meanings, namely a technical (or narrow) and a popular (or broad) meaning. The popular meaning is the meaning the word has in the everyday layperson’s language; according to this meaning, the word refers to anybody who helps the ‘‘actual’’ or ‘‘principal’’ perpetrator to commit the crime or who furthers the commission in some way or another, without distinguishing between persons who qualify as perpetrators as defined STUDY UNIT 2 22 Participation II: Accomplices and Accessories after the fact above (ie, who comply with the definition of the crime or who qualify in terms of the doctrine of common purpose) and those who do not qualify as perpetrators. The popular meaning of this word is accordingly so wide that it may also refer to persons who are, technically speaking, perpetrators. The technical meaning of the word refers only to its narrower meaning as stated in the definition of ‘‘accomplice’’ above. According to this narrower meaning, an accomplice can never include a perpetrator, that is, somebody who complies with all the requirements for liability set out in the definition of the crime. In the discussion which follows, as well as every time the word ‘‘accomplice’’ is used in legal terminology, it bears the technical (narrow) meaning as explained above. 2.2.4 Requirements for liability as an accomplice In order to be liable as an accomplice, the following four requirements must be complied with. (1) Act There must be an act (in the criminal law sense of the word) by which the commission of a crime by another person is furthered or promoted. Furtherance can take place by way of aiding, counselling, encouraging or ordering (Jackelson 1920 AD 486). Merely to be a spectator at the commission of a crime naturally does not amount to furtherance thereof (Mbande 1933 AD 382, 392–393). The following are examples of conduct for which a person has been held liable as an accomplice: (1) In Peerkhan and Lalloo 1906 TS 798, the conduct forbidden in the definition of the crime was the purchasing of unwrought gold. Lalloo bought the gold and was thus a perpetrator. Peerkhan bought no gold, but acted as interpreter, adviser and surety in connection with the transaction. Consequently, his conduct did not comply with the definition of the crime (the purchase of gold), but nonetheless constituted furtherance of the purchase; accordingly, he was an accomplice. (2) In Kazi 1963 (4) SA 742 (W), the forbidden conduct was the holding or organising of a meeting without the necessary permission. K did not hold or organise the meeting, but nonetheless addressed it. It was held that his conduct rendered him guilty as an accomplice. (2) Unlawfulness The act of furthering as described above must be unlawful. In other words, there must not be any justification for it. (3) Intention The crime, committed by another person, must be furthered intentionally (Quinta 1974 (1) SA 544 (T) 547). Negligence is not sufficient. The shop assistant who inadvertently fails to close the shop window is not an accomplice to the housebreaking which follows. She will only be an accomplice if, knowing of the intended housebreaking and in order to help the thief, she does not close the window properly. In such a case, the thief need not be aware of the shop clerk’s

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