The doctrine of Swart Gevaar to the doctrine of common purpose: a constitutional and principled challenge to participation in a crime

 

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dc.contributor.advisor Schwikkard, Pamela Jane en_ZA
dc.contributor.advisor Omar, Jameelah en_ZA
dc.contributor.author Davidson, Yusha en_ZA
dc.date.accessioned 2018-02-05T13:04:00Z
dc.date.available 2018-02-05T13:04:00Z
dc.date.issued 2017 en_ZA
dc.identifier.citation Davidson, Y. 2017. The doctrine of Swart Gevaar to the doctrine of common purpose: a constitutional and principled challenge to participation in a crime. University of Cape Town. en_ZA
dc.identifier.uri http://hdl.handle.net/11427/27305
dc.description.abstract Swart gevaar was a term used during apartheid to refer to the perceived security threat of the majority black African population to the white South African government and the white minority population. The Native Territories Penal Code, transported from English law, assimilated the doctrine of common purpose into South African law. During apartheid, the doctrine of common purpose served as one of many governmental tools to criminalise the black population and curtail the swart gevaar. The development of the doctrine largely occurred during the apartheid-era, whereby the white-ruled judiciary continuously sacrificed legal principles to ensure that the doctrine achieved its' crime control objective. The doctrine was expanded beyond its original scope in the Native Territories Penal Code to encompass two distinct forms of common purpose, namely: common purpose by prior agreement, whether by express or implied mandate; and common purpose in its active association form. In the 2003 case of Thebus and Another v The State, the Constitutional Court declared the doctrine of common purpose; in its active association form, constitutional. The Constitutional Court rejected the appellants' argument that the doctrine infringes an accused's constitutionally protected rights to dignity, freedom and security of persons, and a fair trial including the right to be presumed innocent. The Constitutional Court's finding came as a surprise, as it ignored worldwide condemnation of the doctrine throughout the apartheid regime and Constitutional democratic era. This paper challenges the Constitutional Court's finding and critically examines the doctrine of common purpose in the context of constitutional jurisprudence, general principles of criminal law, and policy considerations. en_ZA
dc.language.iso eng en_ZA
dc.subject.other Public Law en_ZA
dc.title The doctrine of Swart Gevaar to the doctrine of common purpose: a constitutional and principled challenge to participation in a crime en_ZA
dc.type Master Thesis
uct.type.publication Research en_ZA
uct.type.resource Thesis en_ZA
dc.publisher.institution University of Cape Town
dc.publisher.faculty Faculty of Law en_ZA
dc.publisher.department Department of Public Law en_ZA
dc.type.qualificationlevel Masters
dc.type.qualificationname LLM en_ZA
uct.type.filetype Text
uct.type.filetype Image
dc.identifier.apacitation Davidson, Y. (2017). <i>The doctrine of Swart Gevaar to the doctrine of common purpose: a constitutional and principled challenge to participation in a crime</i>. (Thesis). University of Cape Town ,Faculty of Law ,Department of Public Law. Retrieved from http://hdl.handle.net/11427/27305 en_ZA
dc.identifier.chicagocitation Davidson, Yusha. <i>"The doctrine of Swart Gevaar to the doctrine of common purpose: a constitutional and principled challenge to participation in a crime."</i> Thesis., University of Cape Town ,Faculty of Law ,Department of Public Law, 2017. http://hdl.handle.net/11427/27305 en_ZA
dc.identifier.vancouvercitation Davidson Y. The doctrine of Swart Gevaar to the doctrine of common purpose: a constitutional and principled challenge to participation in a crime. [Thesis]. University of Cape Town ,Faculty of Law ,Department of Public Law, 2017 [cited yyyy month dd]. Available from: http://hdl.handle.net/11427/27305 en_ZA
dc.identifier.ris TY - Thesis / Dissertation AU - Davidson, Yusha AB - Swart gevaar was a term used during apartheid to refer to the perceived security threat of the majority black African population to the white South African government and the white minority population. The Native Territories Penal Code, transported from English law, assimilated the doctrine of common purpose into South African law. During apartheid, the doctrine of common purpose served as one of many governmental tools to criminalise the black population and curtail the swart gevaar. The development of the doctrine largely occurred during the apartheid-era, whereby the white-ruled judiciary continuously sacrificed legal principles to ensure that the doctrine achieved its' crime control objective. The doctrine was expanded beyond its original scope in the Native Territories Penal Code to encompass two distinct forms of common purpose, namely: common purpose by prior agreement, whether by express or implied mandate; and common purpose in its active association form. In the 2003 case of Thebus and Another v The State, the Constitutional Court declared the doctrine of common purpose; in its active association form, constitutional. The Constitutional Court rejected the appellants' argument that the doctrine infringes an accused's constitutionally protected rights to dignity, freedom and security of persons, and a fair trial including the right to be presumed innocent. The Constitutional Court's finding came as a surprise, as it ignored worldwide condemnation of the doctrine throughout the apartheid regime and Constitutional democratic era. This paper challenges the Constitutional Court's finding and critically examines the doctrine of common purpose in the context of constitutional jurisprudence, general principles of criminal law, and policy considerations. DA - 2017 DB - OpenUCT DP - University of Cape Town LK - https://open.uct.ac.za PB - University of Cape Town PY - 2017 T1 - The doctrine of Swart Gevaar to the doctrine of common purpose: a constitutional and principled challenge to participation in a crime TI - The doctrine of Swart Gevaar to the doctrine of common purpose: a constitutional and principled challenge to participation in a crime UR - http://hdl.handle.net/11427/27305 ER - en_ZA


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