S v Thebus and Another

During a vigilante-style protest against alleged drug dealers in Ocean View, Cape Town, a motorcade of residents confronted suspected dealers. At an intersection, one dealer opened fire and members of the group returned fire. In the crossfire, a seven-year-old child was killed and two others injured. The appellants were alleged to have been part of the group: the first appellant was said to have stood guard, and the second appellant to have collected spent cartridges and possessed a firearm. They were convicted in the High Court of murder and attempted murder on the basis of the doctrine of common purpose. The first appellant raised an alibi for the first time at trial, nearly two years after the incident. The Supreme Court of Appeal confirmed the convictions and increased the sentences. The appellants appealed to the Constitutional Court, raising constitutional challenges to the doctrine of common purpose and to adverse inferences drawn from silence regarding an alibi.

The appeal was dismissed. The convictions and sentences imposed by the Supreme Court of Appeal were confirmed.

The case is a leading Constitutional Court authority confirming the constitutionality of the doctrine of common purpose in South African criminal law. It clarified that the doctrine does not violate the presumption of innocence or other fair trial rights and need not be developed to require causal proof. The judgment also authoritatively addressed the interaction between the right to silence and adverse credibility inferences arising from late disclosure of an alibi.