Recent Case: General principles and specific crimes

• Jurisdiction: South Africa
• Citation: (2009) 22 SACJ 246
• Published date: 24 May 2019
• Pages: 246-257
• Date: 24 May 2019

General principles and specic crimes

SHANNON HOCTOR

University of KwaZulu-Natal, Pietermaritzburg

General principles

Common purpose

In S v Mbanyaru 2009 (1) SACR 631 (C) a full bench of the Cape

High Court heard an appeal against convictions of murder, attempted

murder and unlawful possession of a f‌irearm. One of the grounds of

appeal was that the trial court had erred in holding that the appellants

committed the crimes in the execution of a common purpose.

Moosa J, delivering judgment on behalf of a unanimous court (at

para [14]), carefully set out the requirements for establishing a common

purpose based on active association, as explicated in S v Mgedezi 1989

(1) SA 687 (A) at 705I-706B, before setting out the limitations on the

operation of the common purpose doctrine: the doctrine does not apply

where the accused formed the common purpose after the inf‌l iction of

the fatal blow (S v Motaung 1990 (4) SA 485 (A) at 520G-521A); the

doctrine does not apply to acts committed after the attainment of the

common purpose (R v Garnsworthy 1923 WLD 17); the doctrine does

not apply if no common purpose can be established (S v Petersen 1989

(3) SA 420 (A) at 425G-426A).

In casu it was held (at paras [15]-[16]) that whilst the evidence estab-

lished the guilt of the f‌irst appellant beyond reasonable doubt, it did

not reveal that the second appellant intended to make common cause

with the f‌irst appellant, or that he had performed an act of association

with the f‌irst appellant, or that he had the necessary mens r ea. All

that could be established was that the second appellant ran away with

the f‌irst appellant after the fatal shooting, and it was held that ‘the

mere presence and running away from the scene of the crime with the

perpetrator do not meet the requisites of common purpose’ (at para

[16]).

In the result the second appellant was acquitted on all the charges,

whilst the f‌irst appellant’s appeal against conviction was dismissed (at

para [17]). This f‌inding is entirely consistent with the prevailing legal

authority. As Snyman notes (Criminal Law 5ed (2008) 268, referring to

RECENT CASES

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(2009) 22 SACJ 246

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