COMMON PURPOSE TO BE AVERRED IN CHARGE SHEET

S v MSIMANGO 2018 (1) SACR 276 (SCA)

 

General principles of liability — Common purpose — Essential for averment in charge-sheet that state relying on common purpose — Reliance on common purpose in absence of such averment inimical to notion of right to fair trial.

 

The appellant was convicted in a regional magistrates’ court of robbery with aggravating circumstances and attempted murder. His appeal against his convictions to the High Court having been dismissed, he brought the present appeal with leave of the Supreme Court of Appeal. It appeared that the conviction for attempted murder had been based solely on the doctrine of common purpose, even though it had not been averred in the charge-sheet that he had acted in common purpose, nor had the fact that he had acted in common purpose been proved in evidence.

Held, that the approach of the regional magistrate of relying on common purpose, which was mentioned for the first time at the end of the trial, was inimical to the spirit and purport of s 35(3)(a) of the Constitution and was subversive of the notion of the right to a fair trial contained in that section. (See [15].) The conviction and sentence on the count of attempted murder were accordingly set aside. The appeal against the conviction on the remaining count was dismissed.

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