Marikana: No common purpose to commit suicide

News that the National Prosecuting Authority (NPA) has decided to charge 259 arrested Marikana miners with the murder of their 34 colleagues who were shot dead by the police, is bizarre and shocking and represents a flagrant abuse of the criminal justice system, most probably in an effort to protect the police and/or politicians like Jacob Zuma and Nathi Mthethwa.

In the dying days of the pre-democratic era, under increased internal and external pressure from opponents of Apartheid, the state relied more and more on the provisions of the Riotous Assembly Act as well as the common purpose doctrine in an attempt to criminalise the actions of all people involved in protest against the National Party government.

Section 18 of the Riotous Assemblies Act of 1956 (which, incidentally, was never revoked by the new Parliament and is still on the statute books) states that any person who conspires with any other person to aid in the commissioning of a crime or incites or instigates any other person to commit a crime, is guilty of a crime – as if he or she committed the actual crime him or herself. Incitement to commit a crime is also a criminal offence in our common law.

The Apartheid state often used this provision to secure a criminal conviction against one or more of the leaders of a protest march, or against leaders of struggle organisations like the ANC (and later the UDF) whose members (on the instructions of the leader or leaders), had taken part in sabotage activities or the assault or killing of representatives of the Apartheid state. Even where that leader had not taken part in the sabotage or killing, he or she would be convicted of inciting the assault or the killing.

Later the state began to fall back on the common purpose doctrine, which originated in English law and was introduced into South African law via the ominously named “Native Territories Penal Code”. At the time the courts interpreted this doctrine to apply to all members of a crowd who had “actively associated” with criminal conduct committed by one member of the crowd – even if those charged were not involved at all in the commissioning of the crime.

In 1988, for example, 26 people were convicted of the murder of a councillor in Upington because the state could prove (although even that proof was rather flimsy) that they were all members of the crowd who congregated outside the councillor’s house before the killing occurred. The so-called “Sharpeville 6” were similarly convicted and sentenced to death with the help of the common purpose doctrine and only escaped being killed by the state thanks to the moratorium placed on the execution of the death penalty by FW de Klerk in February 1990.

In 2003, in the case of Thebus and Another v S, the Constitutional Court declined to abolis the common purpose doctrine, affirming a narrower definition of the doctrine developed by the lower courts which states that a person could only be convicted in terms of this doctrine if he or she:

(i) was present at the scene where the crime took place; (ii) must have been aware that the crime was being committed; (iii) must have intended to make common cause with those who were actually perpetrating the crime; (iv) must have manifested his or her sharing of a common purpose with the perpetrators of the crime by performing some act of association with the conduct of those involved in the crime; (v) must have had the requisite intention, which in the case of murder would require that he or she must have intended the victims to be killed, or he or she must have foreseen the possibility of their being killed and performed his own act of association with recklessness as to whether or not death was to ensue.

Unless what we saw on our TV screens never happened or unless the NPA is hiding shocking and bizarre conspiracy theory-type evidence from us that places the events we saw on television in an entirely different light, there could be no possible valid reason for the NPA to have charged the 259 miners with the murder of their 34 comrades killed by the police. Not in terms of the incitement laws, nor in terms of the common purpose doctrine.

Frank Lesenyego, the NPA’s regional spokesman, is reported as justifying the charges of murder on the basis that:

It’s technical but, in legal [terms], when people attack or confront [the police] and a shooting takes place which results in fatalities… suspects arrested, irrespective of whether they shot police members or the police shot them, are charged with murder.

This statement is, unfortunately, not true. In the 25 years since I first studied criminal law, I have never ever heard of such a thing.

The statement is also clearly wrong from a legal perspective. The NPA seems wrongly to conflate (either deliberately or out of shocking ignorance) allegations that the miners provoked the police, on the one hand, with allegations that the miners themselves incited the police to shoot at them because they had the intention to commit suicide by getting the police to kill them.

Even if it was true that the miners provoked the police, this could never, ever, make them liable for the killing of their comrades. At most, provocation could be a factor taken into account in judging whether the police officers involved in the massacre should be found guilty of murder or not.

One can only be convicted of incitement to murder if it can be shown that one communicated with another party (in this case the police) in an attempt to influence their minds and get them to shoot and kill the miners (the very people charged with incitement). This is so far-fetched that if one of my students had written it in an exam I would have asked student counselling to have a word with that student to see if he or she were emotionally stable.

Neither can they be convicted of murder by relying on the common purpose doctrine. No court is going to find that those charged intended to make common cause with the police to shoot their own comrades. Neither will a court find that the miners acted in a way to demonstrated that they associated with the actions of the police who killed the 34 miners.

I cannot imagine that even the out-of-their-depth prosecutors and members of the NPA leadership really believe that any court will find the miners guilty of murder for the killing of their comrades by the police. This means they charged the miners with murder, knowing full well that the charges would never stick, with an entirely different aim.

Perhaps they are clumsily trying to stigmatise the miners in the eyes of the public. Maybe they are trying to intimidate the miners in an attempt to break their spirit. Maybe they are trying to turn workers against AMCU, which is making inroads against Jacob Zuma supporting NUM. Maybe they are trying to protect the police or the minister of police and the president, and believe attack is the best means of defence.

No matter what, the decision seems to flout the NPA Act as well as the Constitution, which requires every member of the NPA to act without fear, favour or prejudice. Instead they have acted with fear, favour and prejudice to advance some or another political agenda, further eroding the little trust South Africans might still have left in them. It is, indeed, shameful.

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