- Title
- The application of the doctrine of common purpose to the joint possession of firearms
- Creator
- Mnono, Zimbini
- Subject
- Gqeberha (South Africa)
- Subject
- Eastern Cape (South Africa)
- Subject
- Firearms--Law and legislation
- Date Issued
- 2021-04
- Date
- 2021-04
- Type
- Master's theses
- Type
- text
- Identifier
- http://hdl.handle.net/10948/51197
- Identifier
- vital:43225
- Description
- According to the South African criminal justice system, where two or more people in a joint unlawful enterprise associate to commit a crime with only one participant carrying a firearm, the principles of joint possession are used to secure successful prosecution of the participants for joint possession of the firearm. However, up to date, the State is yet to see a conviction based on the application of these principles. S v Khambule marks the first case in which the doctrine of common purpose was used to secure a conviction of multiple accused for the crime of joint possession of firearms. The case has become outdated law following the Supreme Court of Appeal decision in S v Mbuli where the court found that the doctrine could not be applied to circumstance crimes such as joint possession of firearms. Both cases have received enormous criticism from academics and in subsequent judgments. One main criticism relates to whether the failure to apply the doctrine of common purpose is consistent with the current law and constitutional freedoms, such as the right to be free from all forms of violence and the right to equal benefit of the law. The purpose of the dissertation is to evaluate the jurisprudence on the application of the doctrine of common purpose to the joint possession of firearms. The evaluation includes an analysis of the principles of joint possession in the context of constitutional rights as well as contributions made by academics such as Burchell. The commonpurpose doctrine does not extend to joint possession of firearms. This is as a result of firstly, the absence of causation from the definitional elements of the crime; secondly, the mental aspect of possession; thirdly, the principles of joint possession as the basis of liability for joint possession of firearms; and lastly due to the nature of the crime of joint possession of firearms, being a circumstance crime. The paper recommends the extension of the doctrine of common purpose to joint possession of firearms. The recommendation is based on the following arguments. Firstly, the mental aspect of possession relates to the description of the article and not fault. Secondly, the doctrine is and has always been intended to criminalise joint wrongdoings. Thirdly, the extension of the doctrine of common purpose to joint possession of firearms is consistent with the presumption of possession in terms of the Firearm Controls Act. Lastly, the expansion enhances constitutional rights and fulfils the duty of the State to make South Africa less vulnerable to firearms.
- Description
- Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
- Format
- computer
- Format
- online resource
- Format
- application/pdf
- Format
- 1 online resource (vi, 73 leaves)
- Format
- Publisher
- Nelson Mandela University
- Publisher
- Faculty of Law
- Language
- English
- Rights
- Nelson Mandela University
- Rights
- All Rights Reserved
- Rights
- Open Access
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