A critical evaluation of the doctrine of common purpose in South African law.

Abstract

Although South African law adopted the doctrine of common purpose from 19th century English law, the scope of the doctrine has been considerably extended. Whereas English law required presence at the time of the crime, in pursuance of a conspiracy to commit the crime in concert, South African law has dispensed with the need for all these requirements to be met. Thus, where there is a prior conspiracy, South African law does not require presence at the time of the crime, or an actual contribution towards its execution. Where there is presence at the time of the crime, it is unnecessary to prove a prior conspiracy, or an actual contribution towards the execution of the crime. All that is required is unilateral conduct showing solidarity with the conduct of the actual perpetrator. South African law has also dispensed with the need to establish the scope of a common purpose as a matter of objective fact. It is only necessary to prove association in a criminal enterprise of some kind, coupled with the necessary mens rea for the crime. This means that liability for a serious crime like murder can arise from a relatively trivial act of association, which in no way contributed to the death of the deceased, or encouraged or facilitated the commission of the crime. This is an unacceptable departure from the principles of normative criminal justice, which require liability and punishment to be commensurate with personal culpability. Although the normative basis for the doctrine was originally thought to lie in the principles of mandate, mandate cannot offer a tenable justification for the doctrine in its present extended form. It is argued that there is in fact no normative basis for the doctrine in this form. The only justifications that remain are instrumental in nature. The lack of a normative basis for the doctrine is inimical to a rational, systematic and principled approach to the law, whilst disregard for the principles of culpability, fair labelling and proportionality in punishment is unacceptable in a constitutional dispensation concerned with protecting fundamental human rights. At the same time, instrumental justifications for the doctrine are unconvincing. It is accordingly submitted that the South African law of complicity is in need of reform to render it constitutionally compliant.