The NPA seems to have regained a small sprinkling of sanity – it looks like the charges of murder against 270 protesting Lonmin miners will be withdrawn. Yet a number of so-called experts and scholars are still claiming, although feebly, that the charge could have held water. Let’s not kid ourselves – the law is perfectly clear.
The decision by the National Prosecuting Authority (NPA) preliminary to withdraw charges of murder against 270 Marikana miners for the killing of 34 of their colleagues by the police was the only remotely rational course of action to take. It is probably too late to save the NPA from becoming the laughing stock of most South Africans and people across the rest of the world, but the decision seems like a glimmer of rationality in a sea of madness.
Yet it is more than surprising that the NPA is maintaining its original decision to charge the miners was legally sound. It’s like a child denying that he ate his mother’s chocolate cake when he has chocolate icing smeared all over his face. Even more surprising is that a legal academic from Wits has argued that, theoretically at least, the miners could be convicted of murder under the common purpose doctrine.
According to these defenders of the NPA, the decision was legally sound because the state would only have to prove that the miners were present at the scene of the killing and aware of an attack on the police; that the miners intended to associate with those attacking the police and had manifested their sharing of the common purpose by some act; and lastly that the miners had the intent, in the form of dolus eventualis, by showing the miners foresaw the (reasonable) possibility that someone may be killed by the actions of those in the crowd who provoked the police to shoot and kill some of them.
Could these views have been animated by a blinding animosity towards the miners; or by a fear of the protesting (black) hordes; or by an unexamined belief that the miners deserved to be punished collectively because one or more persons who took part in the strike had allegedly killed two police officers? Or have those who made this decision to prosecute or defended it – even if only on theoretical grounds – not studied the relevant legal materials properly?
The leading Criminal Law textbooks (quoted approvingly by the Constitutional Court in its judgment on the common purpose doctrine) illustrate that the doctrine is used to impute the criminal conduct of some members of a group to the whole group who had the common purpose to commit a crime. Burchell and Milton define the doctrine as follows:
Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for specific criminal conduct committed by one of their number which falls within their common design. Liability arises from their ‘common purpose’ to commit the crime.
Similarly, the other Criminal Law guru, Snyman, points out in his textbook that:
the essence of the doctrine is that if two or more people, having a common purpose to commit a crime, act together in order to achieve that purpose, the conduct of each of them in the execution of that purpose is imputed to the others.
This means that the 270 miners could only be convicted of murder if the conduct of one of its members could be shown to have caused the death of the 34 miners and if all the other requirements for common purpose had been met. Given the fact that the police actually shot the 34 miners, it is unclear how the conduct of any of the miners could have cause the death of their comrades.
For a successful prosecution, the state would have to prove that the miners made common purpose with the police with the intention to have their fellow workers killed. It is only where the miners can be shown to have had a common purpose with the police that the conduct of the police (who actually killed the miners) could be imputed to them. As none of the miners actually killed anyone on the day of the massacre, it would help little to prove they had a common purpose to protest or even to attack the police, because none of them were involved in the killing of the 34 miners.
That is why the Constitutional Court confirmed in the Thebus case that a group of people who are not co-perpetrators could only be found guilty of a crime with assistance of the common purpose doctrine if they were aware the crime was being committed and must have intended to make common cause with those who were actually perpetrating the crime. The crime in this case being the killing of 34 miners by the police, it would be impossible to prove that the miners made common purpose with the police to kill their fellow miners.
In any case, even if this was not so, and even if the state only had to prove that the miners acted with a common purpose with one another by walking in a group towards the police and that this led to the shooting that killed 34 of their comrades, the state would never have been able to prove the involvement of the 270 miners in this common purpose. As the Constitutional Court warned, it is the
duty of every trial court, when applying the doctrine of common purpose, to exercise the utmost circumspection in evaluating the evidence against each accused person. A collective approach to determining the actual conduct or active association of an individual accused has many evidentiary pitfalls. The trial court must seek to determine, in respect of each accused person, the location, timing, sequence, duration, frequency and nature of the conduct alleged to constitute sufficient participation or active association and its relationship, if any, to the criminal result and to all other pre-requisites of guilt. Whether or not active association has been appropriately established will depend upon the factual context of each case.
How would the state ever prove that the 270 actively associated with the one person in the crowd who allegedly shot at the police? Merely being proven to have been in the crowd might have been sufficient to be convicted of murder by one of the members of the crowd during the Apartheid years, but those days are long gone. The Constitutional Court decision makes this abundantly clear. More is required now, and the state would never have been able to meet this more stringent evidentiary burden.
But apart from the evidentiary problems, there is still the problem that none of the miners had actually set out to kill their comrades. Neither had any of the miners killed any of their comrades. The police did that.
To overcome this problem, those who argue that the decision to charge the miners with murder was legally plausible say that all the miners could be guilty of murder if one of them had shot at the police because the person who shot at the police could be found guilty of murder and his guilt could be ascribed to all of them via the common purpose doctrine. But this argument conflates the requirements for common purpose with the requirements for intention.
Those who defend the NPA (as well as the NPA itself) wrongly invoke the 1981 judgment of the Appellate Division in S v Nhlapo and Another, where a guard was shot and killed – possibly by a fellow guard – in a gun battle with robbers. The court stated that the robbers – who were ready to use their guns to overpower the guards – must have reasonably foreseen that someone could get killed in the robbery and therefore possessed the necessary intention for murder (in the form of dolus eventualis). The court therefore convicted the robbers of the murder of the guard – even though the state had not proven that any of them shot the guard.
The problem is that this scenario is entirely different from what the police claimed happened at Marikana. The Nhlapo case did not deal with the common purpose doctrine because all the robbers were co-perpetrators: they all had guns, were prepared to use them, and then reasonably foresaw that someone would be killed. The actions of one robber were not imputed to other robbers via the common purpose doctrine: they were all charged because they had taken part in the shootout. Their actions caused the death of the guard and they reasonably foresaw that it could.
But the actions of all 270 miners did not cause the death of the 34 victims. At most, the actions of one miner who shot at the police could arguably be said to have caused the death of others. To hold otherwise would be to criminalise the behaviour of every member of a crowd of protestors, where the behaviour of one of the protestors might have contributed to the death of someone and where that protestor had reasonably foreseen the possibility that his actions would lead to the death. It would, in effect, abolish most of the requirements for criminal liability for anyone taking part in a protest march and would be so invasive not only of the right to protest freely but also of the right to be presumed innocent until proven guilty, that it would undermine the very essence of our Bill of Rights.
Unlike those robbers, all of the 270 miners were not armed with guns. They had not all taken part in a shooting match with the police. They were not co-perpetrators going out to overpower the police. Arguably, one of those in their midst had a gun and shot at the police. They could therefore not have been guilty of murder because they had no intention to kill their comrades. To hold otherwise would be to use the common purpose doctrine in a situation for which it has not been designed and for which has not (and never will be) approved by our courts.
In any case, even if this was not so, no court in South Africa is ever going to find that the miners should reasonably have foreseen the possibility that the police would start shooting at them with live ammunition and would kill 34 of their comrades because one among them had a firearm.
We live in a democracy. We have a right to expect the police to obey the law and use minimum force, as they are required to do by the Police Act. We cannot and should not ever accept that it is reasonable to foresee that the police would use maximum force and would shoot and kill 34 protestors because one of them happened to have been armed with a gun. For a court to hold otherwise would be for it to hold that it is reasonable for the police at best to be untrained, bumbling, and bizarrely incompetent or, at worst, to be malicious, vengeful, law-breaking thugs.
It is a pity that some in the NPA seem to have forgotten (or might never have noticed) that we indeed live in a democracy now, and that we can reasonably expect the police to obey the law.
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Simelane and Cele must be smiling and watching this unfolding. Change does not guaratee improvement and as for the DA and others be careful of what u can wish for.
SA has a newm magic word MANGAUNG with that word anything is possible and govt acts
Could someone please shove I’kla up Pierre’s rectum?
P.s. Does anyone know what the definition of ‘murder’ is?
Eish!
The games people play.
Lots of people dead.
Acting NDPP is clueless.
Zuma promises to ask for R12 500 for miners from Lonmin (not Aurora).
Selebi is terminally ill.
Angie Motshekga sends her kids to private schools.
Thandi Modise buys house from state at less than half the market price.
Still no school books in sight for many learners.
R700 million “feeding scheme” for ANC cronies in Limpopo.
Christo Wiese and R2bn.
Ramaphosa offers less to the families of the dead than he was prepared to pay for a bull.
Sexwale has “BLIND TRUST” which is associated with some shady deals.
Meanwhile back at the ranch, still no word from god via our CJ Moegeng-squared.
And the bad news is – lots of people are still dead!
p.s. Brett Nortje (September 3, 2012 at 8:35 am).
G – murder is what WHITE people do to Black people. WDYSTT?
17. Assembly, demonstration, picket and petition
Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.
Ergo, the Lonmin strikers were engaged in constitutionally protected conduct.
See, Maggs, according to Pierre, there was only one gun in the crowd. Everyone else was unarmed. (Assegais don’t count because historically they were used on white people who deserved it.)
Pity the same rationale did not protect the Inkatha members massacred at Shell House.
“Those who defend the NPA (as well as the NPA itself) wrongly invoke the 1981 judgment of the Appellate Division in S v Nhlapo and Another, where a guard was shot and killed – possibly by a fellow guard – in a gun battle with robbers. The court stated that the robbers – who were ready to use their guns to overpower the guards – must have reasonably foreseen that someone could get killed in the robbery and therefore possessed the necessary intention for murder (in the form of dolus eventualis). The court therefore convicted the robbers of the murder of the guard – even though the state had not proven that any of them shot the guard.
The problem is that this scenario is entirely different from what the police claimed happened at Marikana. The Nhlapo case did not deal with the common purpose doctrine because all the robbers were co-perpetrators: they all had guns, were prepared to use them, and then reasonably foresaw that someone would be killed. The actions of one robber were not imputed to other robbers via the common purpose doctrine: they were all charged because they had taken part in the shootout. Their actions caused the death of the guard and they reasonably foresaw that it could.”
Prof de Vos: Let me firstly deny that I have been defending the NPA’s initial decision (which may be reinstated depending on what the Judicial Commission of Inquiry holds) to charge the miners with murder (in respect of the demise of their comrades). I think I have been defending the state of the ‘criminal law’on this point, and I still maintain my view – I will return to this below.
Secondly, I do not think that your quotes from the works of the so-called criminal law ‘gurus’, Burchell and Milton and Snyman (although I do not agree that their say-so is authoritative in every respect of the criminal law – a few researchers have already proven the contrary) disproves my viewpoint advocated under the previous post. Fact is, that under the doctrine of common purpose, the actions of one or more in a group are ‘ímputed’to the others for their common purpose to achieve an illegal end and, therefore, when common purpose is invoked, one does not look at the question of causation (which is required in the case of murder) in the strict sense when an individual is charged with murder – as long as one or more caused (or contributed to cause) the death of another person, those who participated in the initial crime are ‘punished’ through imputation as it were. That is what Burchell et al and Snyman (as well as the Constitutional Court say.
Furthermore, your averment that my (and others’) viewpoints that the Nhlapo decision might render them guilty ofc murder (if the facts alleged by the police and the NPA are proven to be correct) amount to a wrong interpretation of Nhlapo is incorrect. Whislt it may be so, while all the robbers in Nhlapo might have been armed, there is a long line of High Court and SCA decisions that hold that even robbers who were not armed during an armed robbery can be held guilty of murder if someone is killed when resistance is offered (never mind who is killed – the victim of the robbery, one or more of the robbers or an innocent bystander caught in the cross-fire). The Nhlapo decision is just confirmation of the same viewpoint, never mind who was armed and, more importantly, never mind who caused the death of the deceased during the shootout, as long as the robbers had common cause to commit the robbery and were ad idem (as a result of their common purpose – even on grounds of dolus eventualis) to meet any resistance with fatal violence, they can all be held guilty of murder for any fatality that eventuates as a result of their group action.
In this regard, one should remember that public violence involves any kind of serious violence (including murder or attempted murder) or threats of violence committed by a group acting in concert. Now, if it is true (and that will have to be determined by a court of law – not academics or politicians) thatt the police acted lawfully in ordering the strikers to disarm and disperse, and they were then stormed by a large part of that group, all armed to the teeth, some of them even with fire-arms (never mind where they got them from), which they clearly used when regards is had to the footage showed on Al Jazeera, and they kept on storming after tear gas and rubber bullets did not have the effect of stopping them – then clearly, all of them had the common intent to commit public violence (which might include murder or attempted murder) and to defy any lawful (or illegal) resistance by the police (or whomever), and all of them clearly (subjectively) foresaw that someone (even some of their own number) might be killed. Unless it can be held that the police acted unlawfully (either that they did not have the right to act in private defence or that they exceeded the boundaries thereof), then obviously, those who acted unlawfully by committing public violence, can be held guilty for the murder of anyone who died as a result of this confrontation. To hide behind the ellement of causation will not assist any of the accused persons, because the causation of death is ‘ímputed’ tom all the participants in the illegal action. Had the group disarmed themselves and had they dispersed as ordered by the poilice, no one would have been killed – the refusal of the group to do so, and their storming of the police can therefore be seen as the conditio sine qua non for the causation of the demise of 34 miners.
Lastly, however, I will not (for want of clear evidence) say whose version to believe of what happened, that of the police or that of that Pullitzer prize winner (one M) who says (for his investigations ex pos facto), the actions of the police did not amount to policing, but to execution. That is for the Commission and/or a court of law to decide. However, on the video footage and photographs (both land bassed and arial) of the incident that I saw, my opinion is tipped slightly in favour of the police’s version.
In the end, it will be a question of what facts can be proven. If the NPA can prove the facts alleged, then the law will convict of murder. If the NPA cannot prove those facts, then those charged will be acquitted by the same law.
Why buy these and rubber bullets because they dont work on miners? May be the inyanga was effective.
http://www.news24.com/SouthAfrica/News/Police-bought-pepper-spray-before-tragedy-20120903
@ Mouse
Did you have tea recently with Adv J Smit?
Anonymouse
September 3, 2012 at 10:40 am
Haibo Doc Mouse,
“If the NPA can prove the facts alleged …”
Hmmmm – one South African with some faith in the NPA.
The same NPA which could not find any evidence to charge Zuma on one of 783 allegations.
The same NPA whose head plagiarised some judgement and twisted it to get appointed as a judge.
The same NPA whose head was “fired” by a court.
The same NPA which “lost” some important tapes.
The same NPA which demoted the prosecutor going after the amigos.
The same NPA whose provincial head was not aware that Zuma set up a commission of enquiry.
The same NPA …
@ Mouse
” they kept on storming after tear gas and rubber bullets did not have the effect of stopping them”
I believe these do not work effectively beyond a certain distance especially with a helicopter trying to disperse the crowd.
The bottom line, my dear Maggs, is that the do-little-but-loot ANC knew the common-purpose doctrine was controversial and could have developed the law via legislation long ago.
Ben Turok and his committe solved this matter.
http://www.iol.co.za/news/politics/anc-mp-may-face-prosecution-over-kickbacks-1.1374620
Marikana, SARS, and others
http://www.citypress.co.za/Business/News/Mrs-Zuma-drops-shady-business-partner-20120901
Gwebecimele
September 3, 2012 at 10:48 am
Tea? I never touch the stuff because I am driving too regularly – I don’t know J Smit, but I read that he has been classified as an SC. Perhaps because he has a thorough grasp of the (criminal) law?
Maggs Naidu – (maggsnaidu@hotmail.com)
September 3, 2012 at 10:50 am
Perhaps you’ve misread the ‘ÍF’ – thing is, whenever the criminals (or the crimes) have political undertones, I do not thin k that the NPA is as independent as it should be. It is however strange that Jacob Zuma, when petitioned to release the prisoners by today or face court action, publicly stated that he will never dream of interfering with the course of the law, or the NPA’s decision, but Jeff Radebe (LLM Leipzig), on the other hand, practically ordered the NPA to reconsider its decision.
Gwebecimele
September 3, 2012 at 10:45 am
Why buy these and rubber bullets because they dont work on miners? May be the inyanga was effective.”"
Yes, rumour has it that the muti that the inyanga prepared had to contain human tissue, perhaps even those of dead policemen, so that the muti could be strong enough for the group to overpower the police.
Gwebecimele
September 3, 2012 at 10:55 am
“I believe these [rubber bullets] do not work effectively beyond a certain distance especially with a helicopter trying to disperse the crowd.”
On the other hand, however, at much closer quarters, rubber bullets appear to be very deadly – viz the case Andries Tatane – and calls have gone out for a total ban on the use of them. … What are police to do in this all too violent society we live in? Ask those who commit violent crimes very nicely to stop doing crime but to participate in building a better future? Oh, such naivety!
I still belief the police were at fault, but after reading Mouses’ comments in the previous post I could begin to understand why the NPA may have believed they had reasonable grounds for conviction. (i) The strike was illegal. The state has a duty to protect the interest of other parties (i.e. businesses and other workers) especially in an illegal strike & gathering, and to make all efforts to dissolve such a strike & gathering. (ii) The striking miners were armed – maybe with only one gun, but they were armed. They were threatening the police with an attack/assault. The police have a duty to protect themselves and the rest of society.
Specific questions a court case would have been able to clear up include: Did the police use all available methods/options to not only dissolve the strike, but to manage/control the crowd before using live bullets (very lethal force) as a last option? This would have seriously scrutinised the Police policies and actions regarding crowd/riot control. Did (all?) the miners know that the police will open fire on them with live ammunition? I.e. did the Police inform the strike leaders and did they in turn inform the rest of the miners? Without proof of this, I can’t see how the NPA could argue that the miners should have known that the Police will likely use lethal force and fire with live bullets? In a similar situation, a reasonable person may have assumed, at worst, the police will fire with rubber bullets and teargas, and in his wildest dream, not have considered that the Police will fire with live ammunition. At worst, a reasonable striker would have considered the possibility that advancing on the Police will result in some injuries (They all probably accepted that possibility) and the NPA could, under common purpose, charge them all with grevious bodily harm.
Here is my likely scenario: In order to effect (i) above, the Police informed the strikers to disband or the Police will move in and do it because their other efforts in the preceding week were unsuccessful. The miners did not want to disband and prepared themselves to face the Police: they armed themselves & asked a sangoma to protect them from the Police. The Police was preparing a coordinated assault from the back and front to break the illegal strike & illegal gathering. (This could partially explain the comment of the police commander the day before.) The Police knew the miners were armed, and were themselves armed – just in-case.
What may have caught the Police off-guard is the fact that the strikers advanced on them (probably more of a war dance than a full frontal attack) before they were ready to move in/ before the command to proceed came down. Some members of the Police panicked and started firing, but since but most had live ammunition, the result was deadly. Panicked miners started fleeing away from the gunfire, probably carrying their “weapons” with them. The fleeing miners, running with their weapons, came running “smack bang” into the tactical response unit that were themselves preparing to enter the “compound” from the rear, where they were using the rocks & boulders for some concealment and protection. Hearing gunfire from the other side of the hill, and then seeing armed strikers running towards them, they likely thought they were under attack. Given their training & the terrain, they were much deadlier, as evidenced by the many more dead bodies in the rocks behind the hill.
How to debunk destructive myths:
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=323686&sn=Detail&pid=71616
Dr Mouse, a prima facie case sufficiently strong to bring charges?
@ Pierre
“Could these views [re applying the common purpose doctrine] have been animated by a blinding animosity towards the miners; or by a fear of the protesting (black) hordes”
The answer must be a resounding “YES.”
And “YES” also to the proposition that attributing the direst of motives to one’s adversary is often a very effective way of winning an argument.
Thanks.
Oupoot
September 3, 2012 at 11:12 am
This is one of the more level-headed responses to the whole issue that I have read. Thanks. I agree, the NPA’s allegations will be difficult (however not necessarily impossible) to prove, and the prosecution will not necessarily be successful. But, the law states that a person can (in the circumstances alleged) be convicted of murder. This is where I differ from Prof De Vos. In the end, however, it will call for a sound, objective examination of all available evidence to establish the true facts, and the decision of the NPA to drop the murder charges pending the outcome of a Judicial Commission of Enquiry appears to be the wisest for the moment – everyone now has to divorce their minds from political and emotional views on the issue, and to try and assert (objectively) the true facts. Then we can debate on what the law should (or should not) hold.
This is a classic case of inequality before the law. Members of the SAPS involved in the massacre have gone scot-free. The other miners who were present during the massacre are also off the hook; meeting with the president and the ministerial committee, being begged by Lonmin to return to work and negotiating wage increase. Those in hospital have not been arrested either, others have been discharged without any consequences. On the other hand, those arrested have been tortured, denied medical care, access to families, cooped-up in police vans for hours without food or water; denied the right to be present during their bail hearing and have lost their jobs!
Brett Nortje
September 3, 2012 at 11:19 am
“Dr Mouse, a prima facie case sufficiently strong to bring charges?”
That, Brett, I really cannot say.
That is pretty much the crux.
Dr Mouse, what would you have liked to have seen done? The ‘professional NPA’ thing to do? Best practise? Just opening dockets?
Public violence or sedition charges, to be upgraded later?
http://www.timeslive.co.za/opinion/columnists/2012/09/03/anc-all-hot-air-and-bluster
Anonymouse
September 3, 2012 at 11:10 am
Hey Doc Mouse,
“It is however strange that Jacob Zuma, when petitioned to release the prisoners by today or face court action, publicly stated that he will never dream of interfering with the course of the law, or the NPA’s decision, but Jeff Radebe (LLM Leipzig), on the other hand, practically ordered the NPA to reconsider its decision.”
FYI Zuma would never, ever interfere with the course of the law – unless he himself is facing it, in which case he manages a reverse David Copperfield by making tapes mysteriously appear. And at the end of that mysteriously makes those tapes disappear. Or by appointing the “right guy” in his home province to make charges against his core supporters vanish just like dry-ice does. Mduli got tangled, though, just after the magic faded.
p.s. You make it seem like I deliberately misread the “if”. Would I do such a thing? Never. Ever. Not even to annoy Dworky. Ok I confess – maybe I wanted to rub you up the wrong way just a teeny-weeny bit.
@ Mouse
What are the chances that Smit SC can use the same law on the police and charge all of them with murder? Although theirs was not an illegal gathering but they were all armed and fully participated in killing the miners.
Is it possible for cops to hide behind the instruction of their superior or can they be individually and jointly held liable ?
Hmmmmm!
It’s reported that Mdluli charges also withdrawn.
Mdluli charge withdrawal: the first glimmer of insanity???
Dear Prof de Vos,
I agree fully with the learned mouse’s interpretation of the law. Incidentally, Nhlapo’s case is not very good authority for the NPA’s position. In Nhlapo’s case, the AD focused on intention and did not deal explicitly with the question of causation. Better authority may however be found in S v Lungile 1999 (2) SACR 597 (SCA), which deals fully with the law’s approach to causation in a case like the present, where the the accused, through their unlawful conduct (and with the necessary foresight of this possibility), caused a shooting affray, which in turn caused the death of a person (or persons) other than their originally intended victim(s).
Oops – I must have “misheard”!
So prof chameleon. No problem with indepedance and political interference with the NPA now. Or the turnabout because of “public outcry”. I mean-wtf?
“It is probably too late to save the NPA from becoming the laughing stock of most South Africans and people across the rest of the world,……..”
But why this mundane decision by the NPA?
I surmise the answer is cadre deployment – their government [and police] is in trouble and now the cadres at the NPA must do their best to save face. So they dream up these charges to screw the miners even more while the mournings were going on…….
Just think what the end result could have been if the ANC had accomplished its dream of fully stocking the judiciary with loyal cadres – then the conviction of common purpose murder would have been dutifully upheld by the cadres at all levels of the judiciary.
The result is repression. This madness only came to a halt when civil society called the cadres to account.
Gwebecimele
September 3, 2012 at 12:16 pm
Of course Smit would be able to youse the same legal tenets to charge the police, IF there is evidence that incrimnate them – not just emotionally loaded rants of some of the miners and of JuJu and journalists who were not even there. For example, if the available evidence suggests that they exceeded the boundaries of private defence or, for that matter, section 49 of the CPA, they may well be charged with murder – and the doctrine of common purpose can be used against them as well.
Shelley Walker
September 3, 2012 at 12:44 pm
Thanks for the Lungile reference in my defence – I did not have much time posting earlier and I thought I’d get the correct case reference after I adjourned court for lunch – but thanks, you saved me much time.
http://dailymaverick.co.za/article/2012-09-03-marikana-civil-society-demands-justice-and-truth
http://mg.co.za/article/2012-09-02-hawks-ready-to-charge-malema
Meanwhile back in the land of the free (Australia) todays local news headlines were that a bunch of bored teenagers had overturned garbage cans during the night. First incident of crime here this year !
The reason life here is so peaceful ?
Obvious ain’t it.
For those who do not have access to a hard copy of the SACR, here is the electronic link to the Lungile decision http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZASCA/1999/96.html&query= Lungile
The NPA’s decision would have had absurd consequences: imagine two brothers, both miners, were demonstrating that day. The police open fire. The two brothers turn and run, and are both shot in the back. One dies and the other survives. The surviving brother would be charged for “causing” his brother’s death, and “intending” this when he joined the demonstration.
Are these security guards more trained than cops?
http://www.iol.co.za/news/crime-courts/5-shot-during-mine-wage-rage-1.1374824
Dr Mouse, Prof and all the attorneys commenting on this site, I have a question.
It seems as if there are two distinct views on the theory of common purpose and how it should be interpreted by lawyers and so on.
Prof de Vos seems to think that the latest word from the CC gives guidance on how it should be interpreted and the questions that a lower court must answer when considering a matter.
Dr Mouse et al seems to believe that one should rely on the SCA judgements in this regard from a Criminal Law perspective.
My question is this: Does not the CC judgment prevail w.r.t how the common purpose theory should be interpreted? I suspect it would be difficult to pass the test set by the CC in respect of every person in that crowd?
Louis P
September 3, 2012 at 14:03 pm
Your example is misguided and do not necessarily reflect the current facts (or, at least the allegations by the police).
Andrew
September 3, 2012 at 14:11 pm
The CC has not yet overturned the SCA judgment, and it seems improbable that it would in the light of what the Justices said in Thebus. The doctrine of common purpose was not abolished by the CC – neither did it interpret common purpose in another way than what the SCA did in any of its decisions, especially Mgedezi and Others – but, it did caution that the facts should be properly scrutinized to ensure that the doctrine is correctly invoked in every case. (The CC did not set the test – it merely reiterated the law as it already stood in the SCA decisions.) In any event, until such time as the CC pertinently overturns the Lungile and Nhlapo decisions, they remain law and in terms of stare decisis, they must be followed unless a subsequent higher court than the SCA (or the SCA itself) revisit their earlier decisions and decide to depart from them.
The problem I have with the theoretical speculations here is that it equates the position of 270 miners with those of two or three robbers who execute an armed robbery. But the two situations are both in practice and in theory entirely different and equating them is to equate apples with horse dung. The minders did not go out to rob a bank. There is absolutely no evidence in the public realm that the miners systematically planned and executed an attack on the unsuspecting police. In fact there is ample evidence that trouble started when the POLICE began to take steps to break up the miners gathering (and perhaps the strike). The case of the robbers in various judgments are entirely different. In those cases there were only a few of them, they planned a criminal act, knowing that it might lead to deaths and then proceeded with the armed robbery. But would the robbers have been convicted of murder if, while they were sitting around drinking a beer and talking about how they wanted to rob a bank, they were surrounded by police and bombarded with tear gas and as they were fleeing all but one of them were killed by the police who opened fire ojn tghem with automatic rifles? No. Never. The discussion is spurious. No copurt is ever under any circumstances going to find the 270 miners guilty of murder. Mouse, I will take you a bet on that.
I’m not going to comment on THIS topic. PdV seems to have said every thing.
Instead I’ll pass on this observation: The Zimbo MDC MP & economist wrote
in http://www.politicsweb.co.za/ how destruction of the previous vast livestock
fencing, affects argricultural production. And here’s a reply:—
democratic agriculture
The mindest of people like Eddie Cross and John Austin is governed
by their inbuilt, almost, genetic, ignorance and rejection of
African social structure.
These present day examples of the mindset of colonialism,
slave-owning, neo-liberal adherers to an apartheid vision
like to think that their ideas are “good for the ignorant black”.
It is a well-known and irrefutable scientific fact that more than
seven million black men have had holes torn in their clothing
because of being forced to crawl on their bellies under the white
man’s barbed wire fences.
Africa has had enough of this demeaning and inhuman treatment of its
manliness.
Enough of fences, enough!
If you want to erect fences again then you should simply get enough
votes to allow you to reintroduce your stupid property laws.
Until then this is African democracy in action gentlemen. Suck on
it.===================
And here’s a confirmation. In the 80′s I used to go to Malawi to escape the
highveld winters; where I met a US “doctor” who also came to Malawi: to
study the indigenouse-medicine-industry [he said]. Some years previously
he’d sponsered a bright young Malawian for some US eductation. When the
Malawian came back from US, he was able to buy himself a bar/tavern.
One Friday, a bar-drinker left his legs-tied-together-chicken on the
bar-floor, when he left. When the bar-owner closed, he took the live-chicken
home with him. Perhaps when the chicken owner’s in laws arrived the next
day, the absence of the chicken, prompted the hysteria. So that when he
rushed back to the bar to fetch the chicken and was told by the US-educated
owner that he’d taken the chicken home, the original owner laid a criminal
charge. And the bar owner was imprisoned for 6 months. The common opinion was
that he had become a smart-ass in US, and didn’t respect ‘African traditions’.
In african village life, the foot-paths cross every one’s land. Obviously,
with mud and sticks housing, nothing can be locked. So they’ve evolved a
system of respect of property rights. Every body knows exactly which hat
or chicken belongs to whom. And that was during Banda’s days.
Besides, tearing you shirt is something you can see and understand
IMMEDIATELY. Land productivety management via fencing is another one of the
absurd muzungu theories, that even they admit takes a [fast turn over bantu]
generation to pay off. BTW, I think the chicken was still uneaten after he got
out of jail. Perhaps the original owner didn’t reclaim it.
Andrew
September 3, 2012 at 14:11 pm
Actually, there are not really two different views on what constitutes common purpose. The CC in S v Thebus did not say anything to contradict the leading judgments on the subject by the AD and the SCA. All that the CC says, in the passage quoted by Prof De Vos and elsewhere in the judgment, is that the courts must be careful to ensure that the essential elements of common purpose liability are properly proved by the state, and not merely jump to conclusions. Our law reports abound with similar cautions from the AD and SCA. Importantly, though, the CC found that the common purpose doctrine was constitutional, despite the fact that it dispensed with the need to prove causation in cases of murder. In fact, the CC held that “[t]here are no pre-ordained characteristics of criminal conduct, outcome or condition. Conduct constitutes a crime because the law decalres it so.”
Prof De Vos,
No-one is suggesting that there was a systematic planning of the attack by the miners, but that is not a prerequisite for liability. Are you seriously siggesting that, with all those spears and assegais so clearly visible, it did not even enter their heads that at some point some people might decide to use them?
So let me try and understand this. One can only commit a murder with a gun?
I asumme then the two cops/other NUM members who were hacked, mutilated, beaten to death and set on fire with machete/assegaai/knopkieries/pangas/boxes of matches died of natural causes?
It was a militant, illigal strike accompanied for months with grotesque violence and intimidation.
Anybody who wants to make believe that there was no atmosphere or propensity in the crowd to commit acts of ultra-violence if not murder must really live somewhere in coocoo land.
Anyhow – what does the “constitutional expert” have to say about interference with the independance of the NPA and the apparent pandering to public opinion?
Hmmm – it must be contagious!!!!
Johannesburg – Four miners were shot and wounded early on Monday by security guards at Gold One’s flagship Modder East mine near Springs, police said.
Spokesperson Captain Pinky Tsinyane said they were taken to hospital. One of them was in a critical condition.
Four people were arrested in connection with public violence, she said.
Further details were not immediately available.
http://www.news24.com/SouthAfrica/News/Miners-shot-on-East-Rand-20120903?utm_source=twitterfeed&utm_medium=twitter
Pierre, I wonder why you find it so impossible to see the miners’ actions as most of the rest of us do. First of all, what they were doing on that hills was illegal. And not allegedly illegal still to be proven in court, they were partaking in an illegal strike. In order for a strike to be legal one has to adhere to certain LRA requirements, which this strike did not. Secondly, how long had they been gathering on that hill? A week, 5 days? They did not just go up there one morning and that same afternoon the police diceded they had had enough. This was a drawn out affair which the Police tried to resolve with no success. Thirdly they were armed, can we safely say at least 95% of them were armed. Why does one arm oneself? Either for self defense or for attack. If it is self defence there must be a reason for one’s belief that one might be attacked. Is it maybe because one plans to provoke a tense and stressed-out opponant. Fourthly, it is now being alleged that the strickers seeked the help of a traditional healer to make them strong and invinsible. Pierre, with all due respect, the miners showed clear intend of getting involved in a battle with the police, you can not want to dispute that. And then sadly there was people killed. What other logical outcome could there have been then the mess we have now.
I don’t know enough to have an opinion on whether they can be charged with murder so on that score I will not give my opinion.
Deloris Dolittle
September 3, 2012 at 15:30 pm
Hey DD,
A sound analysis indeed.
Brett is armed (18 or so guns + a knobkerrie) – let’s shoot him.
So let’s see.
Those miners we sitting on a rock (ok between a rock and a hard place).
One group of police disperse them.
The other group of police dispenses of them.
So the B-team executes plan A.
The A-team executes plan, er, there’s no plan – just executes!
Those who survive live to die another day!
Not quite right Maggs, they were not sitting on a rock (and not between a rock and a hard place either). IF only they were sitting quietly and without so many dangerous weapons, maybe none of this would have happend. But then quitely is not really their style, is it.
Deloris Dolittle
September 3, 2012 at 15:55 pm
Hey DD,
They were very rowdy indeed – noise level the same as spectators at a rugby match.
And lots of those okes are armed too.
Deloris, I find the action of the police to be deeply disturbing. They are suppose to use minimum force to protect us citizens from any harm.
Even if those miners were sitting on those rocks for a year, the police would have no right to disperse of them without good reason.
You know how effective teargass is? Very. The teargass that the police have also burn your skin. Only the very brave would continue to charge the police after a good gassing. A few strategicaly placed and used watercannon would also do the trick.
The point is that the police could have prevented this.
BTW DD,
The miners at Grootvlei are sitting quietly.
Eight years later ….
They are still sitting!
There should also be no doubt that the cops went there with a fixed purpose knowing what was coming and ready to deal with it in kind. But to claim that these strikers where innocent victims not armed to the teeth, even with murderous intent and ready to do battle is deluded to the xtreme.
Daar is nie ”n vark’ in die verhaal nie – almal is ‘varke’.
@ Andrew, I agree with you teh actions of the police were disturbing. But so was teh actions of the miners. Remember 10 people died at the hands of these men. So just maybe they are not as blameless as some people want them to be.
@Maggs, I know about Grootvlei and it boggles my mind that that situation has not been sorted out. It is a tragedy. A whole group of people’s lives are in ruin because of Aurora Empowerment Systems and there is not enough outrage about that amongst the rest of us.
A lot of people seem to miss this . Surely the strike was illegal only in terms of civil labour laws? It was not a criminal act. Therefore what right do the police have to end an illegal strike? I mean if a group of candidate attorneys feel they are underpaid and go and sit on the lawns outside the magistrates court , on what basis must the police be called to end the strike? They are not committing any crime! Surely only when a criminal act occurs must the police act. The fact that the miners carried weapons was also not unlawful per se,(obviously any unlicenced firearms would be) Only when threats are made or assault committed would a crime have been committed and the police allowed to become involved?
@ Jeffman
Some want believe this was a battle between two well armed forces. The other group had two pistols and several knobkerries, spears etc.
Our police are becoming service delivery and labour relations experts
The lack of interest on the developments around the first 10 deaths is puzzling. How far is the investigation and who has been charged?
RUBBER BULLETS AND TEARGAS WORK SOMETIMES
“The South African Police Service addressed the group extensively, informing them that the gathering was illegal and requesting them to disperse. The group, however, refused to disperse.
At approximately 11:30 the SAPS had to use teargas and rubber bullets to disperse the group. Access to the Modder East Operations has since been re-established,” it states
http://www.moneyweb.co.za/mw/content/en/moneyweb-mining?oid=609272&sn=2009+Detail
Right decision made for wrong reasons?
Buthelizi’s article in politicsweb.co.za is correct that
}} I still believe in removing administrative discretion as far as
possible.{{ Which is the first obvious step.
Even before the ANC-looters got control of the till, SA was run like a rural
village, where reliance on ‘good people’ [inspired by the doominee] was needed;
and no SYSTEM was in place, which could work, independant of the personalities.
Consider the drastic fix of the mag-legislation, initiated by the CC-Jaftha
[Albertsville] case, which had NOTHING to do with the constituional view.
But was merely a fix of incompetent skaapie legislation which had existed
for decades.
Gwebecimele September 3, 2012 at 16:46 pm
However – South Africa is a democratic country now and people can vote for a different party if they want to. As far as I know, ANC,NUM and COSATU are all democratic organizations. What you don’t have to do in a DEMOCRACY is run around with pangas and spears killing and butchering like a bunch of fucking savages. If you prefer,as Mr. Malema and his oneman show seems bent on doing, to do things that way be prepared to pay the price and suffer the full consequences of the law.
Deloris Dolittle
September 3, 2012 at 16:31 pm
Hey DD,
It boggles my mind that “it boggles [your] mind that situation has not been sorted out”.
The Grootvlei okes took your sound advice – “they were sitting quietly and without so many dangerous weapons”.
The are still sitting quietly without dangerous weapons 13 years later.
No dangerous weapons at all – not even Julius Malema!
Brett, I demand that GENOCIDE WATCH, and Dr Stanton, investigate the mass killings of mine workers. To my mind, Markina warrants moving the GENOCIDE barometer to level 2 (viz, 1 short step before Dachau!)
Thanks.
Andrew
September 3, 2012 at 16:01 pm
Hey Andrew
“Only the very brave would continue to charge the police after a good gassing.”
In that case we should deploy our secret weapon – OzoneBoy!
It pretty much a joke how the socalled Democratic Left, the “contitutional expert” who authors this blog and many of his arse-licking lackeys who post their usual shite here see no problem with a heavily armed mob butchering policemen who are trying to defend uphold law and order in a constitutional demcracy.These are the good guys, the bad guys are the police. Nothing would give me more pleasure than see Inkhata or the Amapondo crossing paths with you one day. May God be with you when they rip your heart out and eat your liver.
You should be fucking ashamed of yourself.
ozoneblue
September 3, 2012 at 21:56 pm
Hey OB
“May God be with you when they rip your heart out and eat your liver.”
I heard that “Inkhata or the Amapondo” do that – they rip out hearts and eat livers.
Is it true?
What do they do with the hearts – sell it to Netcare?
Do they eat livers raw, cooked, slated, dried?
Vicious, murderous, cannibalistic Black guys those, neh!!!!
So apparently, besides for totally forgetting about 1922 you have also forgotten what happened 1991-1994?
Does this not feel like dejavu. Is brain damage and catastrophic memory loss a prerequisite for posting on this blog?
But wait until those Inkhata impi comes for the “bargaining Indians”. Then you will see this cunt run.
ozoneblue
September 4, 2012 at 7:55 am
Hey OB,
“But wait until those Inkhata impi comes for the “bargaining Indians”. Then you will see this cunt run.”
I’m terrified of “those Inkhata impi” as you describe them.
Are they going to come all the way to India where I am with 1.29 billion other coolies (after taking your advice of course), to rip out my heart and eat my liver?
Should I find a large group to hide among?
@ OzoneBoy
“wait until those Inkhata impi comes for the “bargaining Indians”.
OB, perhaps you are unaware that Inkhata is a “cultural movement”, dedicated to reviving the tradition of our Zulu People. It has only cultural and intellectual impis.
Thanks.
@ MDF “Markina warrants moving the GENOCIDE barometer to level 2 (viz, 1 short
step before Dachau!)”. Which explains partly, why some mock the holohoax:
like with the Sharpeville hoax; we don’t like to find out that we’ve been.
fooled by the media-manipulators. Like I grew up in ignorance of Stalin & Mao’s
attrocities [PolPot came later] and was fooled into believing that Hitler was a
unique devil. Sharpville is a similar false myth; relative to SA’s murder rate
=========> Change topic:———
PdV’s legal arguments are refreshingly free from the too common SA baas-skap
mentality reliance on authority [actually, the bantu are even more induna
centric]. Eg. many, even senior SA legal people use “no judge would ever accept
that …” or “there is ample precedent that..”. In contrast Pdv [and Margaret
Thatcher] say “you bought 3 ding-dongs for $2 each, therefore the corect change
from $10 *IS* $4″. Admittedly law is not a hard science, but there are ample.
‘principles’ established over millenia. So that arguments can be built from
first-principles, without continually refering to precedent.
Citing precedent with no original inference means “that’s how it is, but I
don’t understand why”, which is what I call the clerk-mentality. Which is OK
for clerks.
Rambling fool! Pontificating about “fooled by the media-manipulators”?
Did you see De Vos on Etv?
After the role they played in this massacre?
Mikhail Dworkin Fassbinder says:
September 3, 2012 at 20:47 pm
Can you read? Genocide Watch has moved South Africa back to Stage 6.
Ordinarily, I would ignore you, but some feeble-minded person might take you seriously….
“Clearly a person ought not to be prosecuted in the absence of a minimum of evidence upon which he might be convicted…That is recognised by the common-law principle that there should be ‘reasonable and probable’ cause to believe that the accused is guilty of an offence before a prosecution is initiated (Beckenstrater v Rottcher and Theunissen1955 (1) SA 129 (A) at 135C – E), and the constitutional protection afforded to dignity and personal freedom (s 10 and s 12) seems to reinforce it.” S v Lubaxa (per Nugent JA)
Brett Nortje
September 4, 2012 at 9:24 am
Hey G,
“Rambling fool!”; “feeble-minded person”
OzoneBoy has really got you riled up, neh!
http://www.news24.com/SouthAfrica/News/Tutu-shocks-audience-with-outburst-20120904
They are not only fully armed but they also RICH.
http://www.moneyweb.co.za/mw/content/en/moneyweb-soapbox?oid=609436&sn=2009+Detail
@ozoneblue
I think it’s fine to refer to people like yourself and also those in the government as cunts.
But to refer to Maggs as a cunt because he is intellectually superior to you is going a bit far.
Thanks
Who does the hill(Koppie) belong to? Even if striking miners dispesed from the hill, they would have still prevented the non striking miners from going to work at the informal setlement. Absurd police logic? So the striking miners were armed with all sorts of pangas, assegais, sticksand and therefore had an intention to kill the police in order to get their salary increased.Absurd NPA logic?
Why did the police not shoot and kill the Cosatu members who attacked the DA marchers, clearly they were carrying bricks, sticks and all sorts of hand propelled missiles.
So common purpose: Strike…negotiate..get increase..get back to work..enjoy life with family.
An interesting business. I’m with PdeV and Oupoot, maybe Andrew and not in favour of the “shoot the buggers, they deserve it” stance taken by OB and, according to PdeV, most white South Africans. He never says how he knows this.
But to the killing. Looking a bit wider, it seems that the police’s only stance was aggressive and arrogant. Little different between the SAP and the SAPS. They were going to sort this out “finish & klaar (possibly Selebi’s only contribution to SA and its value is moot). Where these orders came from is unclear. maybe SAPS, maybe NUM, maybe Ramaphosa?
There was never any thought given by SAPS to a strategic retreat, or containment to avoid killing miners and, as Ouppot somewhat euphemistically points out, some of the SAPS did it quite clinically and effectively.
The arrest was just a legalistic smokescreen, like affirmative action is for cadre deployment and BEE for tenderpreneurship. Both of which many lawyers, PdV included, rush to defend. The buck should stop with whoever gave orders to kill rather than retreat and suspended riot control in favour of sharp point ammunition.
But, like the Arms Deal “Enquiry”, I have little hope anything real or beneficial will come out of the enquiry.
Anonymouse says:
September 3, 2012 at 14:23 pm
Well, thank you Dr. Mouse for bringing some sanity (and sound legal arguments) to this debate!
John Roberts
September 4, 2012 at 11:29 am
Hey JR,
“But to refer to Maggs as a cunt because he is intellectually superior to you is going a bit far.”
I was going to thank you for the compliment.
But then it struck me.
There’s a sting in the tail.
Even an ant is “intellectually superior” to OzoneBoy!
Brett
Get us a name.
http://www.sowetanlive.co.za/news/2012/09/04/bull-sold-for-r26-million
Andrew writes:}}Until such time as the CC pertinently overturns the
Lungile and Nhlapo decisions, they remain law and in terms of stare decisis,.
they must be followed unless a subsequent higher court than the SCA (or the.
SCA itself) revisit their earlier decisions and decide to depart from them.{{
OK, how is it that the law-industry-clown-looters needed the CC to fix eg. the
mag. legislation [from Jaftha] after 50 years of abuse. Or is that only the
legislator’s duty?
RICH miners
http://www.timeslive.co.za/local/2012/09/04/cash-strapped-lonmin-miners-approach-lenders
Will the Marikana events, devalue to ANC’s valuable, cultivate SHARPVILLE icon?
How many people died in the 1922 show?
And pro-rata present population, how many is that?
http://www.bdlive.co.za/national/politics/2012/09/04/vavi-cosatu-in-difficult-dilemma
An important point is missing in Vavi’s assessment. It is the fact that the general “success” and resulting possible demise of his federation of trade unions is based on forgeries of definitions and certain obiter dictum(s) constructed by judges, published in their judgments since 1925 under the Industrial Conciliation Act of 1924 and its successors of 1937 and 1956, resulting in the new 1995 LRA. (All documentary evidence is at hand)
Labour relations in this Country had been turned upside-down by the use of these forgeries – so-called “schreiletts” (Schreiner, judge and Gauntlett, adv – the major actors and proponents of the forgeries), which formed the basis for the construction of significant sections of the 1995 LRA.
These schreiletts transformed innocent members of the Public into criminals who were prosecuted by the thousands each year in our Magistrates Courts. (note the 450 and 253 clothing companies in the WC and KZN).
Other effects of these malicious prosecutions may be detected in the rising unemployment and misery of large sections of the working class in this Country, and the abnormal rise in the number of Labour Broker firms.
Cosatu benefitted (so far) from the application of these schreiletts, in that the federation began to operate like Seifsa, a federation on the other side of the labour relations divide, by posing incorrectly as a trade union or as an employers’ organization respectively and giving the impression as if they are legally entitled to negotiate industrial agreements in terms of the LRA between employers and employees. As we all know that is not the case.
Neither Cosatu nor Seifsa may negotiate agreements in terms of the LRA , in the past or at present.
Both these types of federations (Seifsa already since 1944, thereby causing the initiation of an additional schreilett) make use of a further schreilett, constructed by P Faber, lawyer in cohorts with Gauntlett, adv, namely the forgery of the definition of “agreement” in the 1956 LRA.
The consequence of this idea was what became to be known as the new “majority rule” in labour relations. All competition is thereby thrown aside and the bigger companies destroy the smaller ones – what a scheme.
The Acts provide for ‘sufficient representativeness’ and not for ‘majority votes’.
An industrial (now bargaining) council is not a miniature Parliament, which may impose agreements on anybody in an Industry.
But it is exactly this idea of Vavi, (extracted from the schreiletts mentioned before), of “one industry – one trade union” that was the underlying incorrect principle which caused the rivalry between the two trade unions, ending in the massacre of Marikana.
The clear lines of interests, stated normally in the registration certificates issued by the Registrar, between the unions had been erased due to the fact that the information regarding those interests had to be hidden away from the public eye.
This became necessary because the equivalent information of the interests of employers’ organizations in their registration certificates had to be erased and hidden as well and in the first instance.
This became necessary because the interests of the employers’ organizations as recorded in their registration certificates is identical to the information in the registration certificates of the relevant industrial (now bargaining) councils, which is incorrect and not in terms of the Acts.
In other words, the councils are incorrectly registered in terms of the interests (industries or activities) of the relevant members of the employers’ organizations which are parties to such councils, allowing the imposition with any money demands made in terms of agreements on the so-called non-parties.
Thereby this council greed for money, illegally made possible by schreiletts, eventually led to Marikana and the possible break-up of Cosatu affiliate unions and Cosatu itself.
The employees want to be members of a union of their choice, which represents their particular interests (i.e. rock drilling).
Mr Vavi must have felt very uncomfortable all these years riding on, what he must have made himself to believe, a lion, what in reality, he knew, was really just a ram.
He also knows that, once the matter is exposed and in the open, the employees, who were made to believe that he is their lion, will revolt upon the realization that they have been following not a lion but at most a ram.
The funeral policy had originally been negotiated between NUM and the mine, and all category three to eight workers would have had R69 deducted from their salaries for the policy, regardless of whether they wanted it or not. It was also applicable to workers who belonged to other unions as well those who were unaffiliated. Workers first learned of this when they received their payslips last week, and according to Malema, workers had originally been told that only R39 would be deducted from their salaries for the benefit.
A number of striking workers told Daily Maverick that NUM had acted unilaterally – without consulting workers, or informing them about the benefit.
“They didn’t inform the people about the decision about the funeral policy,” one worker said.
“(NUM) leadership did not come when workers called, so people now want to choose their own leadership.”
According to Seshoka, mine management agreed to make the policy voluntary on Friday.
Gold Fields, however, has begged to differ.
Spokesman Sven Lunsche contends that the funeral policy issue was resolved on Wednesday already.
The differing accounts of the timeline for the resolution of the funeral policy complaint is significant because it raises questions of the communication channels between the branch leadership and the NUM bigwigs in Johannesburg.
“The problem now is an issue between the workers and the (NUM) branch leadership,” Seshoka said. According to Seshoka, workers have levelled allegations of misconduct against the NUM leadership at KDC East, and insist that elections be held for workers to choose new membership. And workers certainly do have a litany of complaints against the NUM leadership at KDC East.
“They are giving us rotten food,” one worker complained passionately.
Another worker interrupted, saying a member of the NUM leadership at KDC East actually owned the catering company that supplied the food to workers.
“When we go to them to tell them about the food they tell us ‘Go away, go to your compounds,’” he said.
More than one worker also alleged that workers had been receiving what they termed “photocopied” payslips, claiming that the branch leadership was responsible for handing out counterfeit payslips to workers. Other workers alleged that their payslips arrived in unsealed envelopes, saying again that NUM officials were somehow responsible.
And then, to top it all, workers feel they are being cheated of better salaries by union officials who have put their own interests ahead of employees.
“The money workers are getting is too little,” Zee said.
Seshoka indicated that senior NUM officials were holding out for due process at the KDC mine. “What should happen is the (branch) leaders should be suspended and then the allegations should be investigated,” he said.
It is, however, a process that workers have little patience for. “The process is going to take too long,” Zee argued. “We want these people removed, effective immediately.”
Workers are hellbent on going forth with a vote of no confidence in their branch leadership and then proceeding with the election, but NUM does not appear to be inclined towards a compromise.
“We are hoping that the issue can be resolved between the branch leadership and the miners,” Seshoka said.
According to Gold Fields, some 12,000 employees are participating in the strike, scuppering the KDC East operation production of 1,660 oz a day. Already Gold Fields management has been granted an urgent interdict to bring what they describe as “the unlawful and unprotected strike” to an end, but so far the interdict has been ineffective.
Lunsche has blamed the strike on a core group of between 1,000 and 2,000 workers, who he claims have been preventing their colleagues from going to work. In recent days, Gold Fields has repeatedly announced in statements that the strike is now a dispute among organised labour, and though the company claims to be doing all it can to help resolve the issue, it has placed the responsibility for the resolution of the strike firmly at NUM’s door.
Many workers, however, still feel that Gold Fields has a role to play in steering the strike towards a resolution.
“If management is saying it’s not their problem, then production is also not their problem,” said one miner, who refused to identify himself. “We want management to remove the current leadership.”
Emmanyel Seeiso, a pump supervisor, who works eight-hour shifts, six days a week, has a plan of action ready for mine management.
“Management must expel the (NUM branch) leadership,” he said. “And we can elect a temporary committee.”
In the meantime, Malema made his way to Westonaria on Monday, the latest pit stop in his mining revolution. Thus he continues to earn the wrath of senior NUM officials, who believe he is using the current tensions in the mining industry for his own benefit.
“We are very disappointed that people want to use a situation where deaths have taken place in the industry to revive their political careers,” he said. “What is happening in the mining industry is not only dangerous for the industry.”
Malema, however, countered the allegations of opportunism levelled against him by NUM, claiming that his attention to the mining industry was alive long before the massacre in Marikana.
“We don’t want to take advantage of our workers,” Malema said. “We are not starting (in the mines) today. We are not starting in Marikana. We have always been with the poor.”
And though Malema heard the grievances of the workers and told them more or less what they wanted to hear, when he left, workers milled around; many of them returned to their compounds while others stood, waiting expectantly. Malema has heard them; what now?
It is here, at the level of industrial unions stripped down to their branches, that ordinary workers experience their work, commitment and care. Or lack of it. And it is here that we may sense what lies in store for the business of trade unions in the rest of the country. And from the look and sound of what is happening at KDC East, there could be great tumult ahead. DM
Marikana: A common purpose for 162 miners – freedom By Mandy de Waal
Zapiro on Adv Smit
http://www.timeslive.co.za/local/2011/06/13/zapiro-cartoons#leaf
Alibama September 4, 2012 at 15:24 pm
Over 200. But that doesn’t matter cause it is not pc nor convenient to ever remember that there were also poor white Afrikaners who suffered under British colonialism / capitalism and resorted to fascism embracing racism in their struggle for economic freedom.
Dejavu.
“Political analyst Steven Friedman said yesterday the Brazilian model would not succeed in SA because the ANC was a nationalist party, not a workers’ party.”
Correct. Another [racist] Nationalist party.What a surprise.
“Political analyst Steven Friedman said yesterday the Brazilian model would not succeed in SA”
With respect, this only shows how out of touch poor Prof Friedman is. If only Home Affairs would process her work visa, Gisele Bundschen would do fabulously well here!
Thanks.
“Could these views have been animated by a blinding animosity towards the miners; or by a fear of the protesting (black) hordes; or by an unexamined belief that the miners deserved to be punished collectively because one or more persons who took part in the strike had allegedly killed two police officers?”
Hardly. Piss poor tactic though to taint those who disagree with you as white racists.
You should be happy then to hear that even the “White Nation” agrees with the views put forward by you and the majority of your readers
http://www.whitenationnetwork.com/paper/?p=3426
Gwebecimele says:
September 3, 2012 at 16:48 pm
Gwebecimele, please repeat this point. Often. Most sheeple have a short attention span. Many are stupid.
This massacre was born the week before the cops promised to use “maximum force”.
@Fassbinder
You probably mean Gisele Bundchen.
Just like you probably meant Fassbender.
Brett
I hear some farmers are using boosting cables on their farmworkers in the NW
@ JR
With respect, I did mean Gisele Bundschen, her more alluring cousin from Los Palmes. But you are right that I meant Fassbender.
Apologies and … thanks.
@Fassbinder
You ain’t the only fake around here mate (wink wink)
JR, you must be thinking of Rainer Werner Fassbinder.
http://en.wikipedia.org/wiki/Rainer_Werner_Fassbinder
Thanks a lot.
“..I hear some farmers are using boosting cables on their farmworkers in the NW”
I read that story.
Those fucking dutchmen cunts should be hanged in public. By English-speaking whites. They unfortunately smear all white people with their same scummy brush. And some people still wonder why farm murders take place. This goes to the heart of why whites are not trusted by fellow black South Africans. You will hear no outcry from white South Africans. But hell, kill a fucking rhino and white South Africa mobilises in force.
FUCK THE RHINO,SEALS AND WHALES. SAVE OUR COUNTRY.
[...] Source: http://constitutionallyspeaking.co.za/marikana-murder-charge-withdrawal-the-first-glimmer-of-sanity/ [...]
[...] Source: http://constitutionallyspeaking.co.za/marikana-murder-charge-withdrawal-the-first-glimmer-of-sanity/ [...]
[...] Source: http://constitutionallyspeaking.co.za/marikana-murder-charge-withdrawal-the-first-glimmer-of-sanity/ [...]
Gwebecimele says:
September 4, 2012 at 22:35 pm
Yes, every year we hear of a disgusting incident like that.
Every day we hear of white victims murdered by black perpetrators.
Several times a day. That is a whole heap of ‘disgust’.
John Roberts says:
September 4, 2012 at 23:13 pm
Why don’t you suck my dick?
Typical… Crimes committed by “white” people are not as bad as those committed by “black” people. Pain felt by “blacks” is not as important as pain felt by “whites”. “You people” are worse than us. Blah blah blah
@ Brett
“Why don’t you suck my dick?”
Maggs, what do you say about Brett reverting to his old habit of using this blog to solicit fellatio from fellow bloggers he has not even met? I say he should limit his postings on this blog to constitutional issues!
Mikhail Dworkin Fassbinder
September 5, 2012 at 11:35 am
Dworky,
I dunno if Brett has crossed the line wrt constitutional issues yet.
Methinks that President Zuma often says the same things albeit with different words.
Like “The constitution give me the power to appoint Simelane as NDPP and Moegeng as CJ. Anyone who does not like it, speak to Brett!!!”.
WDYSTT?
Mikhail Dworkin Fassbinder says:
September 5, 2012 at 11:35 am
I stongly disagree. Fellatio is indeed a constitutional matter!
See National Coalition of Gay and Lesbian Equality v Minister of Justice 1998 (2) SACR 557 (CC).
@ Chris (not too right wing)
“Fellatio is indeed a constitutional matter!”
Point taken, Chris. But how far does Brett really advance the debate about the National Coalition case by simply demanding that JR fellate him?
Mikhail Dworkin Fassbinder
September 5, 2012 at 13:19 pm
Dworky,
“But how far does Brett really advance the debate about the National Coalition case by simply demanding that JR fellate him?”
Are you suggesting that Brett will make more impact by, er, blowing his own trumpet?
………African Miners should be an inspiration to the Aussies …… for working for $2 a day in mines.
The Aussie Rock Drillers are earning more than 3 to 4 times the min wage in Aussie A$15-30 (average of +/- A$ 60 an hour).
SA Rock driller avergae 40CM a week – Aussie Average 200 CM a week (5 x more productive).
Something has to give somewhere!!!
http://www.bbc.co.uk/news/business-19487985
Is Ramphele also about to buy a buffalo?
http://www.sowetanlive.co.za/news/2012/09/12/strike-5-days-a-month—malema
After having watched these cell-phone videos, I must say, I withdraw my earlier stances in this regard (which were based on the TV footage shown by the various news agencies), and I would ventuure to say: “Some of the police can and must be charged with murder”. See http://www.news24.com/SouthAfrica/News/Damning-new-footage-of-Marikana-shooting-20130128