Is doc­trine of com­mon pur­pose just?

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to cases of cul­pa­ble homi­cide i.e. killing with­out in­ten­tion, theft and fraud.

Another crit­i­cism of this doc­trine, is that though its ap­pli­ca­tion may in cer­tain in­stances, be jus­ti­fied on the ground that the par­tic­i­pants acts amounted to a uni­tary act or col­lec­tive act, each par­tic­i­pant’s li­a­bil­ity is based on his par­tic­i­pa­tion in the col­lec­tive act which caused the death of the vic­tim.

How­ever, the con­cept of a col­lec­tive act, in which the “act” is broad­ened so as to in­clude the to­tal on­slaught by a num­ber of peo­ple on the life of the de­ceased, as con­trary to the gen­er­ally ac­cepted prin­ci­ple that an “act” in crim­i­nal law has to be a vol­un­tary act. This is gen­er­ally re­ferred to as the de­fence of au­toma­tism in our law.

In R vs Dlamini, on a charge of mur­der it ap­peared that the ac­cused who shared a hut with the de­ceased and oth­ers, had just half-awak­ened out of a night­mare when he stabbed the de­ceased three times with a knife as the lat­ter has stooped down to pick up a mat where the ac­cused was sleep­ing. The court held that he was act­ing with­out mo­tive, with­out vo­li­tion and with­out in­ten­tion. Vol­un­tari­ness to the act there­fore in the prin­ci­ple of com­mon pur­pose is lack­ing which is the ba­sic es­sen­tial el­e­ment in crim­i­nal law.

The other crit­i­cism of the doc­trine is that this con­vic­tion is based on im­plied man­date which is a prin­ci­ple of the law of con­tract and it is sub­mit­ted, can­not there­fore be read­ily ap­plied in crim­i­nal law. The sim­plest ex­am­ple is that of a pas­sen­ger who boards a bus to ferry him to his des­ti­na­tion, thereby en­ter­ing into con­tract of car­riage, the price be­ing the fixed or nor­mal face.

The other crit­i­cism of this doc­trine is that it is re­pug­nant to the gen­eral prin­ci­ples of crim­i­nal law that a per­son can be held li­able only in re­spect of oc­cur­rences which he caused.

One of the es­sen­tial el­e­ments of a valid con­tract which the doc­trine im­pliedly seems to

Shao Makhethe Jone. have in­voked is that the prom­ise made for an illegal or im­moral pur­pose, as for in­stance, to com­mit fraud or homi­cide, killing of a hu­man be­ing, is void. On the ba­sis of this ar­gu­ment there­fore, some scholars, aca­demics and lawyers do not ap­pre­ci­ate nor agree with the con­tention that a per­son can be held crim­i­nally li­able on the ba­sis of a man­date that is in­valid and con­trary to good public mo­rals.

The doc­trine of com­mon pur­pose there­fore im­putes crim­i­nal li­a­bil­ity on the par­tic­i­pants in­volved in crim­i­nal li­a­bil­ity for all that re­sults from such ac­tiv­ity. The par­ties must share a com­mon pur­pose and make it clear to each other by their ac­tions that they act­ing on their com­mon in­ten­tion, so that each mem­ber of the group as­sumes re­spon­si­bil­ity for the other mem­bers of the group.

In view of this crit­i­cism and the re­quire­ments for the ap­pli­ca­tion of the doc­trine of com­mon pur­pose, it would make for a very in­sight­ful public dis­course on the mer­its and de-mer­its of this im­por­tant doc­trine of our crim­i­nal law among, scholars, aca­demics and lawyers. It would fur­ther guide the courts on how best to ap­ply or re­fine the doc­trine so as to reach a jus­ti­fi­able ver­dicts.



US Am­bas­sador to Le­sotho Matthew Har­ring­ton.

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