Case CCT73/17
[2019] ZACC 04

Hearing Date : 01 March 2018
Judgement Date:14 February 2019

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Thursday, 14 February 2019 at 10h00 the Constitutional Court handed down judgment in an application for leave to appeal against a judgment of the Full Court of the High Court of South Africa, North West Division, Mafikeng (Full Court). The Full Court dismissed an appeal against the conviction of the applicants, Mr Shane Jacobs, Mr Frank Anthony and Mr Sulaiman Ferris, by the High Court of South Africa, North West Division, Mafikeng (High Court) for the murder of Mr Patrick Abakwe Modikanele (the deceased).

On 19 December 2010 the deceased was accused of stealing the cell phone of the second applicant’s daughter. He was then assaulted by community members for the alleged theft. This assault started at a local shop called Busy Corner. The assault at Busy Corner was classified by the High Court as stage one of the attack. Thereafter, the assailants marched the deceased to the second applicant’s home where he was assaulted by the three applicants. The events at the second applicant’s home were classified as stage two of the attack. The deceased was rushed to hospital where he later died as a result of a head injury sustained during the assault.

The applicants were charged with the murder of the deceased in the High Court. They all pleaded not guilty to the charge. The High Court found the applicants guilty of murder on the grounds of the common purpose doctrine. The High Court sentenced the first applicant to 18 years imprisonment and the second and third applicants to 15 years each. The Full Court granted them leave to appeal against conviction but not against sentence. The Full Court found that the assaults at the two locations were part of one continuous act, that the applicants had acted with a common intention to injure the deceased gravely and that they must have foreseen the possibility of his death when they each participated in the assault.

The Full Court dismissed the appeal against the conviction and the Supreme Court of Appeal refused leave to appeal.

Before the Constitutional Court the applicants argued that the doctrine of common purpose was incorrectly applied by the Full Court which failed to consider the fact that none of the applicants were present or took part in stage one of the assault. The applicants submitted that due to the misapplication of the common purpose doctrine, their rights to freedom under section 12 of the Constitution and to a fair trial under section 35 of the Constitution have been infringed.

In a split decision by the Court, the first judgment penned by Goliath AJ, with Cachalia AJ, Froneman J, Khampepe J and Madlanga J concurring, held that the applicants had failed to identify a constitutional issue or a point of law of general public importance which the Court ought to consider. The first judgment, therefore, held that the application for leave to appeal fell to be dismissed on the basis that the Court did not have jurisdiction to entertain the matter.

In a second judgment written by Theron J, in which Zondo DCJ, Dlodlo AJ, Jafta J and Petse AJ concurred, Theron J held that this Court has jurisdiction as the matter raises a constitutional issue. In respect of the merits, Theron J held that because the High Court did not find that the applicants had been present at the scene of the crime when the fatal blow was struck, the High Court had misapplied the doctrine of common purpose. The appeal would have thus succeeded on this ground. Justice Theron would have altered the conviction of murder to one of grievous bodily harm and remitted the matter to the High Court to determine an appropriate sentence.

A third judgment penned by Froneman J, Cachalia AJ and Madlanga J concurring, concurred in the first judgment’s conclusion that the Constitutional Court’s jurisdiction was not engaged. Relying on previous cases of the Constitutional Court Froneman J held that there were no compelling reasons in the present case to justify a deviation from the established principle that the mere misapplication of an accepted common law rule by a High Court or the Supreme Court of Appeal does not ordinarily raise a constitutional issue. Froneman J held that the present case revolves around facts, not legal or constitutional issues. Accordingly, he concurred in the first judgment that leave to appeal not be granted.

In a fourth judgment Zondo DCJ concurred in the second judgment but wrote separately on whether the Constitutional Court had jurisdiction to deal with this matter. Zondo DCJ took the view that this matter is about the proper application of the doctrine of common purpose. He further pointed out that this doctrine is based on public policy which represents the legal convictions of the community. He referred to the jurisprudence of the Constitutional Court to the effect that public policy is now represented by the values contained in our Constitution. In the light of the fact that the doctrine of common purpose is based on public policy which is represented by our constitutional values, Zondo DCJ held that the proper application of the doctrine is a constitutional matter. He concluded that the Constitutional Court therefore had jurisdiction.

In the result, five members of the Court held that leave to appeal should not be granted as set out in the judgment of Goliath AJ and five members held that leave to appeal should be granted and the appeal must succeed to the extent set out in the judgment by Theron J. There is thus no majority decision of this Court. Thus the judgment and order of the Full Court stands.                                  

The Full judgment  here.