Parties to a Crime

Question 1

Who are participants to a crime?

Answer 1

o ‘Participants’ include perpetrators + accomplices → = all persons who commit the crime either by complying with the definition of crime (perpetrators) or by facilitating
the commission of a crime (accomplices)

Question 2

What are the 4 types of perpetrators?

Answer 2

1.Direct perpetrators → commits crime himself with his own body
2.Direct perpetrators → commits crime himself with his own body
3.Co-perpetrators → 2 or more persons act together and both comply with the definition of crime
4.Concurrent perpetrators → person who commits a crime with another person but is unaware of the other concurrent perpetrator’s existence

Question 3

The Doctrine of Common Purpose

What is meant by the doctrine of common purpose?

Answer 3

• Where 2 or more persons form a common purpose to commit a crime in execution of that CP, the act and causation of one person is imputed to the other→ So all persons involved are perpetrators
• Effect of this = the state does not have to prove conduct of ALL of them + causation does not have to be proven by the state. BUT the state must still prove the fault element of each perpetrator

Question 4

Co-Perpetrators

What did the Mongalo case state regarding the role of co-perpatrators in a crime?

Answer 4

▪ Legal question: can you be a co-perpetrator to theft where you don’t commit the deed yourself? (no)
▪ Court held: you cannot be a co-perpetrator to theft where you do not commit the deed yourself. You can just be an accomplice. This is bc theft is a crime that must be committed with your own body

Question 5

The Doctrine of Common Purpose

What did the Garnsworthy case state regarding the doctrine of common purpose?

Answer 5

Facts: a group of strikers wanted to enforce a strike at a mine. They were interrupted by the police and during the course of this interruption, an altercation arose in which a few people were killed. They were all charged with murder. It could not be determined who actually killed the people bc they all acted in a common purpose.

• Legal question: can they all be held liable on a charge of murder based on the doctrine of CP?
• Court held: they had CP ito having intention to enforce the strike action **- Therefore, all of them were found guilty of murder

Question 6

Area of Application of the Doctrine of Common Purpose

How does the identifiable perpetrator apply in the doctrine of common purpose?

Answer 6

(1) Identifiable Perpetrator
o A and B rob a bank → A goes in and B stands guard → A is the identifiable perpetrator, but B is also guilty as co-perpetrator of A because there is CP between both of them to rob

Question 7

Area of Application of the Doctrine of Common Purpose

How does the joiner in operate in the doctrine of common purpose?

Answer 7

A person associates themself with the crime after it has been committed.
o X, Y, and Z decide to attack B in order to kill B. They attack B and throw stones at him causing B’s death. But before B dies, A arrives on the scene and also assaults B. —But at the time that A arrives on the scene, the fatal wounds had already been inflicted. So B would have died even if A didn’t arrive on scene. So A’s actions did not cause the death of the victim → A is the joiner-in.

Question 8

Area of Application of the Doctrine of Common Purpose

What are the facts of the Motaung case regarding a joiner?

Answer 8

• There was huge unrest in a specific area. 4 people were killed during this unrest. There was a huge funeral organized for these 4 men. A lot of people attended the funeral, including the soon-to-be deceased (D). A group of people who attended the funeral, suspected D to be a
  police informant.

-After the funeral, a group of people surrounded D and attacked her by throwing stones and inflammable material. The fatal wounds had already been inflicted at that point when M (the accused) arrived on the scene and started kicking D
- Legal Question: was M part of the criminal CP of the group pf people who attacked D?

Question 9

Area of Application of the Doctrine of Common Purpose

What did the motaung case satet regarding the role of a joiner in?

Answer 9

**Court held: ** M only came on the scene after the fatal wounds had been inflicted on D. So M’s actions did not cause or hasten D’s cause of death. M was only guilty of attempted murder based on the application of the joiner in principle

Question 10

Doctrine of Common Purpose

What are the 3 ways that the doctrine of common purpose can arise?

Answer 10

(1) By means of a prior agreement → the Safatsa construction
(2) Act of association → the Mgedezi construction
(3) Spontaneous common purpose → the Maelangwe construction

Question 11

Doctrine of Common Purpose

What did the Safatsa case state regarding the execution of a common purpose by means of a prior agreement?

Answer 11

o Facts: A group of people attacked the home of D by setting it on fire and then stoned D and killed him. They were all charged with murder
o It could not be ascertained whose act actually caused death. Causation was difficult for the prosecution to prove. But it was clear they all participated
o The court applied the doctrine of CP and held them all liable to the crime of murder.

o Significance of this case: once the state has succeeded in proving that a number of accused’s had acted in CP to kill the deceased, each accused can be convicted of murder without proof by the state of a causal connection between each one’s individual conduct and the deceased’s death.

-Prosecution is then relieved from proving causation, but the prosecution must still prove the fault of each individual

Question 12

Doctrine of Common Purpose

What principles were established in the Mgedezi case regarding the doctrine of common purpose through an act of association?

Answer 12

▪ (1) X must have been present at scene of crime
▪ (2) X must have been aware of the assault on Y by somebody else
▪ (3) X must have intended to make CP with the person(s) committing the assault
▪ (4) X must have manifested his sharing of CP by himself committing an act of association with the conduct of the others
▪ (5) X must have intended to kill Y ▪ Intention can be established by means of dolus eventualis → X foresaw that the possibility death might ensue and reconciled himself with that possibility

Question 13

Doctrine of Common Purpose

What did the Maelangwe case state regarding spontaneous common purpose?

Answer 13

o Main point: where people have a CP to commit a specific crime (crime 1), the CP to commit another crime (crime 2) can spontaneously arise on the scene
o They were all found guilty of murder
▪ CP can arise spontaneously where the accused’s have CP to rob and during the execution of this CP to rob, they encounter resistance and at that moment on the scene develop a CP to murder

Question 14

Doctrine of Common Purpose

What was the Maxaba decision regarding the doctrine of common purpose?

Answer 14

o The 3 accused’s came across the deceased (before he was dead) and demanded that he give them money → He said he had no money with him so he gave his watch to
them → accused 1 and accused 3 then walked away. Accused 2, however, decided to go and stab the deceased to death. They were all charged with murder.
o The court held: ito CP, even though the act and causation are imputed, the prosecution must still prove all the individual’s fault individually (in other words: if
there are 3 people involved then the prosecutor must prove fault for each of the 3 people

Question 15

Accomplices

What is an accomplice?

Answer 15

-a person who unlawfully and intentionally engages in
conduct whereby he furthers/promotes an offence by somebody else (the perpetrator)
>but does not satisfy all the requirements of the crime and the conduct is not imputed to him ito common purpose, but he is nonetheless a participant

Question 16

Accomplice

What are the requirements for accomplice liability?

Answer 16

o Must be accessory in nature
o There must be an act
o There must be unlawfulness
o There must be intention

Question 17

Accomplice

What did the M case state regarding accomplices to a crime?

Answer 17

• M and his wife were both charged with rape. One day, the complainant/victim (C) was lured by M’s wife to their home in order for M to have sex with C. M performed the act of sex while his wife held C down. Both M and his wife were charged with rape (even though the wife did not commit the act of penetration)
• Legal question: can a person be guilty of rape if they themselves didn’t perform act of penetration?
• Court held: the wife can only be guilty as accomplice and not as a perpetrator. M was found guilty of rape and the wife was found guilty of being an accomplice.

Question 18

Accomplices

What are the facts of the Williams case regarding accomplices?

Answer 18

4 accused persons were on a train. The deceased (D) was also on this train. Accused 1 stabbed D. Accused 2 then went and pulled D out of his room and provided the opportunity for accused 3 to stab D in his neck. Accused 4 stood by as a bystander watching these events take place. All 4 of them were charged with murder.
- High court held: accused 1 and accused 3 were found guilty of murder bc they stabbed D. Accused 2 and accused 4 were found guilty of being accomplices.

Question 19

Accomplices

What did the court in the williams case state regarding the role of accomplices?

Answer 19

-** Legal question: can a person be an accomplice to murder or must they be a perpetrator? →**
- Ito accomplice liability, the court found that accomplice liability is accessory in nature.if there is no perpetrator that is liable for the crime then there is no accomplice
liability. The accomplice associates himself with the commission of a crime by providing assistance to the perpetrator. This can be by virtue of an omission or commission

o In this case, accused 4 associated himself with the crime through his omission as a bystander
- An accomplice is held liable based on his own fault
- Therefore, a person can be an accomplice to murder, even by means of omission

Question 20

Accomplices

What did the Parry case state regarding accomplices?

Answer 20

• Parry was charged with murder after he provided a gun to Mr H who used it to shoot his wife.
  - Legal question: which of the liability curves should be applied?
• Court held: strict accessoriness should be applied here → the perpetrator should have acted unlawfully with capacity and fault
• Mr H had lacked criminal capacity at the time he killed his wife. Therefore, Parry was not found guilty as an accomplice due to the fact that there was no perpetrator liability.

Question 21

Accomplices

What are the 5 forms of accessory?

Answer 21

1. Procedural accessoriness: o In order for the accomplice to be liable>: act+ unlawfulness + capacity + fault + conviction + sentence
2. Hyper accessoriness:
o This is a less strict approach
o The following elements must be met to establish accomplice liability: act +unlawfulness + capacity + fault + conviction + sentence
3.- Strict accessoriness: o Used in SA law
o The following elements are required: act + unlawfulness + capacity + fault
o The following elements are NOT required: conviction + sentence
o X (perpetrator) does not have to be convicted in order for Y to be found guilty as an accomplice
4. Limited accessoriness: o Only an unlawful act is required (act + unlawfulness)
5. Minimal accessoriness: o Only an act by a perpetrator is required

Question 22

Accessories after the fact

What is an accessory after the fact?

Answer 22

An accessory after the fact is NOT a participant to the crime bc they don’t participate in the crime as a perpetrator or accomplice. Instead, they come on the scene after the crime is committed and assist the perpetrator

Question 23

Accessories after the fact

What is the difference between an AAF and a Joiner In?

Answer 23

o AAF liability lies in the fact that they provide assistance to the perpetrator/accomplice to avoid liability. AAF don’t only arrive on the scene to assault the victim (like joiner-in), they actually help the perpetrator avoid liability (joiner-in doesn’t do this)

Question 24

Accessories after the fact

What did the Noorodien case state regarding the definition of an AAF?

Answer 24

The court defined AAF → non-participants defined as any person who unlawfully and Intentionally assists the perpetrator and/or accomplices to avoid liability for their crimes after the commission of the offence
- AAF actions occur AFTER the crime (not during the crime)
- * General rule: you cannot be an AAF in your own crime but there are exceptions

Question 25

Accessories after the fact

What is the significance of the Jonathan case in instances of AAF?

Answer 25

• Facts: J (accused 1) and accused 2 and accused 3 and the deceased (D) all shared the same cell in prison. When the warden arrived, D was found dead in the cell. The post-mortem showed that he died bc of suffocation. But it couldn’t be ascertained who caused the death
  – The court based the dilemma on causation. Causation is usually imputed to all the accuseds by common purpose – but they cannot all be convicted as co-perpetrators of murder. So the court held all of them guilty as AAF.
  > an exception to the general rule

Question 26

Accessories after the fact

What did the Mavhungu case state regarding the role of an AAF in the commission of a crime?

Answer 26

**- Facts: **M was convicted of murder in the trial court. The facts showed that M had conspired with miss N to murder miss N’s mother-in-law.They wanted to kill the mom-in-law to remove her body parts for medicinal reasons.
- M was delayed ito arriving to the scene. When M arrived, he discovered that miss N had already murdered someone (not her mom-in-law though). She asked M to help
her remove the body parts.

• M was thus not part of the murder. He only came on the scene after the murder was committed and provided assistance to the perpetrator (miss N). For this reason, M appealed his conviction of murder
• On appeal it was held: M was NOT a perpetrator to the crime, but rather an AAF → he associated himself with the crime afterwards by assisting the perpetrator to remove the body parts. He was accordingly convicted as an AAF