More than one person may be involved in the commission of a crime and there are various principles that find application in our law which determine how the law assigns criminal liability to such persons.
This is achieved through the application of the well-established legal principles in our legal system namely: the doctrine of common purpose; liability by reason of being an accomplice; and liability as an accessory after the fact.
These three legal principles are closely linked and can be somewhat confusing to the layman.
This article seeks to clarify the distinction between the 3 legal principles and shall look at how our Courts have applied these principles in illustrating the distinction between them.
Doctrine of common purpose:
The doctrine of common purpose has its roots in English Jurisprudence. In terms of the 1838 case of Macklin, Murphy and others the Court pronounced that:
“It is a principle of law that if several persons act together in pursuance of a common intent, every act done in furtherance of such intent by each of them, is in law done by all.”
The objective in developing this particular doctrine was clearly to criminalise and to dissuade collective criminal conduct.
Common purpose in South African Courts:
Where 2 or more people agree to commit a crime or actively associate in a joint unlawful activity, each will be responsible for the specific criminal conduct committed by one of their number which falls within their common design. It is sufficient to establish that the participants all agreed to commit a particular crime or actively associated themselves with the commission of the crime by one of their number with the necessary fault element.
Our Courts have grappled with this doctrine for many years and have regularly interpreted this doctrine and applied same – particularly in matters pertaining to murder and culpable homicide.
One of the leading South African decisions where this doctrine was applied was in the case of S v Mgedezi & Others where the Supreme Court of Appeal set out the requirements which must be established in order for one to be found criminally liable under the doctrine of common purpose.
These requirements are:
- The accused must have been present at the scene where the crime was committed.
- The accused must have been aware of the crime having been committed.
- The accused must have manifested his sharing of a common purpose by him/herself performing some act associated with the conduct of the others.
- The accused must have the requisite mens reae. the accused must have had the intention to commit a crime; or knowledge that his / her action or lack of action would cause a crime to be committed.
In the decision of Dewnath vs S (269/13) [2014] ZASCA 57 (17 April 2014) it was further held that there must be a close proximity between the conduct considered to be active association and the result and that such active association must be significant and not a limited participation removed from the actual execution of the crime.
If this is established, then the conduct of the participant who actually causes the consequence is imputed or attributed to the other participants. It is however not necessary to establish precisely which member of the group actually caused the consequence, provided that it is indeed established that one of the group brought about the result.
In circumstances where common purpose cannot be established the conduct of each individual participant must be evaluated separately in order to ascertain his or her own criminal liability.
Accomplice liability:
An accomplice is one who takes part in the commission of a crime but not as a perpetrator. A person is guilty of a crime as an accomplice where they “further” or “assist” the commission of a crime but do not partake actively in the commission of the crime in question. An accomplice is someone who affords the perpetrator the opportunity, the means or the information which furthers the commission of a crime.
In Minister of Justice and Constitutional Development and another v Masingili and others, it was held that:
“An accomplice is someone whose actions do not satisfy all the requirements for criminal liability in the definition of an offence, but who nonetheless furthers the commission of a crime by someone else who does comply with all the requirements. The intent required for accomplice liability is to further the specific crime committed by the perpetrator”.
A further definition was offered in the recent case of Phetoe v S (1361/2016) [2018] ZASCA (16 March 2018) where the Supreme Court of Appeal defined accomplice liability as:
“A person is guilty of a crime as an accomplice if, although he does not satisfy all the requirements for liability contained in the definition of the crime and although the conduct required for a conviction is not imputed to him by virtue of the principles relating to common purpose, he unlawfully and intentionally engaged in conduct where he furthers the commission of a crime by somebody else”.
Accessory after the fact:
A person who intentionally assists the perpetrator after the completion of the crime is not an accomplice because such a person does not further the commission of the actual crime in question. An accessory after the fact is someone who after the completion of the crime unlawfully and intentionally associates himself or herself with the commission of the crime by helping the perpetrator or accomplice to evade justice.
Distinction between the three legal principles:
The main difference between the doctrine of common purpose, accomplice liability and liability as an accessory after the fact is the requisite mental state of the participant or accused.
In order for one to be found criminally liable in terms of the doctrine of common purpose a person must have been present at the scene where the crime was committed, and there must be prior agreement whether express or implied to commit the crime and the participant must have the requisite mens rea.
In order for one to be criminally liable by reason of being an accomplice one needs not be present at the scene of the crime. The determining factor is whether the person intentionally assists in any form in the commission of a crime by someone else. Therefore, any conduct which may be considered aiding or abetting in the commission of a crime is sufficient to establish criminal liability by reason of being an accomplice.
Whilst in order for criminal liability to be present in case of an accessory after the fact one must after the commission of a crime knowingly and intentionally assist the perpetrator to evade justice.
By Michael Mkhize