Recent Case: General principles and specific crimes

JurisdictionSouth Africa
Pages246-257
Published date24 May 2019
Citation(2009) 22 SACJ 246
AuthorShannon Hoctor
Date24 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
246
(2009) 22 SACJ 246
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