“If I was present at the scene where my peers committed a crime and I had knowledge of the crime being committed, is that sufficient evidence for a Court to convict me in terms of the doctrine of common purpose even if this is not alleged in the charge sheet or indictment?”

The doctrine of common purpose is defined as an agreement to commit a crime or active association in a joint unlawful enterprise by two or more persons, where each person is responsible for the criminal conduct of the other if it falls within their common design.[1] This may generate certain questions and uncertainties with regards to the accused’s rights and other legislative pieces, such as the Criminal Procedure Act, 51 of 1977 (hereafter the “CPA”).

When searching for your rights as a South African citizen, one must always start at the beginning being the Constitution of the Republic of South Africa, 1996 (hereafter “the Constitution”) which is seen as the primary source of every South African’s rights. Section 32(1)(a) and (b) of the Constitution deals with access to information and holds that everyone has the right to access any information held by the state as well as any information held by another person which is required for the protection or the exercise of any rights. Furthermore, section 35(3)(a) of the Constitution deals with persons who are arrested, detained and accused, and states that every accused person has the right to be informed of the charge with appropriate detail to answer it. The latter, therefore, ensures a person the right to a fair trial. The golden rule, as encompassed in the case of S v Pillay, is that clear and unmistakable language needs to be used in the indictment or charge sheet to inform the accused of the charge he or she needs to meet.

But what if the charge sheet or indictment does not disclose any offence or material element of the crime at all?

Before 1959, if charge sheets or indictments omitted any material element of a crime or did not disclose an offence, even if evidence proved the omitted element during a trial, the accused could not be found guilty. However, this position changed with the CPA, as section 88 states that even if the charge sheet or indictment does not disclose an essential element of the relevant offence, the defect shall be cured upon evidence presented at trial, which proves the element that should have been averred.

Another option to the prosecutor is to amend the charge sheet or indictment. This can be done with section 86 of the CPA, which allows for amendment if a material element of the offence is not averred, if a material difference arose between the allegation in the charge sheet and the evidence that was led, and where words have been omitted, errors have been made, or words unnecessarily inserted. Thus, sections 86 and 88 combined creates the effect that a charge sheet may be amended any time before judgement is made, save that it is not prejudicial to the accused.

The question is whether sections 86 and 88 of the CPA suffice to convict an accused on the doctrine of common purpose if this offence is not alleged in the charge sheet or indictment. The case of Msimango v The State (698/2017) [2017] ZASCA 181 gives clarity on the issue.

In this case, the Appellant together with another accused committed certain crimes. The Appellant was convicted of the crimes being count 1: robbery with aggravating circumstances; count 2: attempted murder, where he shot a victim in the mouth; and count 3: attempted murder, where the other accused assaulted a victim with a meat cleaver. With regard to count 3, the regional magistrate convicted the Appellant on the doctrine of common purpose, even though this was not averred in the charge sheet, nor did this form part of the State’s case against the Appellant.[2]

The Supreme Court of Appeal (hereafter “SCA”) considered section 35(3)(a) of the Constitution together with other case law and held that:

1. If the doctrine of common purpose is not averred in the charge sheet; and

2. If application by the state is not made to amend the charge sheet in terms of section 86 of the    

    CPA; and                           

3. All of the material elements of the offence is not proven at trial;

then the conviction of the Appellant on count 3 cannot stand.[3]

Therefore, based on the above three rules, a person cannot be convicted on a charge based on the doctrine of common purpose unless it is averred in the charge sheet, if the charge sheet is amended to portray it, or if all material elements is proved during trial.