Chapter 19: Participation in crime

Introduction

Our law recognises a variety of ways in which a person may involve him/herself in crime. One may, for example strangle someone to death with one's own hands, stone someone to death jointly with one or more others, keep a lookout while others rob and kill someone, hire someone to kill for you, incite others to commit murder, loan someone a gun with which to kill another, or assist someone to dispose of the dead body, amongst other things.

Socii criminis

This term was used before the leading case on the topic of participation in crime of Williams[1] was decided. It was used to refer vaguely to both perpetrators and accomplices, except those offenders that could be regarded as principal offenders (also called actual/main/direct perpetrators). The term means "partners in a crime". Each socii criminis is a socius criminis (singular). The term relies on the distinction between principal offenders and other participants, which is a distinction that is at least difficult to draw. It also does not distinguish between perpetrators and accomplices, which is an important distinction. The term was rendered obsolete in the case of Williams and its further use is discouraged to avoid confusion.

Categories

In order to conceptualise the degree of the participation in crime, our law distinguishes three categories of offenders:

a.   Participants (involved before or during the crime):

i. Perpetrators;

ii. accomplices; and

b.   Non-Participants (involved after the crime):

Accessories after the fact.

This distinction was adopted by our Appellate Division (now the Supreme Court of Appeal) in 1980 in the case of Williams[2]

A Perpetrator is an offender whose conduct (which may be imputed to him according to the doctrine of common purpose or agency) and mens rea (wrongful mental state) satisfies all the requirements of the definition of the crime.

An accomplice is someone who does not satisfy all the requirements for liability as described in the definition of the prescription (which cannot be rectified by an application of the common purpose doctrine or agency) but s/he nevertheless unlawfully and intentionally furthers the commission of the offence by somebody else.

An Accessory after the fact is someone who unlawfully and intentionally, after the commission of the offence, assists a perpetrator or accomplice to escape liability.

Perpetrators

A perpetrator is an offender who satisfies the definitional elements of the crime in question and harbors the necessary fault. Where there is more than one perpetrator, the perpetrators are referred to as co-perpetrators.

There are three forms of perpetrators:

1)   Personal:[3] where the offender personally satisfies the definitional elements of the crime;

2)   By imputation through:

(a)  Agency;

(b)  common purpose.

Imputation

The conduct of an offence may be attributed to an accused where s/he personally does not satisfy the definitional elements, but either commits the conduct through another who is somehow procured (known as agency) or through others in a common purpose. 

Agency

Conduct may be imputed where the accused (“principal”) commits the unlawful conduct element of the offence through another whom he has procured - according to the principle qui facit per alium facit per se (he who acts through another, acts himself/herself). An example of this sort of liability would be where someone hires an assassin to kill someone.

It is not necessary that the agent must have mens rea in respect of the offence or even that s/he is assisting the “principal”. Also, the agent may be entirely innocent or even lack capacity. Thus, if I procure a person to collect a sack of potatoes for me from a stall, under the false pretense that I have paid for it, I commit the act of collection through the agent, even though the agent performs the act in good faith.

Common Purpose

The so-called doctrine of common purpose allows a court to regard the conduct of every person in a common purpose, to be the conduct of every other person in that common purpose.[4] The effect is that, for any person in a common purpose, our law takes the view that s/he did, naturally, what s/he actually did him/herself, but also what everyone else who s/he is in the common purpose with did. If A and B are in a common purpose to kill P, and, in pursuit of the common purpose, A holds P while B stabs P to death, our law will recognise that A held P, but also regard A as having stabbed P. For B, the same will apply, that not only did B stab P, but that B also held P. The point is that, under common purpose, you do not have to do ‘the deed’ yourself. You merely need to enter into a common purpose with someone who does.

Forms of Common Purpose

Common purpose may take one of two forms: prior agreement or active association.

Prior Agreement

Common purpose by prior agreement arises out of agreement between the participants before the commission of the offence. This agreement comprises the group’s ‘mandate’ which contemplates the objective of the group’s criminal endeavors. It may be express (what was specifically agreed to) or implied (what was merely contemplated).

Extent of Mandate

The extent of the mandate is determined by reference to what is contemplated in the prior agreement. Where there exists a common purpose to commit a crime other than murder, such as robbery, a killing will be attributable as part of the common purpose if it was foreseen as a possibility that ‘someone’ may be unlawfully killed in the execution of their plan.[5] Thus the extent of the mandate and therefore whether conduct falls into the mandate and is attributable is determined by what the accused foresaw and therefore indirectly by the accused’s intention.[6]

Active Association

Common purpose may also arise spontaneously, in the absence of a prior agreement – known as active association.[7]

Requirements for Active Association

The requirements for active association were set out in S v Mgedezi.[8] These requirements have now been endorsed by the Constitutional Court in Thebus.[9]

In the first place, he must have been present at the scene where the violence was being committed. Secondly, he must have been aware of the [offence]. Thirdly, he must have intended to make common cause with those who were actually perpetrating the assault. Fourthly, he must have manifested his sharing of a common purpose with the perpetrators of the [offence]. Fifthly, he must have had the requisite mens rea …[10]

What Common Purpose is Not

Liability Clouds

There is a troubling tendency by some to treat the formation of a common purpose as the relevant conduct in question.[11] This treats common purpose liability as creating some form of ‘liability cloud’.[12] There are a number of problems with this.

It is effectively to treat common purpose as an instance of antecedent liability – having derived from actio libera in causa. But there is no magic in the operation of antecedent liability. It is simply an application of the contemporaneity principle – which requires that all elements of criminal liability (the actus reus and mens rea) must coincide in time.[13] Burchell reiterates:

The basis of actio libera in causa liability is a prior voluntary act (accompanied by the requisite fault element) which is causally linked to the unlawful consequence. All of the elements of criminal liability are present. [The actio libera in causa form of liability is, therefore, neither a form of strict liability nor an application of the rejected versari doctrine.][14]

The problem will inevitably be that this conduct is too remote from the prohibited consequence for it to offer a viable basis for liability. The formation of a common purpose is, of course, conduct, but it is unlikely conduct, which, in the context of consequence crimes, can be regarded as sufficiently closely connected to any prohibited consequence – as required by Mokgethi.[15]

Also, that the accused had not yet done any act by which s/he intended to kill.[16] Presumably an accused does not foresee that, upon entering into an agreement to kill the victim, that the act of agreement may kill the victim – presumably the accused expects that the execution of the agreement will kill the victim.

Furthermore, the formation of a common purpose is personal conduct - conduct which is not imputed. It would be plainly wrong to treat the conduct committed by each common purpose perpetrator, in the formation of the common purpose, as imputed to all others in the common purpose who must perform their own conduct in forming a common purpose. A related problem is that, if common purpose served as some mechanism to analyse the actual conduct of the accused in the formation of common purpose – as the conduct in question – it would serve no purpose. Ordinary principles of liability apply. As Paizes notes:

“The whole point about the doctrine of common purpose in a ‘consequence crime’ is that a remote party (as the appellant was in this case), in respect of whom there is no causal nexus between his own conduct and the prohibited result (in this case the death of the victim), has, in appropriate cases, attributed to him the conduct of an immediate party that is so linked to that result.”[17]

Thus the work that common purpose does is to attribute to each member of a common purpose, the conduct of the others. When invoking common purpose, this is the conduct in question.

Common Purpose and Mens Rea

Beyond this problem, it is worth noting that common purpose only attributes conduct. It does not affect the enquiry into culpability which, as I have argued above, must be applied to the (attributed) conduct in question. The enquiry into capacity and fault proceeds without interference, as one would ordinarily, as if common purpose has not been used to establish the accused’s conduct.[18]

Accomplices

Where the specific requirements of an offence are not met (in that the conduct element is lacking) and one may therefore not be held liable as the perpetrator, one may nevertheless be liable as an accomplice if one unlawfully and intentionally furthers the crime committed by someone else. Accomplice liability, generally[19] arises out of the peculiarity of the definitions of some offences.

Eiehandige misdade (own hands crime).

It is almost invariably the case that accomplice liability is the only form of liability possible where the crime in question is an eiehandige misdaad (own hands crime). “Own hands” crimes crimes which are specifically defined so that they can only be committed by or with one’s own hands or body. For this reason, liability for an own hands crime cannot be imputed. Therefore, where one assists another in the commission of an own hands crime, even if it would trigger the law which would otherwise permit for imputation, one can only at most be convicted as an accomplice. A person who does not commit the particular conduct described in the definition of the prescription but s/he nevertheless promotes or facilitates the commission of the offence, is an accomplice. Examples include bigamy, incest, perjury, driving under the influence. In R v Jackelson,[20] at a time when it was an offence for a black person to be in possession of liquor, a white man who assisted a black man to possess liquor, incurred accomplice liability.

Rape used to be an eiehandige misdaad until it was redefined as a statutory offence and appears to be capable of commission by “causing”.[21] Nevertheless, the case law on rape as an eiehandige misdaad is a useful source of the principles applicable to eiehandige misdade. For instance, in R v M,[22] the court held that a woman who assists a man to commit rape was, at most, an accomplice to the rape.

It is perhaps regrettable that an opportunity to recognise the development in the law on rape was missed recently. In S v Phetoe 2018 (1) SACR 593 (SCA) the court took the view that the mere presence of an accused at the scene of a rape was inadequate to qualify the accused as an accomplice. This is of some concern because it seems to contemplate that - even after the amendment to the definition of rape - one may still be an accomplice to rape. It is submitted that this must be wrong because, on the new definition of rape (under s 3 of the Sexual Offences Amendment Act), rape is now a consequence crime. Thus, if one qualified as an accomplice, one would invariably also have caused the relevant penetration - and therefore be a (personal) perpetrator.

Dependence

The liability of a perpetrator is not dependent upon the guilt of another perpetrator.

In R v Parry 1924 AD the accused was charged, together with H, with murdering H's wife. H was found at trial to have been insane and was therefore not guilty due to mental illness. The accused contended that he too should be acquitted on the basis of the absence of a guilty principal offender. The court convicted the accused of murder on the basis of his own wrongful conduct and state of mind, as a perpetrator.

In contrast, accomplice liability is dependent. There can be no accomplice liability without a perpetrator who commits the crime. In Williams, Joubert JA said:

“An accomplice's liability is accessory [meaning dependent] in nature so that there can be no question of an accomplice without a perpetrator or co-perpetrator who commits the crime. A perpetrator complies with all the requirements of the definition of the relevant crime. Where co-perpetrators commit the crime in concert, each co-perpetrator complies with the requirements of the definition of the relevant crime. On the other hand, an accomplice is not a perpetrator or co-perpetrator, since he lacks the actus reus of the perpetrator. An accomplice associates himself wittingly with the commission of the crime by the perpetrator or co-perpetrator in that he knowingly affords the perpetrator or co-perpetrator the opportunity, the means or the information which furthers the commission of the crime....

The perpetrator need not be tried and convicted, however it is necessary that he or she, if located and prosecuted, could be convicted.[23] Hence, an insane person’s conduct cannot be the basis for accomplice liability.[24]

Furthers

According to Williams,[25] there must be a causal relationship between the assistance of the accused and the commission of the offence by the perpetrator in the sense of “furtherance”. One furthers the commission of offence where one, for instance, assists in, encourages, permits (by placing one's possessions at the disposal of another,[26] advises in, or orders, the commission of the (main) offence.

Unlawful

The furtherance must be unlawful in that there must be no ground of justification for the conduct of the accused. An omission to prevent a crime only qualifies as unlawful furtherance if the legal duty exists according to which one ought to have acted, such as the duty between employer and employee.[27] Hence, accomplice liability is not incurred by an ordinary person for failing to report that a crime is about to be committed. This is because he or she is under no obligation in that respect. The position is different however in respect of the crime of treason and various other relatively new statutory obligations[28] – relating especially to domestic violence and the welfare of children.[29]

Intentional

Accomplice liability may only be incurred by intentionally unlawfully furthering the commission of a crime.  Negligence is not sufficient. Dolus eventaulis is sufficient. Accomplice liability is therefore incurred where one assists/furthers, having foreseen the (real) possibilty (and having reconciled oneself to) the furtherance of the commission of a crime. This intention must extend to all the elements of that (main) crime, including its unlawfulness and illegality.[30]

The requirement of intention for accomplice liability does not alter according to the fault required for the perpetrator’s offence. Even if the perpetrator’s offence is one of strict liability, accomplice liability can only be incurred with intention.

Order of inquiry

The proper order of the enquiry is to first consider whether an accused satisfies the requirements as a:

1.   Personal perpetrator;

2.   perpetrator by agency;

3.   perpetrator by common purpose;

4.   accomplice;

5.   accessory.

Only if an accused's conduct does not fall into one of the categories of perpetrator, should his liability be considered as a possible accomplice, failing which, only then should the question of accessory liability be considered.

The reason for the order is that it is possible that an accused qualifies under more than one category, however, his true criminal liability is the worst case scenario.

Causation

It is necessary to observe that the requirement of causation sometimes determines what role a particular accused played. The effect of causation varies according to the type of participation in question so that it is not possible to set out general universal rules at this point.

Causation and agency liability

In respect of agency liability, if one procures another to commit and offence, one causes that offence to be committed, and therefore, in respect of consequence crimes of which causation is an element, the procurement itself is causal. Thus, to the extent to which this causation will be recognised as both factual and legal causation, one personally complies with the conduct element and therefore it is unnecessary to rely on the principle of agency because one would qualify as a personal perpetrator.

Causation and Accomplice Liability

Snyman[31] submits that the same applies in respect of accomplice liability. He submits that to further a consequence crime is to cause the prohibited consequence. Therefore Snyman argues that if one furthers the commission of a murder, one is (assuming the other requirements) also a murderer. He argues that one cannot be an accomplice to murder.

However, even if the assistance was a sine qua non, it would not necessarily qualify as a legal cause.[32] Also, Appellate Division (now the Supreme Court of Appeal) authority is against this argument. In Williams (1980 AD) the court recognised that the causal conduct of the accused made him liable as an accomplice only.[33]

Common Purpose

While common purpose relieves the prosecution of proving individual causation,[34] it is not relieved of having to prove that actual conduct of someone in the common purpose, or of the group jointly, or of a sub-group of the group acting in common purpose, must satisfy the causation requirement.[35] Thus, properly understood, however dogmatic common purpose may seem, it nevertheless requires that someone or some group within the common purpose, satisfies the causation requirement.

Eiehandige misdade

The conduct requirement of an eiehandige misdade (own hands crimes) cannot be satisfied by imputation. This is because – as discussed above[36] – these crimes can only be committed with a person’s own hands or body.

 


[1] 1980 1 SA 60 A.

[2] Ibid.

[3] This concept is my invention for the sake of the utility that it offers.

[4] Jonathan Burchell South African Criminal Law & Procedure: General Principles of Criminal Law 4th ed Vol 1 (2011) 489; Andrew Paizes ''Mistake as to the Causal Sequence' and 'Mistake as to the Causal Act': Exploring the relation between Mens Rea and the Causal Element of the Actus Reus.' (1993) 110 SALJ 493 496.

[5] Holmes JA in S v Madlala 1969 (2) SA 637 (A) 640-1. The court in S v Nzo 1990 (3) SA 1 (A)(Hefer JA, Nestadt JA concurring, Steyn JA dissenting), adopted Holmes’s dictum in Madlala: ‘... the parties to a common purpose are liable for every foreseen offence committed by any of them in the execution of the design ...’ (ibid 7).

[6] Intention in South African criminal law is widely defined to include dolus eventualis - constructive intention. Dolus eventualis exists when an accused foresees that his/her conduct poses a risk that the prohibited consequence could occur (or a prohibited circumstance could arise), reconciles him/herself to the risk, and persists.(S v Ngubane 1985 (3) SA 677 (A); S v De Bruyn 1968 (4) SA 498 (A)). Academics have however been critical of this conception (R C Whiting 'Thoughts on dolus eventualis' (1988) 1 SACJ; Paul T. Smith 'Recklessness in Dolus Eventualis' (1979) 96 SALJ; E M Burchell, J R L Milton & J M Burchell South African Criminal Law and Procedure: General Principles of Criminal Law 2nd ed Vol 1 (1983) 147ff).

[7] S v Safatsa and Others 1988 (1) SA 868 (A) 898.

[8] S v Mgedezi and Others 1989 (1) SA 687 (A) 705ff.

[9] S v Thebus 2003 (6) SA 505 (CC) para 50.

[10] S v Mgedezi and Others (note 11) 706. It seems that the fifth requirement of mens rea seems to be better understood as a requirement for liability, rather than for common purpose.

[11] This appears to have been the approach of the court in Nkwenja (S v Nkwenja 1985 (2) SA 560 (A)) regarding the finding of culpable homicide of two assailants who agreed to rob the occupants of a car, and in so doing, one assailant struck and killed one of the occupants. Proceeding on the basis that the two had a common purpose, the court found that, at the time of their conduct of entering into the common purpose, they were negligent in respect of the death of the occupants, and thus liable for a conviction of culpable homicide. This all seems straightforward at first, except, upon analysis, it unravels spectacularly. I must credit these insights to Andrew Paizes.

If, as the Court concluded, there was no foresight of the death of either of the occupants at either the time of the formation of the common purpose, or its execution, a killing could not have been fallen in to the mandate of the common purpose (see note 822). As such, there could not be convictions for any form of homicide. The case is therefore a poor lesson in the proper application of common purpose. It is nevertheless useful because it reveals an instance in which the formation of the common purpose is treated as conduct upon which a court may attach criminal liability.

[12] I use this phrase as a bookmark to which I will cross refer the reader.

[13] See the Chapter on Contemporeneity.

[14] Jonathan Burchell South African Criminal Law & Procedure: General Principles of Criminal Law 4th ed Vol 1 (2011) 71.

[15] S v Mokgethi 1990 (1) SA 32 (A).

[16] S v Goosen 1989 (4) SA 1013 (A)Andrew Paizes ''Mistake as to the Causal Sequence' and 'Mistake as to the Causal Act': Exploring the relation between Mens Rea and the Causal Element of the Actus Reus.' (1993) 110 SALJ 493.

[17] Andrew Paizes 'Common Purpose by Active Association: Some Questions and Some Difficult Choices' (1995) 112 SALJ 563; Andrew Paizes ''Mistake as to the Causal Sequence' and 'Mistake as to the Causal Act': Exploring the relation between Mens Rea and the Causal Element of the Actus Reus.' (1993) 110 SALJ 493.

[18] ‘It is … only X’s act which is imputed to Z, not X’s culpability. Z’s liability is based upon his own culpability (intention).’ (Original Emphasis, CR Snyman Criminal Law 5th ed (2008) 266). ‘The liability of an associate in a common purpose to commit an unlawful act depends upon his own culpability (intention).’ (ibid 268).

‘[S]o far as the fault element (mens rea) is concerned, the liability of an individual participant in a common purpose is assessed in the same way as an individual who is not a party to a common purpose. … There is, therefore, nothing special about common-purpose liability in regard to fault (mens rea).(Original Emphasis, Burchell (note 7) 504).

‘Now the liability of a socius criminis is not vicarious but is based upon his own mens rea. The test is whether he foresaw (not merely ought to have foreseen) the possibility that his socius would commit the act in question in the prosecution of their common purpose.’ (Original Emphasis; S v Malinga and Others 1963 (1) SA 692 (AD)).

[19] Although I am unable to think of an exception.

[20] R v Jackelson 1920 AD 486e

[21] The offence of rape is now contained in section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act (No. 32 of 2007), as follows: Rape.—Any person (“A”) who unlawfully and intentionally commits an act of sexual penetration with a complainant (“B”), without the consent of B, is guilty of the offence of rape.

Sexual penetration is defined, in the Act, as follows: “sexual penetration” includes any act which causes penetration to any extent whatsoever by—

the genital organs of one person into or beyond the genital organs, anus, or mouth of another person;

(b) any other part of the body of one person or, any object, including any part of the body of an animal, into or beyond the genital organs or anus of another person; or

(c) the genital organs of an animal, into or beyond the mouth of another person,

[22] R v M 1950 (4) SA 101 (T).

[23] R v Rasool 24 AD 44.

[24] This is known as “streng aksessoriteit” (literally meaning: strict accessoriness however - beware though that we are talking of accomplice liability). Whiting (R C Whiting ‘Principals and accessories in crime’ (1980) 97 SALJ 199) submits that, taken to its logical extreme, an individual who somehow manages to procure an insane person to commit rape (which was then an eiehandige misdaad), would be neither a perpetrator, nor an accomplice. He argues therefore for “beperkte aksessoriteit” (literally meaning: limited accessoriness) – in terms of which the mens rea of the perpetrator would not be required - in the same way as qui facit (agency liability) does not require mens rea on the part of the agent.

[25] S v Williams 1980 (1) SA 60 (A).

[26] R v Jackelson 1920 AD 486.

[27] R v Shikuri 1939 AD 225. In this case an employer was held liable as an accomplice to failing to stop after an accident where he failed to control his employee to do so.

[28] Which this text cannot list in any exhaustive manner.

[29] Such as the obligation on a caregiver of a child to report suspected ill-treatment of a child. Section 110(1) of the Children's Act 38 of 2005 provides: “Any correctional official, dentist, homeopath, immigration official, labour inspector, legal practitioner, medical practitioner, midwife, minister of religion, nurse, occupational therapist, physiotherapist, psychologist, religious leader, social service professional, social worker, speech therapist, teacher, traditional health practitioner, traditional leader or member of staff or volunteer worker at a partial care facility, drop-in centre or child and youth care centre who on reasonable grounds concludes that a child has been abused in a manner causing physical injury, sexually abused or deliberately neglected, must report that conclusion in the prescribed form to a designated child protection organisation, the provincial department of social development or a police official.”

[30] In the sense that the accomplice must foresee the risk that the (main) conduct which s/he is assisting may be prohibited in law as an offence (S v De Blom 1977 (3) SA 513 (A)).

[31] CR Snyman Criminal Law 6th ed (2014).

[32] See the Chapter on causation.

[33] Snyman criticizes the judgement as wrong, but this would require that the court considered the causal nexus established, as a legally relevant cause.

[34] See the Chapter on Causation.

[35] In S v Safatsa (S v Safatsa and Others (note 10)) the court the Appellate Division held that causation may be imputed together with conduct and that it is not at all necessary for the prosecution to prove that each individual accused in a common purpose caused the death of the victim. This ruling is prone to misunderstanding because it may be given two possible interpretations:

3.   That causation is irrelevant in consequence crime when common purpose is invoked. This is a misunderstanding of what common purpose permits and of the Safatsa judgment.

4.   The second, correct interpretation is that, although each individual accused need not have actually caused the death of the victim, s/he must be deemed to have caused it through the conduct that is imputed to him/her. this requires in turn, that the conduct which is imputed to the individual must satisfy the causation requirement, and that the actual conduct of someone in the common purpose, or of the group jointly, or of a sub-group of the group acting in common purpose, must satisfy the causation requirements. See Jonathan Burchell South African Criminal Law & Procedure: General Principles of Criminal Law 4th ed Vol 1 (2011) 489.

[36] Under the heading “Eiehandige misdade (own hands crime).” on page 237ff.