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Title:South Africa and the common purpose rule in crowd murders
Author:Parker, Peter
Periodical:Journal of African Law
Geographic term:South Africa
Subjects:criminal procedure
Abstract:The common purpose rule was imported into South Africa from England by the 1886 Native Territories' Penal Code. It was first cited by the Appellate Division in 1917. In subsequent cases the courts ignored the principles of complicity. Lacking an understanding of the basis of the common purpose rule, they reached for the phrase 'active association', which they refused to define, though they made it the cornerstone for criminal liability, and used it in a malleable way to clear the barrier of causal impossibility. The judges compounded the likelihood of injustice by recognizing the existence of the spontaneously generated common purpose and failing to address the question of hindsight. They resorted to teleological reasoning when they wished to convict - because something happened, therefore it was meant to happen - and when they did not, they pointed out that there was no evidence people acted in concert, and therefore no possibility of attributing to them the acts of others. In the 1980s South Africa's Appellate Division reinterpreted the common purpose law in order to facilitate convictions in crowd murders. However, after the international storm that attended the Sharpeville Six judgments, judges grew sensitive to international opinion and rather less so to the needs of punishing those who challenge the social order. This piecemeal retreat has left the law in a state of incoherence. Notes, ref.