¹ See Parker, P. and Mokhesi-Parker, J., Justice on Trial: Apartheid and the Criminal Law, forthcoming.Google Scholar

² Kock, C. de, “Revolutionary violence in South Africa”, in Vuuren, D. van et al. (eds.), South Africa: The Challenge of Reform, Pinetown, 1988.Google Scholar

³ In an interview to the press in 1987 Chief Justice Rabie said: “The situation in the country is pretty near that of a civil war. It is naive to think you can quell it by bringing people to court.” See Sunday Star, 3 May, 1987, and the discussion by Davis, D., “The ChiefJustice and the total onslaught”, (1987) 3 South African Journal on Human Rights 229–233.Google Scholar

⁴ Public violence is denned in the law books (e.g. Hunt, P. and Milton, J., South African Criminal Law and Procedure Vol. II Common-law Crimes (2nd ed.), Cape Town, 1982 at 77)Google Scholar as the unlawful and intentional commission with others of a serious act which is intended forcibly to disturb public peace or to invade the rights of others. Ss. 46–53 and 57 of the Internal Security Act 74 of 1982 empower the minister of law and order to ban gatherings for any length of time or a magistrate for up to 48 hours in his district, or a policeman with the rank of warrant officer any gathering at which violence to person or property threatens. Attending a banned meeting is an offence, and a policeman of the rank of warrant officer may disperse such a gathering with force.

⁵ The remnants of jury trials were abolished by the Abolition of Juries Act 34 of 1969. Normally, a judge fulfils the functions of judge and jury. However, where he thinks he might impose a death sentence, he is required to appoint two assessors to help him try the case (s. 145(2) of the Criminal Procedure Act 51 of 1977). They all decide issues of fact on the judge's directions as to the law. These assessors are usually salaried magistrates and retired lawyers. See Smit, D. van Zyl and Isakow, N., “Assessors and criminal justice”, (1985) 1 South African Journal on Human Rights 218–235.CrossRefGoogle Scholar

⁶ S. 258 of the Criminal Procedure Act 51 of 1977.

⁷ Under this test an Adam and Eve would be found innocent but only because they could not have foreseen the particular result of biting on the apple. The difficulties philosophers have in formulating a rigorous theory of causation are evident in Sosa, E. (ed.), Causation and Conditionals, Oxford, 1975.Google Scholar

⁸ Kadish, S., Blame and Punishment: Essays in the Criminal Law, New York, 1987 ch. 8 at 143 and 160.Google Scholar

⁹ The position would, of course, be different if the jemmy, gun etc. were sold with a particular crime in mind.

¹⁰ See Kadish, S., op. cit., at 161–162Google Scholar, who points out that under U.S. law the shrieking but irrelevant bystander might still be liable for the separate crime of incitement. Although Kadish's account of the role of causation in complicity has been criticized by Professor Ashworth as superfluous on the ground that it is covered by the de minimis rule, i.e. that causal impossibility is equivalent to “a minimal cause which people of common sense would overlook”, there is, as we shall see, an advantage in making liability hinge on something less malleable than a perception of the minimal. See Ashworth, A., citing the words of Devlin, J., in Principles of Criminal Law, Oxford, 1991 at 102 and 367.Google Scholar

¹¹ For general accounts of the purist movement, see Proculus, “Bellum juridicum: two approaches to South African law”, (1951) 68 South African Law Journal 306–313Google Scholar; Proculus Redivivus, “South African law at the crossroads or what is our common law”, (1965) 82 South African Law Journal 17–25Google Scholar; Cameron, E., “Legal chauvinism, executive mindedness and justice—L.C. Steyn's impact on South African law”, (1982) 99 South African Law Journal 38–75Google Scholar; Blerk, A. van, “The genesis of the‘modernist’-‘purist’ debate: a historical bird's-eye view”, (1984) 47 THRHR 255–279Google Scholar; and Forsyth, C., In Danger For Their Talents: A Study of the Appellate Division of the Supreme Court of South Africa from 1950–1980, Cape Town, 1985 at 181–224.Google Scholar

¹² Regal v. African Superslate (Ptf) 1963 (1) SA 102 (A), discussed by Cameron, E., op. cit., at 43–52Google Scholar, and Forsyth, C., op. cit, at 198–200.Google Scholar

¹³ See Jordaan v. Van Biljon 1962 (1) SA 286Google Scholar (A), Craig v. Voortrekkerpers Bpk. 1963 (1) SA 149Google Scholar (A) and Nydoo v. Vengtas 1965 (1) SA 1Google Scholar (A)—the cases that sounded the advance; and Suid-Afrikaanse Vitsaaikorporasie v. O/Matty 1977 (3) SA 394 (A)Google Scholar and Pakendorf v. De Flamingh 1982 (3) SA 146 (A)Google Scholar—those which beat the retreat. The whole issue is thoroughly discussed by Boberg, P., “Defamation South African style—the odyssey of animus injuriandi”, in Visser, C. (ed.), Essays in Honour of Ellison Kahn, Cape Town, 1989, 35–61.Google Scholar

¹⁴ S v. De Blom 1977 (3) SA 513 (A).Google Scholar

¹⁵ S v. Van der Mescht 1962 (1) SA 521 (A)Google Scholar and S v. Bemadus 1965 (3) SA 287 (A).Google Scholar

¹⁶ Apart from J. De Wet and H. Swanepoe's Strafreg, three other authorities were cited, two being academics from the Afrikaner universities of Potchefstroom and Pretoria and the third a legal adviser in the government.

¹⁷ Williams, G., Criminal Law. The General Part (2nd ed.), London, 1961 at 382Google Scholar uses the phrase “psychological causation” when discussing the basis of an accessory's liability. Judge Botha in the Sharpeville Six judgment attacked the concept as being “so nebulous that it is practically incapable of effective application”. See below.

¹⁸ See, for example, Snyman, C., Criminal Law (2nd English ed.), Durban, 1989 at 270–272Google Scholar, and Whiting, R., “Principals and accessories in crime”, (1980) 97 South African Law Journal 199–204 at 201Google Scholar, where on the basis of this argument the author writes: “the plain truth is that there can be no such thing as an accessory in a homicide”.

¹⁹ See Smith, K., A Modem Treatise on the Law of Criminal Complicity, Oxford, 1991 at 110–113Google Scholar. G. Williams also points out that in England the basis of liability can still have important consequences: an accessory, for example, can raise the defence of duress but a perpetrator cannot. (See Williams, G., Textbook of Criminal Law (2nd ed.), London, 1983, at 333.)Google Scholar Furthermore, when s. 5(2) of England's 1957 Homicide Act was in force, only those who had actually killed or used force against their victim could be hanged for murder, a distinction which saved many accomplices from the noose.

²⁰ S. 78. See Rabie, M., “The doctrine of common purpose in criminal law”, (1971) 88 South African Law Journal 227–245 and 334–345 at 229.Google Scholar This is the fullest account of the early history of the common purpose rule in South Africa.

²¹ McKenzie v. Van der Merwe 1917 AD 41 at 46–47.Google Scholar

²² There is an exception. In 1920 the common purpose rule was used to convict over 160 pupils of public violence, following a disturbance at Lovedale Training Institution, a mission school founded by the Free Church of Scotland. The index to the South African Law Reports discloses that this case was only cited once between 1947 and 1990 (and then in Southern Rhodesia), perhaps because the convictions were based on very thin and creatively interpreted evidence. See R v. Taylor 1920 EDL 318.

²³ R v. Mbande 1933 AD 382 at 393–394.Google Scholar

²⁴ R v. Gamsworthy 1923 WLD 17Google Scholar. McKenzie v. Van der Merwe was referred to (at 18) but only by the prosecution, and the word “mandate” was not used.

²⁵ R v. Ngcobo 1928 AD 372 at 376Google Scholar. In so far as the earlier case of McKenzie v. Van der Merwe established a useful precedent, the court (at 376) was keen to ensure the beneficiary was not the defence: “But the limitations applied in that case are not applicable here. That case laid down that in the case of rebellion where people are banded together for any purpose such as rebellion against the constituted authority it does not follow that each rebel is liable for the acts of every other rebel, no matter in what part of the country committed.”

²⁶ R v. Matsitwane 1942 AD 213 at 219.Google Scholar

²⁷ Similarly in R v. Longone 1938 AD 532 at 538Google Scholar the language of common purpose (“authorised”) was used without reference to the phrase or the role. Judge Watermeyer acquitted a Mr Longone of murder. The man had supplied another with arsenic, knowing it would be used to kill that man's wife; instead it was unwittingly drunk by a third person in circumstances which Mr Longone could not have foreseen and which had not been “assented to or authorised by him”.

²⁸ R v. Duma 1945 AD 410 at 420.Google Scholar

²⁹ Ibid., at 416. Ignore for a moment the judge's assertions that those found leaving an area with sticks must have had them when they chased the person, and that when natives run after a man with sticks they will necessarily do so intending to assault, rather than, for example, out of a ghoulish curiosity, or to scare him or chase him away.

³⁰ Ibid., at 418.

³¹ R v. Shezi 1948 (2) SA 119 (A) at 128.Google Scholar

³² Ibid., at 122.

³³ In R v. Mkize 1946 AD 197 at 206.Google Scholar

³⁴ McKenzie v. Van der Merwe at 46. Villiers, J. de, Macintosh, J. and Silke, J., in The Law of Agency in South Africa (3rd ed.), Cape Town, 1981, at 538Google Scholar observe that so long as the agent is not the “servant” of the principal, “then the principal is liable in damages for the delicts of the agent only is such delicts were either specifically authorised … or committed actually in obtaining the authorised result”. McKenzie v. Van der Merwe is cited as an example of this rule at 543.

³⁵ R v. Mkize at 206.

³⁶ See Williams, G., “The mens rea for murder: leave it alone”, 105 (1989) L.Q.R. 387–397Google Scholar for why judgment based on hunch is a poor approach to the law.

³⁷ Thus Greenberg, J., for example, in R v. Mgxwiti 1954 (1) SA 370 (A) at 375A–BGoogle Scholar: “The defence both of the appellant and No. 2 accused was an alibi which was rejected. One result of the nature of the defence advanced is that on points in the evidence given on behalf of the Crown where their evidence may have been of importance, there is nothing to contradict the Crown witnesses.”

³⁸ The first of these judgments was R v. Mkize at 197 and 204–205. From 1949 to 1989 there were somewhat over 70 reported common purpose cases, and common purpose was referred to as a “doctrine” by South African courts on six occasions and as a “principle” on two. Rhodesian courts referred to it as a “doctrine” once. It may be noted that when it was first used in South Africa the common purpose rule was described as a doctrine by defence counsel in R v. Garnsworthy and by the judges in R v. Tailor.

³⁹ R v. Chenjere 1960 (1) SA 473 (FC) at 476D.Google Scholar

⁴⁰ S v. Maxaba 1981 (1) SA 1148 (A) at 1149H.Google Scholar Viljoen, J., was echoing the words of Burchell, E. and Hunt, P., South African Criminal Law and Procedure Vol. I General Principles of Criminal Law, Cape Town, (1st ed.) 1970, at 363Google Scholar, (2nd ed.) 1983, at 430, that, “there is nothing magical about the doctrine of common purpose”.

⁴¹ The legal purists savaged the idea of basing any kind of common purpose on a mandate, arguing that since it is illegal to contract to commit a crime, an unlawful mandate is itself illegal and invalid, and cannot, therefore, form the basis of criminal liability. See, for example, Rabie, M., op. cit., at 237.Google Scholar This criticism appears to confuse the existence of a mandate with its validity and enforceability at law.

⁴² R v. Mtembu 1950 (1) SA 670 (A) at 678.Google Scholar

⁴³ R v. Mgxwiti at 383A.

⁴⁴ Ibid.

⁴⁵ In R v. Mlooi 1925 AD 131 at 152Google Scholar Kotzé, J., had cited with approval the description by Boehmer, an 18th-century jurist, of ratification as “an exploded notion”.

⁴⁶ R v. Thomo 1969 (1) SA 385 (A) at 399H.Google Scholar

⁴⁷ Figures for the number of group murder trials do not exist. In 1987 Botha, J., said that “cases involving a common purpose … arise practically daily in the criminal courts of our country”. See S v. Safatsa 1988 (1) SA 868 (A) at 894I.Google Scholar Only a fraction of these are reported.

⁴⁸ R v. Tsosane 1951 (3) SA 405 (O) at 408A–B.Google Scholar

⁴⁹ The phrase is Holmes J.'s in R v. Dladla 1962 (1) SA 307 (A) at 311A.

⁵⁰ Ibid., at 311G. The judge had tried to strengthen his imputation by describing (at 311D) Mr Mthembu as “armed with two sticks”.

⁵¹ S v. Macala 1962 (3) SA 270 (A) at 272H–273A.Google Scholar

⁵² R v. Nemashakwe 1967 (3) SA 520 (RAD) at 523B–E.Google Scholar

⁵³ A point made by Schreiner, J., in R v. Motaung 1961 (2) SA 209 (A) at 210H–211A.Google Scholar

⁵⁴ S v. Bvuure (2) 1974 (1) SA 208 (R) at 209–210.Google Scholar

⁵⁵ Ibid., at 211E.

⁵⁶ S v. Bvuure 1974 (2) SA 24 (RAD) at 25D–E.Google Scholar The judgment continues: “His mens rea, therefore, on the application of the test set out in R v. Nemashakwe and Others, has been abundantly proved …”.

⁵⁷ S v. Thomo at 398F.

⁵⁸ Ibid., at 399B.

⁵⁹ Ibid., at 399H–400A.

⁶⁰ E.g. Hugo, J., “Common purpose and causation”, (1969) 86 South African Law Journal 391–396.Google Scholar

⁶¹ Snyman, C., Criminal Law (1st English ed.), Durban, 1984 at 215–216.Google Scholar

⁶² The judgment was given on 1 December, 1987, but did not appear in the South African Law Reports until 1988.

⁶³ S v. Zigqolo 1980 (1) SA 49 (A).Google Scholar

⁶⁴ S. 1 of the Riotous Assembly Act 17 of 1956.

⁶⁵ R v. Kahn 1955 (3) SA 177 (A) at 180B.Google Scholar The party was given by the anti-Apartheid activists Brian and Sonia Bunting.

⁶⁶ Ibid., at 184A, and 184G–185A.

⁶⁷ S v. Zigqolo at 57E.

⁶⁸ Ibid.

⁶⁹ Ibid., at 59F.

⁷⁰ Ibid., at 59G.

⁷¹ Ibid., at 59H.

⁷² S v. Khoza 1982 (3) SA 1019 (A)Google Scholar. Corbett, J., voted to reduce the murder conviction and nine-year gaol term to one of attempted murder and four years in gaol, and Holmes, Joubert and Hoexter, J.J., to replace the verdict with one of common assault and four months imprisonment.

⁷³ Ibid., at 1049H.

⁷⁴ Ibid., at 1052D.

⁷⁵ R v. Dladla at 311G.

⁷⁶ S v. Khoza at 1052B.

⁷⁷ Ibid., at 1052F–G.

⁷⁸ R v. Wilkens 1941 TPD 276 at 289Google Scholar and R v. Sebeso 1943 AD 196 at 206.Google Scholar

⁷⁹ R v. Mtembu 1950 (1) SA 670 (A) at 685.Google Scholar

⁸⁰ R v. Mgxwiti at 374, R v. Du Randt 1954 (1) SA 313 (A) at 317.Google Scholar

⁸¹ In 1962 in S v. Macala at 273 association was used as a test for mens rea and the accused's convictions were overturned, and in 1968 the word was used as a test for a criminal act when association rather than active participation in a security crime was judged sufficient for guilt, see S v. Tuhadeleni 1969 (1) SA 153 (A) at 180D-HGoogle Scholar. And in spite of Young, J.'s attempt in Rhodesia to hold that, “mere association with the common purpose is not enough” (R v. Masuka 1965 (2) SA 40 (SR) at 42G)Google Scholar, association was used there as a test in two of the leading common purpose cases—R v. Nemashakwe at 522B and 524D and S v. Bvuure (2) at 212A.Google Scholar

⁸² The word “association” was used in about three-quarters of the group murder judgments of the 1980s.

⁸³ S v. Williams 1980 (1) SA 60 (A) at 63E.Google Scholar The judgment is in Afrikaans. The translation is the official one, though “associates” might also be translated as identifies.

⁸⁴ The closest to a discussion of what active association might mean was the comment of Goldin, J., in 1989: “Active association involves doing an act”. S v. Memani 1990 (2) SACR 4 (TkA) at 7e.Google Scholar

⁸⁵ S v. Khoza at 1053H.

⁸⁶ Snyman, , op. cit., at 214.Google Scholar His substantive reasons were first, because it redefined murder by discarding causation, and secondly, because the replacement, “association”, was so close to the idea of ratification that “an adoption of the former must necessarily lead to an application of the latter—something which would be completely foreign to the principles of our law”.

⁸⁷ Except for an advocate, one J. Slovo, who referred to the two kinds of common purpose in S v. Mgxwiti at 371A–B.

⁸⁸ Whiting, R., “Joining in”, (1986) 103 South African Law Journal 38–54 at 39.Google Scholar

⁸⁹ S v. Mgedezi 1989 (1) SA 687 (A) at 705I–706C.Google Scholar

⁹⁰ In fact, the allegations rested on contradictory prosecution evidence and specious reasoning, points that are thoroughly examined in P. Parker and J. Mokhesi-Parker, op. cit.

⁹¹ S v. Safatsa at 894G.

⁹² Ibid., at 901B-D. Those in Botha's sights were Viljoen, J., in S v. Maxaba at 1156F–G, and Professor Snyman who insisted that causation was fundamental. See Snyman, , op. cit. (1984), at 213–215.Google Scholar

⁹³ S v. Safatsa at 8991.

⁹⁴ Ibid., at 899H.

⁹⁵ Ibid., at 900I–901A.

⁹⁶ Ibid., at 901A–B.

⁹⁷ Snyman, op. cit. (1989), at 259.

⁹⁸ S v. Safatsa at 901D–E.

⁹⁹ Snyman, , op. cit. (1984) at 212–213 and (1989) at 258.Google Scholar Nevertheless, at 261 the brave professor managed to murmur that the appeal court “may conceivably be criticised …”.

¹⁰⁰ For an account of some of the crowd trials in this period see Foster, D., “Expert testimony on collective violence”, in Hansson, D. and van Zyl Smit, D. (eds.), Towards Justice? Crime and State Control in South Africa, Cape Town, 1990, 154–172.Google Scholar

¹⁰¹ S v. Jama 1989 (3) SA 427 (A) at 439D.Google Scholar See also S v. Mgedezi at 703B “a view of the totality of the defence cases cannot legitimately be used as a brush with which to tar each accused individually”; and S v. Khumalo 1991 (4) SA 310 (A) at 315G–HGoogle Scholar: “the appellants had appeared before the Court as individuals and the Court could not find any appellant guilty unless it was proved beyond reasonable doubt that the appellant had the intention to kill. The trial Court had made the finding of intention to kill on a generalised basis: it had been found that all the appellants had the necessary intention because the crowd had had the intention.”

¹⁰² S v. Khumalo at 316B–C.

¹⁰³ Steyn, J. P., Bloem v. State President of the Republic of South Africa 1986 (4) SA 1064 (O) at 1068B.Google Scholar

¹⁰⁴ Lord Scarman's comments are reported in the Star, 18 April, 1988.

¹⁰⁵ The Times, 16 March, 1988.

¹⁰⁶ The expression and figures are those of the Ministry of Justice. See Murray, C. and Sloth-Nielsen, J., “Hangings in South Africa: the last ten years”, (1988) 4 South African Journal on Human Rights 391–394 at 393.Google Scholar

¹⁰⁷ This application to the Appellate Division for leave to appeal against the judgment of the lower court centred on whether the Supreme Court had the jurisdiction to reopen a case once judgment had been given. Exceptionally, the application—Sefatsa v. Attorney-General, Transvaal 1989 (1) SA 821Google Scholar (A)—was heard by a full bench of five judges on 7 September, 1988. Judgment against the Six was given on 23 November; later that day President P.W. Botha commuted the death sentences.

¹⁰⁸ The foremen had aroused this hostility because they had begun to carry weapons and were threatening to attack various miners, in response, they said to being called mpimpis. See S v. Mgedezi at 696C–H.

¹⁰⁹ In many crowd murder trials of this period the figure of a hundred is cited. The figure should probably be interpreted biblically.

¹¹⁰ Sv. Mgedezi at 705I–706C.

¹¹¹ S v. Motaung 1990 (4) SA 485 (A).Google Scholar One of the appellants in Mgedezi (706G–708F) who had joined in an attack after the fatal blow had been delivered saw his murder conviction reduced to assault with intent to cause grievous bodily harm. The appeal court, however, did not discuss the appellant's potential liability for having joined in.

¹¹² S v. Motaung at 521B.

¹¹³ See S v. Nzo 1990 (3) SA 1 (A)Google Scholar and the discussion by Burchell, J., “S v. Nzo 1990 (3) SA 1 (A)Google Scholar common purpose liability”, (1990) 3 South African Journal of Criminal Justice 345–354.Google Scholar

¹¹⁴ Evidence to this effect by Professor Edward Diener, a leading exponent of the psychological theory of deindividuation, was described by the Appellate Division (S v. Motaung at 5071) as “fanciful and unsound”.