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“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. 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 in the following scenarios:  

  • Where 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;
  • Where words have been omitted, errors have been made, or words unnecessarily inserted.  

Thus, sections 86 and 88 combined create 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 on the following counts:  

  • 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. 

The Supreme Court of Appeal (hereafter “SCA”) considered section 35(3)(a) of the Constitution together with other case law and held that a person can only be convicted on a charge based on the doctrine of common purpose if it is averred in the charge sheet, if the charge sheet is amended to portray the charge in terms of section 86 of the CPA, or if all material elements are proved during trial. 


  • S v Thebus (2003 (2) SACR 319 (CC)) para 18. 
  • Msimango v The State (698/2017) [2017] ZASCA para 14. 

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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Jan Fourie

Director |  Attorney, Notary & Conveyancer | BA. LLB

Jan graduated in 1974 with a five-year BA LLB degree from the University of Stellenbosch, whereafter he was admitted as an advocate and prosecuted as such in the Cape Town and Wynberg Courts. In 1974, he joined Swemmer & Levin as the Candidate Attorney of Mr Levin (founding member) and was admitted as an attorney on 7 April 1976, as a conveyancer on 11 January 1978, and as a Notary on 19 December 1984. Since 1974, he has served in various committees, including the West Coast Chamber of Commerce, the Vredenburg School Committee, and the Malgas Lions Club. 

Furthermore, Jan was the author of the first bilingual law book, The New Debt Collecting Procedures (Die Nuwe Skuldinvorderingsprosedures), which was used by all the Magistrate Courts throughout South Africa. With the founding of the Small Claims Court in Vredenburg, Jan served as one of the first Commissioners. He is currently based at Swemmer & Levin’s Vredenburg office and has been with our firm for more than 47 years.

Pieter Smit

Director | Attorney & Conveyancer | BA. LLB

Pieter obtained his BA Law degree from Stellenbosch University in 1995 and his LLB degree from the North-West University in Potchefstroom in 1998. He served his articles at Marais Muller Attorneys from 1998 to 1999 and was admitted as an attorney in 2000 and as a conveyancer in 2002. Pieter is the founder of PP Smit Attorneys, which opened its doors in 2004. He also became a director of Swemmer & Levin in 2006. Pieter loves the outdoors and participating in all forms of sport, including tennis, golf, fishing, spearfishing, scuba diving, and hiking. 

Johann Maree

Director | Attorney | BA. LLB

Johann matriculated at Oudtshoorn High School and attended Stellenbosch University, where he obtained his BA Law and LLB degrees. Following his studies, he worked for three years as State Prosecutor at the Magistrate’s Court in Cape Town. Johann completed his legal training with the State Attorney in Pretoria and then moved to his hometown, Oudtshoorn, where he worked as a lawyer for a year. In 1983, he finally moved to Vredenburg and joined Swemmer & Levin, where he is still practising as a director. When he is not in the office, Johann enjoys cycling and in his earlier days, he used to be a long-distance junkie.

Richard Phillips

Director | Attorney | Bcom & BProc

After matriculating at Paarl Boys’ High School, Richard completed his BCom and BProc degrees at the University of Port Elizabeth. He served his articles with Van Wyk Fouchee in Paarl and quickly developed an affinity for litigation. Richard has always had a deep love for the ocean and when he was presented with an opportunity to join Swemmer & Levin on the West Coast, he agreed without hesitation and has been with our firm since 1997. Richard specialises in general litigation and divorces. When he is not in the office or with his family, he tries to spend as much time as possible in or on the water.

Jandré Smith

Director | Attorney | LLB

Jandré grew up and matriculated in the small Klein Karoo town of Oudtshoorn. He furthered his studies at the North-West University in Potchefstroom, obtaining his LLB degree during 2015. He completed his articles at Swemmer & Levin in 2017 and was subsequently appointed as a professional assistant. In 2020, Jandré was promoted to the position of director at the firm, where he practises in the Litigation department at our Langebaan office. When not practising law, Jandré is an avid sports fan. He has a passion for nature and enjoys camping, trail running, and mountain biking with his family.

Andre van der Walt

Director | Attorney | LLB

Andre graduated in 2015 with an LLB degree from the University of Pretoria. He later went on to obtain his NQF 7 Certificate in the Administration of Deceased Estates from the University of South Africa, which allowed him to further his career in deceased estates and the drafting of wills and trusts. Andre served his articles at Barnard & Patel Attorneys under the supervision of Mr YAS Patel. After being admitted as an attorney in 2016, he continued working at Barnard & Patel Attorneys as a professional assistant in the deceased estates department.

Andre joined Van Rensburg Attorneys in 2019 and was head of the deceased estates department until 2021. He then received the opportunity to move to the West Coast, where he joined Swemmer & Levin Attorneys. Andre loves travelling and enjoys the beauty that our country has to offer with his friends, family, and loved ones.

Harmann Potgieter

Attorney | LLB

Harmann graduated in 2018 with an LLB degree from the North-West University’s Potchefstroom Campus. He went on to study and grow in various fields, including doing a course on the Consumer Protection Act and a course at the University of South Africa where he obtained his NQF 7 Certificate in the Administration of Deceased Estates.

Harmann completed his articles of clerkship at Swemmer & Levin under the supervision of Mr Richard Phillips. After being admitted as an attorney in 2020, Harmann continued with Swemmer & Levin as a professional assistant in the deceased estates department as well as the litigation department. He loves to study, possesses a deep curiosity about the world, and is dedicated to giving back to the community.

Carla Cloete

Attorney, Conveyancer & Notary | LLB

Carla obtained her LLB at the North West University, Potchefstroom Campus in 2015. She completed her articles in 2017 with Brits Dreyer Inc in Bellville. She is an admitted Attorney, Notary and Conveyancer. After her articles she relocated to Kimberley where she worked as a professional assistant in the Conveyancing department of Van de Wall Inc. Coming back to her Western Cape roots, she now joins the Swemmer & Levin team as a professional assistant.