Opinion: Why South African miners will not be convicted of

murder in Marikana dispute

Story highlightsDe Vos: Prior to murder charges, most of public had expressed sympathy for
policeFor convictions, state had to prove miners "were aware of the killing," De Vos writesDe Vos:
Commission must determine whether anyone could be held criminally liableNews that South Africa's
National Prosecuting Authority (NPA) had decided to charge 270 Marikana miners with murder after
the killing of 34 of their co-workers by the police two weeks ago, have been met with shock,
puzzlement and outrage, although a small group of commentators on Twitter and elsewhere have
also supported the NPA decision.
Politically, the decision by the NPA seemed to have backfired. Prior to the charges of murder being
brought, large segments of the public had expressed sympathy for the police and had criticized the
miners for the violent nature of their protest. However, now many South Africans are asking how the
NPA could charge 270 protesting miners with the murder of their fellow protesters when it is
common cause that the police shot and killed the miners. What possible motive could lie behind this
decision?
The NPA is relying on the doctrine of common purpose to justify its decision to charge the miners
with murder. The doctrine originated in English law and was introduced into South African law via
the ominously named "Native Territories Penal Code."
In murder cases, the common purpose doctrine is used to secure a murder conviction for all the
members of a group who had acted with a common cause by, for example, taking part in an armed
robbery -- even when only one of the members of the group had actually shot and killed the victim.
Charges against miners dropped
The Apartheid state often relied on this doctrine when prosecuting an entire group of people
involved in political protests -- especially where such a protest led to the killing of someone deemed
to be a collaborator with the Apartheid state.
In 1988, for example, 26 people were convicted of the murder of a town councilor in the North
Western town of Upington on the basis of the common purpose doctrine because the court found
that all 26 of the accused had been part of a crowd which congregated outside the councilor's house
before the killing occurred. Fourteen of the 26 were sentenced to death, a sentence which was
eventually commuted when the political situation in the country began to change.
At the time, working as a journalist, I reported extensively on this case. It was an eerie experience
when several years later, as a criminal law lecturer, I discussed the common purpose doctrine with a
class of students that included one of the men who had been sentenced to death for the Upington
killing. This experience possibly influenced my own views on the common purpose doctrine, which I
believe can easily be abused and should only be invoked in the most extreme cases.
When the scope and application of the doctrine was challenged in 2003 on the basis that it could not
be squared with the Bill of Rights, the South African Constitutional Court affirmed the continued use
of this doctrine in South African law -- in the case of Thebus and Another v S.
However, the court approved a more restrictive interpretation of the doctrine developed by lower

courts after the end of apartheid and set stringent criteria for its use.
For the 270 miners to be convicted of murder in terms of the common purpose doctrine, the state
will have to prove beyond reasonable doubt that the miners were all present at the scene of the
killing and that they were aware of the killing.
Moreover, the state would have to prove that the miners all intended to make common cause with
police who shot their 34 co-workers and that they had performed some act of association with the
conduct of the police. Finally, the state would have to prove, at the very least, that the miners had
foreseen the possibility of the killing taking place and had nevertheless recklessly associated
themselves with the killing by the police.
As the miners and the police were on opposite sides of the altercation and as the 270 miners could
therefore not have made common cause with the police, the common purpose doctrine is clearly not
applicable in this case. In my opinion, there is therefore no prospect that the 270 miners will ever be
convicted of murder on the basis of the common purpose doctrine.
It is exactly because the decision of the NPA appears to be so nonsensical and legally flawed that
questions are now being asked about the motives behind this move.
Last week, South African President Jacob Zuma appointed a judicial commission of inquiry to
investigate the Marikana killings and the events that led up to it. The Commission will have to
determine whether anyone could potentially be held criminally liable and is authorized to
recommend the prosecution of anyone deemed to have been responsible for the killings.
The decision of the NPA seems to pre-empt the findings of this Commission. It is therefore difficult
not to conclude that there is an ulterior motive behind this move by the NPA.
Whatever, the motive, it has clearly inflamed an already volatile situation. Whether it will derail
attempts currently under way to broker a peaceful end to the miners strike, is however, difficult to
predict. But it has clearly made the task of mediators in this dispute more difficult.
The South African Constitution guarantees the independence of the NPA and -- formally, at least -the government has no direct influence over its decisions to prosecute anyone. However, it is
probably too early to say whether this fact will insulate President Jacob Zuma and his government
from any possible political fallout from the decision.
http://www.cnn.com/2012/09/02/opinion/south-africa-miners-opinion/