S v Thebus and Another

• Jurisdiction: South Africa
• Citation: 2003 (6) SA 505 (CC)

S v Thebus and Another
2003 (6) SA 505 (CC)

2003 (6) SA p505

Citation	2003 (6) SA 505 (CC)
Case No	CCT 36/2002
Court	Constitutional Court
Judge	Chaskalson CJ, Langa DCJ, Ackermann J, Goldstone J, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J and Yacoob J
Heard	February 20, 2003
Judgment	August 28, 2003
Counsel	J J Gauntlett SC (with him D P Borgström) for the appellants.; J A D'Oliveira SC (with him A D R Stephen) for the State.

Flynote : Sleutelwoorde B

Constitutional law — Common law — Development of — Need to develop common law under s 39(2) of Constitution of the Republic of South Africa Act 108 of 1996 can arise in at least two instances — First when rule of common law inconsistent with constitutional provision — Repugnancy of that kind will compel adaptation C of common law to resolve inconsistency — Second possibility arising even when rule of common law not inconsistent with specific constitutional provision but may fall short of its spirit, purport and objects — Then common law has to be adapted so that it grows in harmony with objective normative value system found in Constitution — When it is contended that rule of common law inconsistent with constitutional provision Court required to do D threshold analysis as to whether rule limits entrenched right — If limitation not reasonable and justifiable, Court itself is obliged to adapt, or develop common law in order to harmonise it with constitutional norm.

Constitutional practice — Courts — Powers of — Development of common law — Superior E Courts protectors and expounders of common law — Superior Courts always had inherent power to refashion and develop common law in order to reflect changing social, moral and economic make-up of society — Power constitutionally authorised and has to be exercised within prescripts and ethos of Constitution.

Criminal law — Persons, liability of — Common purpose — Ordinarily, in consequence crime, causal F nexus between conduct of accused and criminal consequence a prerequisite for criminal liability — Doctrine of common purpose dispensing with causation requirement — Provided accused actively associated with conduct of perpetrators in group that causes death and has required intention in respect of unlawful consequence, accused will be guilty of offence — Principal object of doctrine of common purpose to criminalise collective criminal G conduct and thus to satisfy social need to control crime committed in course of joint enterprises — In consequence crimes, such as murder, robbery, malicious damage to property and arson, it is often difficult to prove that act of each person or of particular person in group contributes causally to criminal result — Such causal prerequisite for liability rendering nugatory and ineffectual object of criminal norm of common purpose and making prosecution of H collaborative criminal enterprises intractable and ineffectual.

Criminal law — Persons, liability of — Causation — Requirement of — Definitional elements or minimum requirements necessary to constitute meaningful norm for common-law crime unique to that crime and useful to distinguish and categorise crimes — Common minimum requirements of common-law crimes I are proof of unlawful conduct, criminal capacity and fault, all of which have to be present at time crime committed — Requirement of causal nexus not a definitional element of every crime — Mere exclusion of causation as requirement of liability not fatal to criminal norm. J

2003 (6) SA p506

Criminal law — Persons, liability of — Element of offence — No pre-ordained characteristics of criminal conduct, outcome or A condition — Conduct constituting crime because law declares it so — Some crimes have common- law and others legislative origin — Duly authorised legislative authority can create new, or repeal existing, criminal proscription — Making conduct criminal intended to protect societal or public interest by criminal sanction — Criminal norms vary from society to society and within society from time to time, relative to community convictions of what is harmful and worthy of B punishment in context of its social, economic, ethical, religious and political influences — In South African constitutional setting, any crime, whether common-law or legislative in origin, has to be constitutionally compliant — Criminal norm cannot deprive person of freedom arbitrarily or without just cause — Just cause pointing to substantive protection against C arbitrary deprivation of freedom or without adequate or acceptable reason and to procedural right to fair trial — Meaning of just cause to be grounded upon and be consonant with values expressed in s 1 of Constitution of the Republic of South Africa Act 108 of 1996 and gathered from provisions of Constitution. D

Criminal law — Persons, liability of — Common purpose — Constitutionality of doctrine — Doctrine of common purpose not trenching upon rights to dignity and freedom — Doctrine of common purpose setting standard of criminal culpability, defining minimum elements necessary for conviction in joint criminal enterprise — Doctrine rationally connected to legitimate E objective of limiting and controlling joint criminal enterprise — Effective prosecution of crime a legitimate, pressing social need — In practice, joint criminal conduct often poses peculiar difficulties of proof of result of conduct of each accused, problem which hardly arises in case of individual accused person — Doctrine of common purpose not relating to reverse onus or presumption relieving prosecution of any F part of burden — State required to prove beyond reasonable doubt all elements of crime charged under common purpose — No reasonable possibility that accused person can be convicted despite existence of reasonable doubt as to her or his guilt — Doctrine not trenching right to be presumed innocent — Criticisms against doctrine that, in some cases, requirement of active association cast too widely or misapplied G and that there are less invasive forms of criminal liability short of convicting participant in common purpose as principal not rendering unconstitutional liability requirement of active association — Common-law doctrine of common purpose in murder passing constitutional muster and not requiring to be developed in terms of s 39(2) of Constitution of the Republic of South Africa Act 108 of 1996. H

Criminal procedure — Evidence — Assessment of — Of alibi — Accused raising alibi for first time at time of trial — Inference to be drawn from accused's failure to raise alibi timeously — Four Judges finding that right to silence infringed by holding silence against accused after being warned of right to remain silent without further warning that inference can be drawn from failure to raise alibi and I that such silence cannot be used in cross-examination of accused — Three Judges holding adverse inference on credibility limiting right to remain silent, but that it is law of general application — Absence of prior warning is matter going to weight to be placed upon late disclosure of alibi — Where prior warning given that late J

2003 (6) SA p507

disclosure of alibi can be taken into consideration, this can justify greater weight A being placed on alibi — Having regard to limited use to which late disclosure of alibi put, rule justifiable — Failure to disclose alibi timeously not a neutral factor — Can legitimately be taken into account in evaluating evidence as whole — Permissible to cross-examine accused on why he or she opted to remain silent on alibi or indeed on any other defence — One Judge finding that right to silence has impact on way in which criminal trial B conducted — Appropriate protection of right not requiring cross-examination of accused person about reasons for failure to disclose alibi to be absolutely protected nor prohibiting judicial officer from drawing any legitimate inference from evidence revealed by cross-examination, silence of accused and all relevant surrounding circumstances — Right infringed only if implicated in way C that renders trial unfair — Drawing inference as to guilt or credibility solely from silence of accused would render trial unfair — Two Judges holding that right to pre-trial silence not implicated in present matter — Consequently, unnecessary to reach question of whether failing to disclose alibi defence to police could ever attract adverse inference. D

Headnote : Kopnota

The appellants had been convicted in a High Court on a count of murder and two of attempted murder. They had unsuccessfully appealed to the Supreme Court of Appeal. In convicting the appellants the trial Court had applied the doctrine of common purpose. The trial Court had also held the fact that the first appellant had failed to disclose his alibi defence until the trial, some two years after he was arrested, E against him in rejecting his alibis. The appellants appealed further to the Constitutional Court, contending, first, that the previous Courts had failed to develop and apply the common law doctrine of common purpose so as to bring it into line with the rights set out in the Constitution of the Republic of South Africa Act 108 of 1996; and, secondly, that the fact that an inference had been drawn from the first F appellant's failure to disclose an alibi defence prior to trial had violated his right to silence as contained in the Constitution.

Challenge to the doctrine of common purpose

Held (per Moseneke J; Chaskalson CJ, Langa DJP, Ackermann J, Goldstone J, Madala J, Mokgoro J, Ngcobo J, O'Regan J and Yacoob J concurring), that the need to develop the common law G under s 39(2) of the Constitution of the Republic of South Africa Act 108 of 1996 could arise in at least two instances. The first would be when a rule of the common law was inconsistent with a...