Abstract

Keywords

Common purpose; socius criminis; criminal liability for participation.

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1 Introduction

The common purpose doctrine has seen significant development in the past four decades. From a doctrine tainted by its association with the application of the criminal law against those opposing the apartheid regime, it has now been declared constitutionally sound. 1

 Shannon Hoctor. BA LLB LLM (UCT) DJuris (Leiden) PG Dip (Latin) (Wales Trinity Saint David). Professor, Department of Public Law, Stellenbosch University, South Africa. This article is in honour of the enormous contribution that Willemien du Plessis has made to South African legal scholarship. Apart from her extraordinary intellectual legacy, Willemien has made her mark through her kindness and humility. Before my very first academic paper presentation at the Southern African Society of Legal Historians conference in January 1999, Willemien took it upon herself to assuage my jangling nerves with a practice on the night before the presentation. Her gracious guidance and encouragement were exactly what was needed! My own experience merely exemplifies the generosity and compassion that so many have encountered in dealing with Willemien as students and colleagues. These endearing and enduring qualities, in association with her exceptional academic productivity, make her richly deserving of tribute. Email: svhoctor@sun.ac.za. ORCiD: https://orcid.org/0000-0002-5012-6491

1 In S v Thebus 2003 2 SACR 319 (CC) (hereafter the Thebus case).

The common purpose doctrine may be defined as follows: 4

4 Burchell Principles of Criminal Law 477. This definition was approved in the Thebus case para 18. The definitions used by Hoctor Snyman's Criminal Law 225 and Kemp Criminal Law 283 are similar.

Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for specific criminal conduct committed by one of their number which falls within their common design. Liability arises from their 'common purpose' to commit the crime.

The characteristics of the modern common purpose doctrine are:

(i) While the causing of a particular result is imputed to all members of the common purpose, neither intention nor negligence is imputed from one actor to another. 5

5 Hoctor Snyman's Criminal Law 225; Kemp Criminal Law 283; Visser & Maré Visser & Vorster's General Principles of Criminal Law 691.

(ii) Liability for any conduct which differs from that embodied in the common purpose is limited to those members of the common purpose who knew or

foresaw (and reconciled themselves to) the possibility of the conduct taking place. 6

6 Hoctor Snyman's Criminal Law 225; Kemp Criminal Law 287.

(iii) Common purpose may arise either by prior agreement with other participants in the common purpose or by active association with the conduct of other participants in the common purpose. 7

7 Hoctor Snyman's Criminal Law 225; Kemp Criminal Law 284; Burchell Principles of Criminal Law 477, who raises a novel argument for a third "hybrid" form of common purpose liability, which is criticised by Hoctor 2016 Obiter 666.

(iv) The "late-comer" (or "joiner-in"), that is, the person who actively associates himself with the criminal act of those acting in the common purpose only after the mortal wound has already been inflicted, does not fall within the ambit of the common purpose doctrine. 8

8 Hoctor Snyman's Criminal Law 226; Kemp Criminal Law 286; Burchell Principles of Criminal Law 493-494.

(v) The common purpose rule is constitutionally sound. 9

9 Thebus case; Hoctor Snyman's Criminal Law 230; Kemp Criminal Law 292-293; Burchell Principles of Criminal Law 482.

(vi) The common purpose rule applies to all crimes. 10

10 Hoctor Snyman's Criminal Law 226.

Much ink has been spilt on the issue of common purpose, and in the course of this brief contribution there will not be scope to expand on any of the intriguing aspects of the doctrine. It is probably fair to say that, from a legal-historical perspective, the unabridged biography of the common purpose doctrine remains to be written. 11

11 Despite some strong efforts, notably Parker 1996 JAL 78.

2 Rabie's exposition of the history of the common purpose doctrine

If common purpose entered into South African law from English law, how did this take place? This is not entirely clear. The most influential exposition of this process has been that of Rabie, in his trademark comprehensive analysis of the common purpose doctrine published in 1971. 14

14 Rabie 1971 SALJ 227. Parker 1996 JAL 82 n 20 describes this article as "the fullest account of the early history of the common purpose rule in South Africa."

opening pages of his article Rabie states that the doctrine of common purpose originated in the English law, specifically in the case law, and sets out 15

15 Rabie 1971 SALJ 227.

Rabie proceeds to then set out some exemplary case law to explain what he terms the "common purpose of English law", 17

17 Rabie 1971 SALJ 227.

If then not simply adopted in terms of an already established doctrine bearing this name, how was it that the common purpose doctrine came to be transferred into South African law? Rabie explains that this took place through the Native Territories Penal Code of 1886. 19

19 Rabie 1971 SALJ 229, referring to Act 24 of 1886 (C). For a detailed discussion of this statute and its developmental influence on South African criminal law, see Koyana Influence of the Transkei Penal Code.

If several persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of such common purpose, the commission of which offence was, or ought to have been, known to be a probable consequence of the prosecution of such common purpose.

Rabie points out that somewhat mysteriously the same idea is conveyed in the "Interpretation of Terms" in section 5(e) of the Act, without any overt reference to the section 78 provision. 21

21 Rabie 1971 SALJ 229 n 17.

When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone. Whenever an act which is criminal only by reason of its being done with a criminal knowledge or intention, is done by

several persons, each of such persons who joins in the act, with such knowledge or intention, is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention.'

Rabie then points out that the common purpose doctrine arose in the context of the delict case of McKenzie v Van der Merwe 22

22 McKenzie case.

Rabie's synopsis of the transfer of the common purpose doctrine into South African law and the milestones of its early development has indeed been highly influential. 25

25 De Wet De Wet and Swanepoel Strafreg 192 n 74; Hoctor Snyman's Criminal Law 212 n 23, and Burchell, Milton and Burchell South African Criminal Law and Procedure 2nd ed 430 n 173 all cite Rabie's article, although they do not necessarily identify with his suggested pattern of historical development of the doctrine.

With regard to the textbook writers, Burchell references Rabie's article in stating that the "common-purpose rule originated in the English law and was introduced into South Africa via what was then the Native Territories' Penal Code." 28

28 Burchell Principles of Criminal Law 479 n 31.

But does Rabie's analysis accurately convey the correct details regarding the genesis of the common purpose doctrine on South African soil? The matter is susceptible to further inquiry. A full evaluation of this question is unfortunately beyond the scope of this short inquiry, but Rabie's analysis can at least be tested against the following questions: (i) Did the common purpose doctrine derive from English roots? (ii) Were the means of entry into South African law the NTPC? (iii) Did the doctrine indeed emerge in South African case law in 1917, in the Appellate Division case of McKenzie v Van der Merwe?

2.1 English roots?

There can be little doubt, following Rabie, that the common purpose doctrine developed from English antecedents. At least, it seems clear that the common purpose doctrine, in the form of a doctrine, does not derive from the Roman or Roman-Dutch common law sources. 32

32 Snyman Criminal Law 212.

Similarly, although the body of Roman-Dutch law did not produce a unitary theory of participation, "it is clear from the works of the Roman-Dutch writers that criminal liability was not restricted to persons who actually committed a crime." 37

37 Maré "Doctrine of Common Purpose" 114.

If the common purpose doctrine does not directly derive from the Roman and Roman-Dutch common-law sources, then it follows that the source of

the doctrine is English law. This is entirely consistent with the statement of Moseneke J in S v Thebus to the effect that rules of criminal liability similar or comparable to common purpose may be found in many common-law jurisdictions such as England, Canada, Australia, Scotland and the USA. 40

40 Thebus case para 22.

But is the common purpose doctrine in fact a doctrine applied in the English law?

The "common purpose" nomenclature is derived from Stephen, 41

41 Stephen and Stephen Digest of the Criminal Law.

Stephen describes the category of principals in the first degree as "[w]hoever actually commits, or takes part in the commission of a crime … whether he is on the spot when the crime is committed or not ..." 47

47 Stephen and Stephen Digest of the Criminal Law Art 36 at 30.

according to Kenny, who adds that "[a]n aider and abettor is only liable for such crimes committed by the principal in the first degree as were done in execution of their common purpose." 50

50 Kenny Outlines of Criminal Law 86.

It may be noted that Stephen's description of common purpose 52

52 Stephen and Stephen Digest of the Criminal Law Art 39.

It can therefore be concluded that while Stephen's appellation (apparently not shared by other writers) and description of the English law use of a practical rule of common purpose, based on the case law, was no doubt influential in practice, there is little to no evidence of any actual reception of any English law doctrine to this effect. 57

57 Even in 19th century cases such as In re Kelly v The State 1894 1 Off Rep 281, the mixed treatment and application of Roman-Dutch and English rules and sources is evident: the appellant's liability as a principal in the second degree was confirmed, with the court relying on Van der Linden in doing so.

in criminal law for a number of decades. 60

60 Until the Appellate Division provided an authoritative analysis of the differences between perpetrator liability and accomplice liability in S v Williams 1980 1 SA 60 (A) 63 (hereafter the Williams case). See the discussion in Maré "Doctrine of Common Purpose" 116-118.

In the case of common law offences any person who knowingly aids and assists in the perpetration of a crime is punishable as if he had committed it. The English law calls such an one a principal in the second degree; and there is much curious learning as to when a man is a principal in the second, and when in the first degree. Our law knows no distinction between principals in the first and second degrees, or between principals in the second degree and accessories. It calls a person who aids, abets, counsels or assists in a crime a socius criminis – an accomplice or partner in the crime. And being so, he is under Roman-Dutch law as guilty, and liable to as much punishment, as if he had been the actual perpetrator of the deed.

It is clear from this statement that the English legal principles – those on which the common purpose doctrine is apparently based – are being distinguished from those operational in the South African law, which are in turn based on Roman-Dutch law. This understanding is further underscored in Innes CJ's further statement to the effect that: 62

62 Peerkhan case 803.

The true rule seems to me to be that the common law principles which regulate the criminal liability of persons other than actual perpetrators should apply in the case of statutory as well as of common law offences…and I think, therefore, that a person who knowingly assists another to buy unwrought gold in contravention of the law is himself a socius criminis, and punishable as such.

In a separate concurring judgment in Peerkhan, Wessels J states that "[o]ur law differs considerably from the English law in that … our law is void of any technicality … [and] says that a person who assists at a crime is himself guilty of the crime." 63

63 Peerkhan case 803-804. Cf the early case of R v Abrams 1880-1882 1 SC 393 399, where it was held that merely being a "passive agent" did not suffice for liability.

While the approach of the court in Peerkhan has been criticised for not maintaining the distinction between perpetrator liability and accessory liability, 65

65 De Wet De Wet and Swanepoel Strafreg 189-190. According to De Wet the Peerkhan case paradoxically also had a positive effect on practice, in that it got rid of the artificialities of the English distinctions in this area.

questions of participation. 66

66 In R v Littlejohn 1912 TPD 781 782 the court observed that in the light of the Peerkhan case it was unnecessary to charge an accused who advised another to commit a crime as a socius criminis or as an accessory; such a person could be charged as a principal offender.

Two conclusions can at least be drawn in this regard. First, the common purpose doctrine that has emerged in South African law is not the same as the eponymous "rule" deriving from English law by way of Stephen. Whereas Stephen's common purpose rule applied only to a principal in the second degree, that is, an aider or abettor of the actual perpetrator, the South African doctrine provides for perpetrator liability to extend to all persons who act together in a common purpose to commit a crime. The breadth of the operation of the socius criminis notion has enabled a broader application of the common purpose doctrine in South African law.

Secondly, there is clearly a relationship between the concepts of common purpose and socius criminis based on the case law. This is exemplified in the 1928 Appellate Division case of Ngcobo, 69

69 Ngcobo case.

passage in the Malinga judgment from which this statement was derived was later cited in the leading case of S v Safatsa. 73

73 S v Safatsa 1988 1 SA 868 (A) 896A-D; also see S v Mbatha 1987 2 SA 272 (A); S v Nomakhlala 1990 1 SACR 300 (A).

It can therefore be concluded that while the common purpose doctrine has English roots, 74

74 See MT Steyn JA in S v Nzo 1990 3 SA 1 (A) 14B-C (hereafter the Nzo case).

2.2 Via the Native Territories Penal Code?

While the NTPC has operated as a useful reference point for the courts in several contexts, it is not clear that section 78 has had a broader field of application than merely in its designated geographical area. It seems that the high point of application of the NTPC approach came in the case of R v Taylor, 75

75 R v Taylor 1920 EDL 318 (hereafter the Taylor case). While the question of common purpose arose in the context of both the Ngcobo case and R v Bamana 1933 EDL 249, where aspects of the NTPC were also discussed, s 78 was not applied. S 78 was however directly applied in R v Swartbooi 1916 EDL 170 in respect of a charge of assault.

support for this proposition is similarly limited to the judgment of the court in Taylor. 82

82 Rabie 1971 SALJ 229 n 16.

2.3 McKenzie the leading case?

Thus far it may be concluded that English law is best characterised as a foundation of the South African common purpose doctrine, and that at best the definition of common purpose in the NTPC may have provided a convenient synopsis of the doctrine in its incipient form (rather than in itself contributing to doctrinal development). There are strong arguments that English law would have influenced the acceptance and further legal development of the common purpose doctrine. But as has been argued based on the sources available, these arguments lack explicit grounds for unequivocal acceptance, and thus the point cannot be made any more authoritatively than this. It is arguably easier to ask the more narrow question arising out of Rabie's synopsis of the acceptance of the common purpose doctrine in South African law: whether the delict case of McKenzie v Van der Merwe indeed provides the first example of the application of the common purpose doctrine in the South African case law. 88

88 MT Steyn JA in the Nzo case 13BC agreed with Rabie that the first mention of common purpose was in the McKenzie case.

While the Appellate Division has imported doctrines into South African law which were not previously explicated in the case law, 89

89 Such as the mistake as to the causal sequence defence excluding fault: S v Goosen 1989 4 SA 1013 (A).

It seems that the first reported criminal case in which the term “common purpose” was employed was that of R v Cohen, 95

95 R v Cohen 1884-1885 3 SC 337.

notable that the court expressly identified another as the principal, and the other two persons in the group (including the accused) as accessories. It follows that this classification into categories does not reflect the common purpose doctrine. The next case where there was held to be a "common purpose" between the participants in the offence was in the context of procuring in R v Rose, 96

96 R v Rose 1911 CPD 956 (hereafter the Rose case).

There then followed a series of cases in the Appellate Division where the question of common purpose was considered. All these cases were appeals against judgments of the Natal Native High Court. 99

99 Lansdown and Lansdown South African Criminal Law and Procedure 5th ed 130 explain that in terms of the Extended Jurisdiction of Native High Court Act 30 of 1910 (N) (passed in order "To amend the Courts Act 49 of 1898"), the Natal Native High Court had jurisdiction to try without a jury all crimes (apart from certain specified exceptions) committed by "natives" (defined as "all members of the aboriginal races or tribes of Africa south of the Equator ..." in terms of s 5 of the Courts Act 49 of 1898 (N)). Where jurisdiction to try a crime was given to the Native High Court, the jurisdiction of the Provincial Division of the Supreme Court was ousted. The Natal Native High Court was abolished as from 1 January 1955 (see ss 2 and 4 of the Black High Court Abolition Act 13 of 1954).

purpose to justify the conviction". In the Mpeta case decided in the same year the Appellate Division heard an appeal against a conviction of assault with intent to commit murder. 101

101 R v Mpeta 1912 AD 568 (hereafter the Mpeta case).

Now if this story is substantially correct, then all the petitioners are clearly guilty of murder, no matter which of them inflicted the actual wounds. Because they set out by common arrangement, to achieve a common purpose. They went to attack the kraal, and, as it was expressed, 'to execute magic'. What they had in mind was only too clear; it was to complete the destruction of the kraal and overpower any resistance. Their intention to kill is shown by the fact that they armed themselves with lethal weapons and used them at once before they were themselves assaulted.

The applications for leave to appeal were consequently denied by the court. While the Mjoji and Mpeta cases simply clearly illustrate that the common purpose doctrine was already in use in the courts at this stage, the dictum from Muka; Sitimela is noteworthy not merely for the application of the doctrine but for the evidence that the doctrine had already assumed a form entirely consistent with the modern doctrine.

The acceptance of the doctrine prior to the McKenzie case is further demonstrated in the story of the demise of an ostrich in Laubscher. 105

105 R v Laubscher 1913 CPD 123 (hereafter the Laubscher case).

Buchanan J set out the evidence before dealing with the question of liability in the following terms: 107

107 Laubscher case 125.

I think the evidence, therefore, justifies the Magistrate in coming to the conclusion that the ostrich's leg was broken by the stones thrown by the boys. But it is said that the injury must have been caused by one particular stone and the responsibility of the throwing of that stone must be fixed on one of the boys. I am not, however, prepared to accept that reading of the law. Here we find three boys taking part in the same act, all of them deliberately throwing stones at the bird, and I think that the evidence fully justified the Magistrate in finding that all three were responsible for the results, even though it is possible only one of them threw the stone which actually fractured the leg.

It was further added by Buchanan J that the attack on the ostrich was "most wanton, wilful and mischievous, and, of course, unlawful …" 108

108 Laubscher case 126.

The adoption of the common purpose doctrine beyond (the then Union of) South Africa into (the erstwhile) Southern Rhodesia prior to the McKenzie case is evidenced by the case of Tababona. 110

110 R v Tababona 1915 SR 72 (hereafter the Tababona case).

establishing that the accused killed the twins, the court states the following about the witnesses: 112

112 Tababona case 74.

The witnesses were all present together, they joined in burning the twins, whose bodies were put into a pot by Mpalaiwa and the prisoner, and in my view there is sufficient evidence of a common purpose animating these women, not one of whom raised a finger to save the children, to render everyone of them liable to be indicted for the crime of murder.

The possible prosecution of the accused and witnesses could not proceed, however, on the grounds of a lack of outside evidence. Nevertheless, the application of the common purpose doctrine by the court is entirely consistent with the modern conception of the doctrine.

Lastly, in the case of Sipeka the court on appeal assessed convictions for housebreaking and theft, and arson, formulated in terms of the NTPC. 113

113 Sipeka case, in terms of ss 215 and 199, and s 236, respectively, of the NTPC.

[A]ll of the accused…went down to the store with the unlawful purpose of breaking into it, and…after they did so, they all combined in destroying it by fire…the magistrate was justified in concluding that if they all took part in the storebreaking, they all took part in the theft of the articles which were stolen.

Although the term "common purpose" does not appear in the judgment as such, only in the flynote, it is clear that the court is applying the common purpose doctrine in upholding the convictions. As noted earlier, despite the court’s applying the NTPC there is no reference to the common purpose provision set out in section 78 of the Act.

It may thus be concluded that the common purpose doctrine was being applied in South African law prior to 1917, and prior to being raised in the McKenzie case.

Before dealing with McKenzie, it is noteworthy that the same bench of the Appellate Division that handed down the decision in McKenzie delivered another judgment in the context of delict on the very same day as McKenzie. In Naude and Du Plessis v Mercier 115

115 Naude and Du Plessis v Mercier 1917 AD 32 (hereafter the Naude case).

respondent, a headmaster of the local school in Winburg in the erstwhile Orange Free State, being taken captive by members of a band of rebels who had entered the town. The period of captivity lasted about 24 hours, before the respondent was released.

The appeal being unsuccessful, it was confirmed that the appellants were required to pay damages to the respondent. The Appellate Division's reasoning in employing the common purpose notion is instructive: 116

116 Naude case 40.

Up to the time when [Du Plessis] handed the respondent over there can, of course, be no doubt that he and Naude were equally liable. The position when he handed him over was this: the appellants were both engaged in the common purpose of imprisoning Mercier and others in the interests of the general movement. Du Plessis delivered him into the custody of Koster (acting under Naude), knowing that his detention would be continued, with the object of enabling it to be continued… By doing what he did, he enabled the imprisonment to be continued; he assisted in so continuing it, and he must have been taken to have contemplated and intended that it should be prolonged, at any rate for some short time.

The Naude case has not been mentioned in any discussion of the development of the common purpose doctrine, no doubt because all later citations of this judgment dealt with other issues rather than the application of common purpose thinking.

What was the basis of the decision in McKenzie? The case arose out of the acts of bands of rebels in the Orange Free State, who had taken stock from the appellant's farm and cut the fences on his farm, causing considerable damage. The respondent was at the time the assistant commandant of such a band of rebels. Evidence of who had caused the harm and how this was done was understandably hard to come by, and so the appellant had argued that "every rebel was liable for acts … done by every other rebel in furtherance of the common purpose", 117

117 McKenzie case 44.

Where a rebellion has taken place, is every rebel liable for the delict of every other rebel if done in furtherance of the common purpose, and not foreign to it, in the absence of any other connection by way of command, instigation, advice, assistance or participation of any kind in the particular delict itself? For the appellant the matter was put in this way: Every person who joins in rebellion is party to a common unlawful purpose; the taking of stock and the cutting of wires are incidents which may be taken as likely to happen during the execution of that purpose; and therefore every rebel is liable for all acts of that kind committed by other rebels in the prosecution of the rebellion.

As mentioned earlier, in the course of his judgment Innes CJ noted that while the appellant had cast his reliance on the English criminal law rule of

common purpose, 119

119 Citing Stephen and Stephen Digest of the Criminal Law 46 para 39.

If, therefore, the parties to a conspiracy have met together in conjunction for the commission of a certain act, and have been prepared with mutual aid and co-operation, or have been used as spies or as sentinels against danger, they are all equally punishable, though the act itself, e.g. a murder has only been committed by one of them. 124

124 Van der Linden Regsgeleerd, Practicaal en Koopmans Handboek 2.1.7 cited at McKenzie case 53. This passage was also cited with approval in the early case of Kaplan 265.

Considering the similarity between the common purpose rule in Stephen and the passage in Van der Linden, Solomon JA concludes that the appellant's argument is by no means assisted by this passage: 125

125 McKenzie case 53.

If crimes of different natures which have no direct connection with each other are committed at the same time by different sections of the same conspiracy, each act must be considered by itself, although the perpetrators are all parties to the same conspiracy.

It is noteworthy that Solomon JA further states that the case at hand needed to be determined "upon the principles of our own law, not upon any special rules of the English criminal law." 126

126 McKenzie case 56.

The approach in the McKenzie case therefore in itself somewhat disrupts the neat flow set out in Rabie's explanation of the genesis of the common purpose doctrine in South Africa. While the English law "rule" as set out by Stephen is acknowledged, the court is careful to indicate that the South African sources, including Van der Linden, are of primary importance in assessing questions relating to participation. Further, the readily available formulation in the NTPC is not mentioned at all by the court.

In this regard, it is noteworthy that the next important case dealing with common purpose after the McKenzie case, that of Garnsworthy, 128

128 Garnsworthy case. Interestingly, Rabie 1971 SALJ 230 includes the Garnsworthy case in his historical synopsis of the development of the common purpose doctrine. The Garnsworthy judgment was followed in R v Barry 1932 TPD 312 315, and then subsequently approved in the Appellate Division in R v Duma 1945 AD 410 415 (hereafter the Duma case). The Duma decision was then subsequently followed in respect of common purpose in the Appellate Division in R v Ndhlangisa 1946 AD 1101, R v Morela 1947 3 SA 147 (A) and R v Kahn 1955 3 SA 177 (A).

Now the law upon this matter is quite clear. Where two or more persons combine in an undertaking for an illegal purpose, each one of them is liable for anything done by the other or others of the combination, in the furtherance of their object, if what was done was what they knew or ought to have known, would be a probable result of their endeavouring to achieve their object.

The statement that the law on common purpose was at that stage "quite clear" is interesting in that, as indicated, this conclusion does not entirely follow directly from the McKenzie case. Nevertheless, the court specifically refers to the "common purpose" of the commando, 129

129 Garnsworthy case 19.

It is impossible, therefore, for any man who was there at the latest at the time of the first exchange of shots, to escape the imputation of knowledge of the full and fatal extent of the operations in which he took part. 131

131 Garnsworthy case 22.

Contrary to what the statement indicates, it is the unlawful conduct of the participants in a common purpose that is imputed to each other, not the "knowledge" or intention in respect of the unlawful conduct.

The McKenzie case was explicitly followed in the Appellate Division in the Mouton case in the context of delict, 132

132 In Mouton v Beket 1918 AD 181 190, 193, and in the decision in the court a quo, in Beket v Mouton 1917 OPD 90 95, 99.

It is noteworthy that the approach of Hefer JA, where common purpose is established based on the appellants' foresight of the possibility of and reconciliation with the death of the deceased, is consistent with the broad approach adopted in relation to common purpose today. In contrast, MT Steyn JA's approach, which seeks to limit liability on the basis of common purpose, and which adopts the principle of "proximity" in order to establish common purpose liability, does not reflect the developments in the doctrine since the McKenzie case. Innes CJ in McKenzie tests liability on the basis of agency: 140

140 McKenzie case 47 cited at Nzo case 13E-F.

[D]o [the circumstances of each case] … justify the inference that the perpetrator was the agent of the accused to do the particular act? And where there is no evidence of express authority the presence of accused at the time and his co-operation then in a common purpose would, of course, become an element of great importance.

The common purpose doctrine has moved on from seeking to assess questions of whether "express authority" was given in order for there to be liability. The present law is that "[i]t is trite that a prior agreement may not necessarily be express, but may be inferred from the surrounding circumstances." 141

141 Tshabalala case para 49; see also Thebus case para 19.

3 Concluding remarks

This brief analysis assessing whether the generally accepted narrative of the genesis of the common purpose doctrine, as set out by Rabie, is trustworthy cannot expand into a full discussion of the development of the doctrine into its present form. This is a much larger endeavour which far exceeds the ambit of the current article. It is hoped, however, that this discussion could contribute to such an assessment.

What then can be concluded? It can be agreed that the doctrine was initially introduced from English law into South African common law after the occupation by the English of the Cape and the other South African territories during the 19th century. 142

142 Mzwempi case para 38.

English rules on the nascent South African criminal law cannot fully be traced, but it can be concluded that in the frequent resort to English law in dealing with problems in South African courts, it would be inevitable that this approach would be absorbed into the approach adopted in criminal practice. Such an influence would certainly have been strengthened by the fact of the inclusion of the rule of common purpose in the NTPC, which exercised an effect on South African criminal law well beyond its intended geographical limitations.

However, as has been argued above, the simple reception of the doctrine suggested by Rabie's synopsis is misleading. In fact, the above brief survey of the law reveals no monolithic narrative of the historical origins of common purpose, but instead suggests that the origins of the doctrine need to be extracted from succeeding case law. In particular, it seems clear that the origins and early development of the common purpose doctrine owe much to the rather broad concept of the socius criminis, which operated alongside and was interwoven with the ideas on participant liability received from English law.

A further key aspect of Rabie's synopsis of the genesis of the common purpose doctrine in South African law which requires examination is the primacy of the 1917 Appellate Division case of McKenzie v Van der Merwe. As the cases reveal, the common purpose doctrine was reflected in the case law prior to the McKenzie judgment, which did not play a significant role in the future development of the doctrine.

The modern doctrine of common purpose has survived the taint of its employment in a number of trials arising out of political violence to be declared constitutional. Concerns about the breadth of the doctrine have been addressed. The rationale for the use of the doctrine has shifted, and the South African doctrine of common purpose is exactly that, a doctrine which once introduced through the early English law influences on South African criminal law has found its own path of development through the criminal cases.

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Kistner U "Common Purpose: The Crowd and the Public" 2015 Law and Critique 27-43

Koyana Influence of the Transkei Penal Code

Koyana DS The Influence of the Transkei Penal Code on South African Criminal Law (Lovedale Press Alice 1992)

Lansdown and Lansdown South African Criminal Law and Procedure 5th ed

Lansdown CWH and Lansdown AV South African Criminal Law and Procedure Vol I: General Principles and Procedure 5th ed (Juta Cape Town 1946)

Lansdown, Hoal and Lansdown South African Criminal Law and Procedure 6th ed

Lansdown CWH, Hoal WG and Lansdown AV South African Criminal Law and Procedure Vol I: General Principles and Procedure 6th ed (Juta Cape Town 1957)

Maré "Doctrine of Common Purpose"

Maré MC "The Doctrine of Common Purpose in South African Law" in Joubert JJ (ed) Essays in Honour of SA Strauss (Unisa Press Pretoria 1995) 113-133

Matthaeus De Criminibus

Matthaeus A De Criminibus ad Lib XLVII et XLVIII Dig Commentarius (Typis Ioannis à Waesberge Trajecti ad Rhenum 1644)

Matzukis 1988 SACJ

Matzukis NA "The Nature and Scope of Common Purpose" 1988 SACJ 226-234

Ormerod and Laird Smith, Hogan, and Ormerod's Criminal Law

Ormerod D and Laird K Smith, Hogan, and Ormerod's Criminal Law 15th ed (Oxford University Press Oxford 2018)

Parker 1996 JAL

Parker P "South Africa and the Common Purpose Rule in Crowd Murders" 1996 JAL 78-102

Rabie 1971 SALJ

Rabie A "The Doctrine of Common Purpose in Criminal Law" 1971 SALJ 227-245

Snyman Criminal Law

Snyman CR Criminal Law (Butterworths Durban 1984)

Stephen and Stephen Digest of the Criminal Law

Stephen H and Stephen HL A Digest of the Criminal Law 5th ed (MacMillan London 1894)

Unterhalter 1988 SALJ

Unterhalter D "The Doctrine of Common Purpose: What Makes One Person Liable for the Acts of Another" 1988 SALJ 671-678

Van der Linden Regsgeleerd, Practicaal en Koopmans Handboek

Van der Linden J Regsgeleerd, Practicaal en Koopmans Handboek (Johannes Allart Amsterdam 1806)

Visser and Maré Visser & Vorster's General Principles of Criminal Law

Visser PJ and Maré MC Visser & Vorster's General Principles of Criminal Law Through the Cases 3rd ed (Butterworths Durban 1990)

Walker Critical Evaluation of the Doctrine of Common Purpose

Walker SA A Critical Evaluation of the Doctrine of Common Purpose in South African Law (LLM-dissertation University of KwaZulu-Natal 2014)

Case law

Beket v Mouton 1917 OPD 90

Cipla Medpro (Pty) Ltd v Aventis Pharma SA 2013 4 SA 579 (SCA)

Godfrey v Campbell 1997 1 SA 570 (C)

In re Kelly v The State 1894 1 Off Rep 281

Lindsay and Pirie v the General Accident Fire and Life Assurance Corporation Ltd 1914 AD 574

McKenzie v Van der Merwe 1917 AD 41

Mouton v Beket 1918 AD 181

Orenstein Arthur Koppel Ltd v Salamander Fire Insurance Co Ltd 1915 TPD 497

Naude and Du Plessis v Mercier 1917 AD 32

R v Abrams 1880-1882 1 SC 393

R v Bamana 1933 EDL 249

R v Barry 1932 TPD 312

R v Brett and Levy 1915 TPD 53

R v Cilliers 1937 AD 278

R v Cohen 1884-1885 3 SC 337

R v Duma 1945 AD 410

R v Dyomfane 1927 EDL 169

R v Garnsworthy 1923 WLD 17

R v Harrington 1851 5 Cox CC 231

R v Itumeling 1932 OPD 10

R v Jackelson 1920 AD 486

R v Jogee 2016 UKSC 8

R v Kahn 1955 3 SA 177 (A)

R v Kaplan 1892-1893 10 SC 259

R v Kennedy (No 2) 2007 UKHL 38

R v Laubscher 1913 CPD 123

R v Littlejohn 1912 TPD 781

R v Longone 1938 AD 372

R v Louw 1904 21 SC 36

R v Macklin, Murphy & Others 1838 2 Lewin 225, 168 ER 1136

R v Mapolisa 1965 1 All SA 533 (PC)

R v Mjoji 1912 AD 4

R v Mkize 1946 AD 197

R v Mlooi 1925 AD 131

R v Morela 1947 3 SA 147 (A)

R v Mpeta 1912 AD 568

R v Mtembu 1950 1 SA 670 (A)

R v Muka; R v Sitimela 1913 AD 290

R v Nabi 1909 TS 103

R v Ndhlangisa 1946 AD 1101

R v Ngcobo 1928 AD 372

R v Peerkhan and Lalloo 1906 TS 798

R v Rose 1911 CPD 956

R v Salie 1938 TPD 136

R v Sipeka 1915 EDL 19

R v Swartbooi 1916 EDL 170

R v Tababona 1915 SR 72

R v Taylor 1920 EDL 318

R v Veni Dume 1908 22 EDC 461

S v Goosen 1989 4 SA 1013 (A)

S v Malinga 1963 1 SA 692 (A)

S v Mbatha 1987 2 SA 272 (A)

S v Mgedezi 1989 1 SA 687 (A)

S v Mzwempi 2011 2 SACR 237 (ECM)

S v Nomakhlala 1990 1 SACR 300 (A)

S v Nzo 1990 3 SA 1 (A)

S v Safatsa 1988 1 SA 868 (A)

S v Thebus 2003 2 SACR 319 (CC)

S v Thomo 1969 1 SA 385 (A)

S v Tshabalala 2020 2 SACR 38 (CC)

S v Williams 1980 1 SA 60 (A)

Steenkamp v Kyd 1898 15 SC 221

Legislation

Black High Court Abolition Act 13 of 1954

Courts Act 49 of 1898 (N)

Native Territories Penal Code, Act 24 of 1886 (C)

Extended Jurisdiction of Native High Court Act 30 of 1910 (N)

List of Abbreviations