- S V Mkhize and Others (390/18)  ZASCA 56 (1 April 2019) (SCA)
The doctrine of common purpose (Afrikaans: “gemeenskaplike oogmerk-leerstuk”)
According to the learned criminal law author Snyman, on p265 of his Criminal Law, fifth edition as published by LexisNexis, “the essence of the doctrine [of common purpose] is that if two or more people, having a common purpose to commit a crime, act together in order to achieve that purpose, then the conduct [Afrikaans: ‘handeling’] of each of them in the execution of that purpose is imputed [Afrikaans: ‘toegereken’] to the others”. (Words in square brackets inserted by Pollex.)
Prima facie (at first sight or on the face of it) this sounds as if common purpose only applies to offences where the required form of mens rea (fault [Afrikaans: “skuld”]) is dolus (intention). Bear, however, in mind that the required form of mens rea for the offence of culpable homicide is culpa (negligence) and NOT dolus.
This is, of course, not so. Snyman, on p269 of his Criminal Law supra, refers to Supreme Court of Appeal (“SCA”) judgments where it was held that “common purpose to commit culpable homicide” is in fact possible. On p265 (again) in item 6, Snyman explains as follows, namely -
“If, on a charge of culpable homicide the evidence reveals that a number of persons acted with a common purpose to assault or commit robbery and that the conduct of one or more of them resulted in the death of the victim, the causing of the victim’s death is imputed to the other members of the group as well, but negligence in respect of the causing of the death is not imputed”.
The facts in S v Mkhize and Others under discussion
The five accused persons were all SAPS members who, at the time, were members of a special task team established to deal with a spate of armed robberies and car hijackings in the area of Jozini and Esikhawini in KwaZulu-Natal.
A man by the name of Bongani Cebekhulu (hereinafter referred to as the deceased) was suspected of being involved in these crimes. Accordingly, he was taken to the offices of the detective branch at Esikhawini. During interrogation by the five accused persons, the deceased died right there in the office.
All five the accused persons were charged with murder before the Esikhawini regional court. Note that not one of the accused persons gave evidence in their respective defence.
After a long trial all five the accused persons were convicted of the competent verdict (Afrikaans: “bevoegde uitspraak”) of culpable homicide. The regional court held that because all five accused persons were present at the offices during interrogation, they acted in common purpose and that a
reasonable person would have taken steps to guard against the possibility of death and that the accused persons failed to take such steps. All five accused persons were each sentenced to three years’ correctional supervision in terms of section 276(6)(1)(h) of the Criminal Procedure Act 51 of 1977. In addition, each one of the five accused persons were sentenced to five years’ incarceration which was wholly, conditionally suspended for four years.
Appeal before the High Court in Pietermaritzburg
Not satisfied with this outcome, all five accused persons appealed to the High Court in Pietermaritzburg (“the High Court”) against their convictions only. What happened here was that all the convictions were confirmed. However, in respect of sentence, the High Court held that it was too lenient. In the result the sentences imposed by the regional court were all set aside and replaced with a sentence of seven years’ incarceration of which two years were conditionally suspended for five years. The effective sentences imposed by the High Court were thus five years’ direct incarceration in respect of each of the five accused persons.