- S v Smith 2017 (1) SACR 520 (WCC)
Section 18 of the Riotous Assemblies Act 17 of 1956* provides as follows:
“18.(1) Any person who attempts to commit any offence, against a statute or a statutory regulation shall be guilty of an offence and, if no punishment is expressly provided thereby for such an attempt, be liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable.
(2) Any person who -
(a) conspires with any other person to aid or procure the commission of or to commit; or
(b) incites, instigates; commands, or procures any other person to commit, any offence, whether at common law or against a statute or statutory regulation, shall be guilty of an offence and liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable.”
Note that the so-called inchoate, incomplete or anticipatory crimes and/or offences* supra, are all statu-tory offences in terms of section 18 of the Riotous Assemblies Act 17 of 1956. Note further that these are Schedule 1 of the Criminal Procedure Act 51 of 1977 offences*, but only if such conspiracy, incitement or attempt is in respect of a Schedule 1 offence - such as murder.
Remember then that conspiracy to commit an offence (any offence), can only take place where two or more persons are involved.
Also see what the learned author Snyman has to say on pp294-297 of his Criminal Law, fifth edition as published by LexisNexis. However, in this latter (Snyman) regard, see S v Kwatsha 2004 (2) SACR 564 (ECD) as discussed by Pollex in Servamus: June 2005.
In the last instance, by way of background, can a person be convicted of an attempt (which is one of the so-called incomplete offences supra), to commit another incomplete offence namely, conspiracy? In the light of the Supreme Court of Appeal judgment in S v Kekana 2013 (1) SACR 101
(SCA), the answer is “yes”. Refer to Pollex in Servamus: June 2013 where Kekana is discussed, as well as all the relevant remarks made at the time by Pollex.
For the sake of completeness: is an attempt to incite a person to commit an offence, legally speaking, possible? The answer is “yes” - see S v Nkosiyana 1966 (4) SA 655 (A).
In the matter under discussion, namely S v Smith, Mr Smith (hereinafter referred to as the accused) and Mr Alan Kusevitsky (hereinafter referred to as Mr AK) were joint owners of City Bowl Armed Response (CBAR), a security business in Cape Town. As time passed, Mr AK discovered that the accused had misappropriated some of the business's income for his own account. Mr AK confronted the accused and after some time the latter agreed to repay Mr AK.