Constitutional Hill

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.

  • Luvuyo Dlamini

    Thank you prof for the clarity

  • George Gildenhuys

    Wtf?! NPA clearly not independent.

    Emotionally stable… good one ;)

  • khosi

    I giggle with a tear in my one eye.

    How could we get it so wrong?

  • sirjay jonson

    The situation is so absurd as to wonder where rationality even exists within South African authorities. It boggles one’s brain to the point of leaving one almost speechless. I can only imagine anyone following this story internationally, shaking their head in disbelief and thinking, ‘oh my god, are these black people really that stupid, that inane, lacking any sense or substance’.

    Is there anyone left in the NPA with any pride or dignity? If so, its not deserved.

    You’ve undoubtedly read the lead article at Daily Maverick today: http://dailymaverick.co.za/article/2012-08-30-the-murder-fields-of-marikana-the-cold-murder-fields-of-marikana

    I’ve wondered for so long how folk can justify their racism. Now I understand.

  • sirjay jonson

    I think I’m going to go one step further, considering all the variables which most with any intelligence are well aware of, and not just Marikana. It is just the most recent example.

    The former South African Apartheid state has just changed color. My apologies to my hosts, nevertheless you who are the oppressors now are just as bad, if not worse. Its 2012, nogul.

  • Helen

    Pierre I am very concerned that these ludicrous charges are being brought in an attempt to place key witnesses and actors in a sub judice position when the Commission of Inquiry starts its investigations. Already the autopsies would be part of the evidence, etc etc etc.

    I’m drafting a letter to the Acting NPDD asking that the decision to prosecute be reviewed. I’ve been in touch with Andrea Duresh due to the Prosecutor’s comments sounding so worryingly like common purpose and she is appalled and wants to be of help to any iniative.

    I’ll get a copy of the draft to you and others so we can ensure we’ve left no stone unturned. Then I think we must just unleash on the NPA. This situation, of people not even being present in Court(!), and bail denied on the grounds of poverty for having no fixed abode (all 259???) must end now.

  • Maggs Naidu – (maggsnaidu@hotmail.com)

    So Zuma visited the miners claiming “we’re going to take your demand for R12 500 to Lonmin”.

    What he probably meant was “Murderers. Go straight to jail. Don’t pass begin. Don’t collect R200!”

  • pekkil monta

    I guess now we know what happens when the securocrats have this country sawn up? Impunity rules. Time to sell, and leave

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  • http://mhambi.com Wessel van Rensburg (@wildebees)

    The South African media’s odd behaviour re Marikana is what I don’t get. Are they not reporting those allegations because they don’t want to play into Malema hands? I don’t get it.

    http://mhambi.com/2012/08/the-inequality-of-attention-marikana/

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  • Alibama

    }}Section 18 of the Riotous Assemblies Act of 1956 (which, incidentally, was never revoked by the new Parliament{{
    Zimbo-PF also left the legislation to use.
    I wonder how it was/is in Kenya?
    And what does it tell you, it you’re capable of decoding it?

  • david

    My biggest query is why no-one has been charged with incitement to violence? AMCU chairman for a start, any witch doctors, or others that were seemingly involved in the escalations?

  • Richard

    If it is as ludicrous as you state, then the obvious question is who benefits from the quick removal and silencing of the miners. First the company which declared the protest illegal and called in the police, and had initially threatened to fire all miners who did not return to work immediately, only softening their stance at the request of the government/ the president. The President, who is overseeing one of the most atrocious killings by government forces since apartheid, and continued reporting of it would only damage President Zuma and the ANC.
    Is anyone getting bribed? if so how much.
    The simple conclusion is in the time it would take to try the miners, it would mostly be forgotten, most of these men who probably have families would only be too glad to go back to work to provide for their wife and children, and no one would have the heart to kick up a fuss. This has nothing to do with the word of law, this is just a means to break the spirits of the miners, and remind them of their place and who their masters are.

    It is sad to see something like this still prevalent in an African country, but it just means that justice has no place anywhere.

  • B A Robson

    It’s not that complicated! Charge the miners with murder, grant bail, and a great many will simply disappear off the map. Its one way of getting rid of the ringleaders while sending out an intimidating message to those on the job.

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  • HP

    They should blame the inventors of the “Schreiletts” and the resulting abandoning of the clear lines between rival trade unions, recorded as distinct different interests in their registration certificates. These lines were virtually erased due to the need to hide the incorrect and unlawful registration of an extended jurisdictional limitation of bargaining councils.
    These councils are incorrectly registered in respect of the interests (industries) of the employers’ organisations, instead of, in terms of the requirements of the Act under which they registered, in respect of its members and some or all their employees.

    With the correct registration certificates in place, NUM would not have interfered with AMCU and each union does their own bargaining on behalf of their members with Lonmin – the design of the previous LRA’s.

    Who is to blame ?
    Schreiner, Cheadle, Brassey, Gauntlett, Wallis, Fourie, Ehlers & Co, some of the inventors of the so-called new LRA 1995, an Act whose significant sections are based on forgery – Schreiletts.

  • http://innocent.org.uk Andrew Green

    Common purpose is the same doctrine as joint enterprise in the UK, where it’s being used as a’lazy law’ by the police to clear up murders without proper investigations, resulting in the conviction of many innocent individuals, because they need so little evidence to get convictions, usually in murder cases. This is a legacy of colonialism that SA could well do without!

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  • Chris (Not the right wing guy)

    It all depends if you reject the version given by the police. I saw the footage on tv, but still don’t know what exactly happened. I don’t know what other evidence there is. Only a psychic will be able to say on what was shown on tv exactly what happened. By now most reasonably informed South African know that the police version in a nutshell is that the crowd of miners attacked them, and they discharged their fire arms in self defence.

    Is it so absurd to say the NPA might have evidence to proof the following:
    1. The miners planned an attack on the police.
    2. During the attack they were all present, part of the attacking force and thus shared a common purpose to unlawfully attack the police.
    3. The miners foresaw the possibility that during such an attack the police would shoot at them, killing some of them, and stood reckless as to whether it happened.

    I can’t say if it can be proved, because I’m not privy to the police dockets. But if points 1, 2 and 3 above are proved, they are all guilty of murder in terms of South African law, as enunciated in cases such as Tebus.

    I’m certainly not going to believe something simply because its been reported in the Socialist Worker.

  • Pekkil

    mr chris – you clearly missed the article on the Daily Maverick today, referenced in one of the first comments above? then think again about exactly how scathing you would want to be Socialist Worker – or any other source that you would perhaps rather ignore?

  • John Roberts

    Guess what ?

    Sweet fuckall will happen. As usual. Tomorrow it will be forgotten. Replaced by some new lunatic decision by the ANC government.

    And then you’ll all say the same things over and over again

    Yaaaawn.

  • John Roberts

    And by the way. This is Africa. It’s not for sissies. Get over it. Nobody gives a fuck. At least not enough to do anything.

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  • HP

    Another legacy of colonialism is the laissez-faire attitude of the Union Government when still a British Dominion.
    The then Minister of Labour, Colonel Creswell allowed himself to be dictated to by some members of a newly established conciliation board and accordingly applied a resulting agreement unlawfully on all employers and employees in the building industry, whereas the Industrial Conciliation Act 1924, limits the power of the Minster to extend the agreement, at most, to all employers and employees in the undertaking, industry, trade or occupation concerned with the agreement. These are the member employers (undertakings engaged in their industries) and some or all their employees (employed on trades or occupations).

    The problem obviously was that the judges hearing disputes were confronted as early as 1925 with two different sets of words quoting the law – 1. the actual Act and 2. the Minster’s Notice in the Government Gazette.

    Instead of correcting the Minister’s incorrect Notice the judges started to invent Schreiletts, sleights of hand by not quoting the correct section of the Act or by quoting the correct section but incompletely, or creating obiter dictums completely removed from the correct application of the Act.
    Eventually, Schreiner, J in 1952 went so far as to forge a relevant definition in the 1937 Act and subsequently interpreted this forgery to suit the Minister’s incorrect Notice in the Gazette.
    This was followed by …………. stories of total madness (more about this later)

    Thus was created the problem of the unlawful imposition of industrial (now bargaining) councils on the so-called non-parties –– they are really non-members and all are innocent members of the public who were unlawfully prosecuted in the Magistrates Courts by the thousands each year.

  • Nico Boshoff

    Pierre, just a question out of legal curiosity:

    Let’s assume one or more of the miners is found to have shot at the police present and in retaliation fire the police hit and kill fellow unarmed miners next to the ones that fired the shots.

    Would the State be able to push the limits of dolus indirectus / eventualis in respect of the miners who fired the shots and as a result prosecute them for murder due to the foreseeable fact of retaliation from the police and death of those around them? Is this too remote?

    My gut says no, it’s pushing it too far, but what would the case be with a robber who uses a hostage as a human shield, firing at police and then in the return fire the police unintentionally hit and kill the hostage?

    Just asking out of interest.

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  • Oupoot

    Why is the 400 policemen who fired the shots not also in custody? The state asked for yet more time to investigate, so it means that the investigation is incomplete. By logic, it means that they could not have conclusively proven (with some degree of getting a verdict) whether to prosecute the miners or the policement for the killings. If the state arrested the miners, then the state has an equal duty to arrest all the policement too, right?

    Or are they hoping that some of the miners will crack under interogation (what would probably constitute as torture under Geneva convention) and thereby implicate other miners? Suddenly they will have their witnesses.

    Why is this magistrate still entertaining this farce? Hoping to get a promotion to a higher court? Besides, if the NPA did add murder charges to the charge sheet, should these cases not go to the high court? Which is the applicable high court: Mafikeng? Is there one in Garangkuwa or Rustenburg? Or will it go to Pretoria?

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  • Chris (Not the right wing guy)

    Pekkil
    August 30, 2012 at 21:37 pm

    Yes Pekkil, I did not read the article in the Daily Maverick before now, but my reference to the Socialist Worker is actually about what the NPA spokesman reportedly said, not what happened at Marikana. After 30 years of practicing law I’m reluctant to just accept any untested version, whether by a policeman, a miner, a reporter or professor.

  • Anele

    Wow!!! So interesting.

    I think I should change the accountancy career and do law, its so interesting and thought-provoking.

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  • Brett Nortje

    Wessel van Rensburg (@wildebees) says:
    August 30, 2012 at 19:19 pm

    Wessel, I’ve been trying to explain to regular visitors to this blog that the media watchdog was locked up the day before the massacre and that the media are too scared to let it out now for fear it starts indicating skeletons in the cupboard.

    The way to tackle this is to complain to the BCCCSA that high-ranking police representatives clearly expressed an intention the day before the massacre to break up the strike using ‘maximum force’ and that the dumbassreporters from ETV and ENuus (the report I personally saw) had not asked one question about S49 of the CPA nor Walters nor proportionality.

    I’ve asked the other Gun Owners whether we want to go head to head with ETV over their vacuousness again but no-one seems particularly enthused about taking up the cudgels for a mob who tortured 2 cops 2 rentacops and a supervisor to death.

    Neither am I. Imagine cutting off someone’s jaw while he is still alive?

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  • Mthetheleli

    How did we arrive to this???????????

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  • Maggs Naidu – (maggsnaidu@hotmail.com)

    Mthetheleli
    August 31, 2012 at 2:13 am

    Hey Mthetheleli

    “How did we arrive to this???????????”

    Polokwane?

    Maybe Manguang!

  • LG

    A dark cloud is hovering above us as our legal system take a journey back into the dark tunnels apartheid. Common purpose is a legal doctrine stating that all participants in a crime are responsible for its consequences, even if it wasn’t the original intention. This is mind boggling to even think that the law once used by the brutal apartheid government could simply be invoked to hide the attrocities committed by our trusted Police Service of our Democratic government. in those dark days of apartheid, this law used in the trial of the Sharpeville Six, a group of protesters in Apartheid-era South Africa sentenced to death when the mob they were part of murdered a local politician.

  • HP

    @ Mthetheli
    on August 31, 2012 at 2:13am
    “How did we arrive to this???????????”

    Very good question!

    The answer may be found in the cowardly attitude of the judiciary of this Country in regard to the interpretation of certain Acts, specifically the Industrial Conciliation (Labour Relations) Acts 1924, 1937, 1956 and 1995 and the incompetence or unwillingness of the judges concerned to even try to understand the tenets of these Acts. (more about this later)

    Very few judges attempted to get to grips with the specifically and clearly defined functions of these Acts and relied instead on the incorrect Notices published by the Minister in the Government Gazettes.
    Brave attempts were made by judges Solomon and Tindall in 1927 and by judge Goldstone in 1980, but again, even these judges could not comprehend the discrepancy between the words of the Act and the incorrect words used in the Minister’s Notice – supposed to be in terms of the Act.

    Even these judges “folded under questioning”- they appeased the executive power (the Minister) and thereby abandoned and lost their judicial independence in regard to these Acts.
    Once the Ministers’ incorrect method had been accepted by the judiciary there was no turning back for the responsible officials of the Department of Manpower (Labour), who now had to comply with the demands of the representatives of industrial councils for more and more concessions, regarding for instance the money (pension and ..) funds established in terms of the agreements, the Minister was requested to make binding on all employers and employees in certain “industries”.

    The concept of these “industries” does not exist in terms of the Act but is a “Schreilett” invented, mainly by Seifsa in 1944 and attempted to be made legal by Angus, Director of Seifsa in 1992 with the help of his counsel Gauntlett in cohort with the opposing advocate Wallis, who by the way allowed Angus to submit the same schreilett to the Appeal Court years later in 2005.

    The resulting forgery (schreilett) is there for everybody to see in Seifsa v Numsa, 1992.

    It concerns the exchange in the definition of “employers’ organisation” of the possessive determiner “their” with the definite article “the”.

    More and more incorrect (hideous) judgments were made and the Department had to initiate relevant adjustments of the Act again and again to accommodate these pieces of judicial apartheid nonsense.
    Well, some judges (i.e. Kriek, Thirion) started to cry out, indicating their problems to understand the Act and then …. from nowhere … arrive the “Einsteins “ of Labour Law with their invention and application of more schreiletts, subsequently published in significant parts of their new LRA 1995.

    The result of having to hide away the specific interests of trade unions from the records in their registration certificates may be seen in the escalation of the Marikana conflict between two unions.

    Maybe, it is relevant now to quote again the concerns of the previous Labour Minister Tito Mboweni, expressed in Business Day on 21 October 2005 under the heading “Tito Mboweni rues ‘unintended consequences’ of his Labour Law”:

    From his vantage point as Reserve Bank governor, Tito Mboweni looked back in apparent despair yesterday at what has become of labour law reforms he steered through as SA’s first post-apartheid labour Minister. Strongly suggesting his reforms had unintentionally become a barrier to growth, he lashed out at those responsible for implementing them.

    “The basic philosophy and intention of the labour market reforms we put in place since 1994 have to a large extent been undermined by lawyers, by the behaviour of the CCMA commissioners, by the behaviour of business and labour at the bargaining councils, and to some extent by the bureaucrats at the department of labour,” Mboweni said.

    We tried to tell Tito Mboweni the story in 1994 but he did not want to listen, “maybe he is listening now.”

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  • Pierre De Vos

    Nico Boshoff, your scenario, I believe, cannot lead to conviction. This is because a person can only be convicted of murder if he or she acted unlawfully to cause the death of another, with the intention of doing so. First I do not believe dolus eventualis could be stretched this far, otherwise every person who have ever provoked somebody else would be capable of being convicted of the actions of the person who had been provoked into acting in a criminal way. In any case, if I was defense council I would make a meal of the fact that no miner would have been able to foresee, let alone reconcile themselves to this possibility, that the police would open fire and kill 34 people. Second, and more importantly, the reason why common purpose is invoked here, is because the state would never be able to prove the causal connection between the actions of the miners and the killings by the police. The two acts are so remote that the requirements for causality would never be met. So the actions of the police are being ascribed to the miners via the common purpose doctrine. But as explained at least two of the requirements for common purpose are not met, and clearly so,

  • http://www.ozoneblue.co.za/ ozoneblue

    “Maybe they are trying to turn workers against AMCU, which is making inroads against Jacob Zuma supporting NUM.”

    I think that before we [perhaps intentionally] morph this into another simplistic personality cult/power clash issue again instead of a ideological one, what seems to be missing from this article and the context it provides is any mention of the fact that the AMCU strike was an illegal one marred by violence and disregard for the Constitution and laws of our country.

  • http://www.ozoneblue.co.za/ ozoneblue

    Pierre De Vos
    August 31, 2012 at 8:47 am

    Why is it necessary for you to manipulate every analysis/commentary on you blog into a political diatribe against that much hated patriarch Jacob Zuma. If you honestly believe that NUM is supporting Zuma and this massacre was the result of “AMCU … *making inroads* against Jacob Zuma supporting NUM”, note the euphemism, it almost sound is if you tacitly approve the methods employed in this case to “make inroads” – all be it illegal, ultra violent and unconstitutional methods.

  • http://www.ozoneblue.co.za/ ozoneblue

    But please note the subtext, the way the story is being framed, and consistent with the political bias on this blog.

    “The strike and the government’s iron-fisted response are emblematic of the frustration with the slow pace of transforming South Africa’s largely white-owned business establishment and the growing perception that the A.N.C. and its allies have become too cozy with big business. As a result, many people here, especially the young, have looked for more radical solutions.

    “N.U.M. has deserted us,” said one of the striking workers, who gave his name as Kelebone, referring to the older union, the National Union of Mineworkers, by its abbreviation. “N.U.M. is working with the white people and getting money. They forgot about the workers.” ”

    Again the issue is not the abuse of the workers in a capitalist system, but it is rather painted as a racial issue i.e. the “white-owned business establishment”.

    http://www.nytimes.com/2012/08/17/world/africa/south-african-police-fire-on-striking-miners.html?_r=1

  • http://www.ozoneblue.co.za/ ozoneblue

    At least William Gumede gets it right.

    “South Africa does not have a system based on meritocracy, which rewards hard work and excellence.

    As a result, a small black elite, from the ranks of the ANC and its trade union ally, the Congress of South African Trade Unions (Cosatu), has become fabulously rich through shares in long-established white companies, winning government contracts and holding top posts in the public sector – all under the guise of black economic empowerment.

    There has been no genuine effort to lift black South Africans out of poverty by giving them quality state education and technical skills, or to help small businesses grow.”

    http://www.bbc.co.uk/news/world-africa-19355104

    For had we employed a [White supremacist] system of meritocracy, then we may have appointed a Police Commissioner (irrespective of race, gender, ethnicity, religious, sexual orientation, disability, body mass or height) with some experience and back ground in maintaining law and order without massacring 34 disgruntled workers at a time.

  • ProBono

    Prof, I am pleased I came across this article. In all honesty, when I first heard the report regarding the NPA decision to rely on common purpose, I could not help but note that this was the approach of the Apartheid regime towards anti-apartheid protestors.

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  • Mikhail Dworkin Fassbinder

    @ KHOSI/SIRJAY

    You cannot deny that the events at Marikana were caused by RACISM and the lack of TRANSFORMATION.

    Thanks,

  • http://www.ozoneblue.co.za/ ozoneblue

    Mikhail Dworkin Fassbinder
    August 31, 2012 at 10:41 am

    I disagree mfd. When I put on my fem-crit goggles to remain relevant and intellectually fashionable these events where caused by the neanderthal [aka African] male dominated patriarchal society.

    http://news.bbcimg.co.uk/media/images/62450000/jpg/_62450511_sp.jpg

  • Henri

    “This means they charged the miners with murder, knowing full well that the charges would never stick, with an entirely different aim.”

    This means this is the way the ANC leadership and the Cabinet treats their own people.
    This means this is the sinister way the ANC is manipulating the legal system to repress their own people.

    This country has moved sooooo far down these last four [Zuma] years that it is difficult to fathom where we’re gonna be another four years further down the drain.

  • Gwebecimele

    In Taung near Northern Cape communities closed schools for about two month and the Min of Education and other officials are scared to visit the area and resolve the service delivery protest. The brave police who tackled the “armed muti controlled warriors of Marikana” are yet to escort officials to the area.

    Just like the text book matter, two months passed while all of us were sleeping.

  • Simon

    Sorry if someone else has spotted it (haven’t been through the comments in detail), but surely this approach would mean that the NPA regards the shooting of the miners by the SAPS as a criminal offence? Maybe they intend to hang the officers out to dry too, but as I understand the doctrine, one can only make common purpose with someone WHO COMMITS A CRIME: if the position is that the officers were justified in shooting (presumably in private/self defence), and the killings were not therefore unlawful, there can be no question of other people making common purpose with them?

  • Gwebecimele

    We don’t hesitate to unleash police on citizens for the interests of the British and their BEE lackeys.

  • Gwebecimele

    Northern Cape – Three schools have been burned down, 64 schools have closed and 16 000 pupils are unable to attend school.

    Public violence around service delivery in the Northern Cape has brought education in the Johan Taolo Gaetsewe District Municipality, in which Kuruman is situated, to a halt.

    Panyaza Lesufi, spokesman for the Department of Basic Education, said on Thursday: “The situation remains the same: 64 schools in the affected area remain closed. The 24 schools that were reopened outside the affected area”.

    “I can confirm that a (neutral) religious leader is acting as a go-between and mediator between the protesters and the Department of Education. He is currently meeting with the protesters,” said Lesufi.

    “Based on his feedback, the department will decide on whether it will be necessary to launch a full-blown to attempt to resolve the impasse,” said Lesufi.

    Angie Motshekga, Minister of Basic Education, has been unable to visit the affected area due to “the high level of intimidation and disruptions”, said Lesufi, who had earlier called on police to step in and stabilise the situation to allow schools to re-open.

    “These acts of vandalism (burning of schools) must be investigated and culprits be identified and appropriate action be taken by our law enforcement agencies,” said Lesufi.

    “The majority of parents have asked us to re-open the schools. Once the situation has been stabilised the schools will be re-opened.”

    Lesufi said the demands tabled by the protesters were not education-related. Residents have been protesting over the lack of tarred roads in the municipality.

    The education department was focusing its support on matric pupils as there was a full recovery plan for pupils in the lower grades.

    IFP spokesman Alfred Mpontshane said no matter how many camps or catch-up plans the education department had, children whose schooling was continually disrupted could not possibly be expected to achieve their potential.

    Patrick Mabilo, the Northern Cape MEC for Transport, Safety and Liaison, said that more police officers and intelligence operatives would be deployed to the affected areas to resolve the problems.

    “We cannot allow this anarchy to continue. We are sending in more law enforcement officers to all affected areas to restore calm… they must be relentless in their efforts to get to the masterminds who are behind the violence there,” Mabilo said.

    A source in one of the troubled villages told sister newspaper the DFA police were afraid of arresting those responsible for violence because their families were being threatened.

    Cape Argus

  • http://www.ozoneblue.co.za/ ozoneblue

    Gwebecimele
    August 31, 2012 at 11:28 am

    “We don’t hesitate to unleash police on citizens for the interests of the British and their BEE lackeys.”

    Exactly. Interesting enough even the BBC “forgot” to mention the quite obvious British business interest either, the apparent conflict of interest between Barclay/Absa as financier, as a British owned Lonmin and our honorable Police Commisioner who have been promoted to where she is now through the Barclays/Absa BEE system.

    It is merely truncated to “white-owned business” and in the long run I’m sure after Malema has crushed all systemic resistance posed by organised labour the final solution would be to shoot the boer.

    http://www.absacapital.com/MediaReleases/Pages/AbsaCapitalandBarclaysCapitalrelaunch.aspx

  • Anonymouse

    Chris (Not the right wing guy) says:
    August 30, 2012 at 21:34 pm

    “But if points 1, 2 and 3 above are proved, they are all guilty of murder in terms of South African law, as enunciated in cases such as Tebus.”

    Of course, not only applying the sinister doctrine of common purpose, but also the test for dolus eventualis, one might arrive at a guilty verdict. Viz the common practice of the NPA nowadays to, when an armed robbery is botched up and some of the robbers killed in a shootout with the police, the surviving robbers, if caught, are charged, not only of robbery with aggravating circumstances, but also of murder. And some convictions have in fact ensued from such practice. If robbers (also those who were not aremd and did not fire the fatal shot) can be held accountable for the murder of one of the robbery victims, provided that they participated in the robbery, knew some were armed and also knew (foresaw) that, in case of resistance, someone could be killed – I can see no reason why they cannot also be held accountable for murder if one or more of their compatriots die in the process, either by their own bullets, or by the bullets of the victims, poloice or private persons assisting the victims.

    In the Marikana incident: If all the arrested potesters were armed and participated in storming the police (and continued doing so after tear gas and rubber bullets were not effective enough to halt the charge); and if it can further be inferred that they subjectively knew (or foresaw) that the police might (not necessarily ‘would’) open fire with live ammunition, then they can be held accountable of murder on grounds of common purpose and by applying the test for dolus eventualis. In fact, I think the organizers of the protest action can also be held guilty on this ground. However, the main question that needs be answered is whether their guilt can be established by the available evidence. If not, they will be acquitted, but if so, they will be convicted.

    Lastly, it does not reallymake sense to argue that, for a successful prosecution, all the participants in the group must have had the ‘intention’ to commit suicide, and that it can in the circumstances not be proven that they directly intended (or willed) their suicide. Such an argument loses sight of the fact that our law recognizes not only direct intent (dolus directus) but also dolus eventualis. For example, a motorist rarely ventures onto the open road with the direct intention to commit suicide, but all motorists know that to drive a motor vehicle is a dangerous occupation and that the slightest mistake might result in loss of life (even their own). Now, taken that inherent knowledge that death might ensue from dangerous driving, if they recklessly persiost in driving dangerously (with wanton disregard for their own or others’ lives), then if a person is killed in the process, such a motorist can be held guilty of murder (and not only culpable homicide – negligent killing). Once this is understood, it can be understood why people are in recent times charged with murder rather than culp in motor vehicle accident cases (viz the case of the driver who skipped the railway crossing and the JubJub matter) – and it cannot be so absurd to believe that the state cannot succeed in sucessfully prosecuting for murder in the Lonmin instance. It all depends on the available evidence and, if they are eventually charged, whether the courts will accept the available evidence as establishing their guilt.

  • http://www.ozoneblue.co.za/ ozoneblue

    Anonymouse
    August 31, 2012 at 11:49 am

    “In fact, I think the organizers of the protest action can also be held guilty on this ground.”

    That’s the thing.

    “And he was clear on what should happen next.

    “You must never retreat, even in the face of death,” he told the gathering, not far from the koppie where 34 had died only days before.

    “Many people will die as we struggle for economic freedom.” He called on other miners, especially in the surrounding area, to join in solidarity strikes (warning that they could be the next to die if they don’t) and told the Marikana group that their calls for wage increases from around R5 000 a month to R12 500, were fully legitimate.

    And although he did not endorse new union, the Association of Mineworkers and Construction Union (Amcu), in so many words, he had nothing but scorn for the NUM.

    “NUM is a former union… From a militant union… We want leaders who will not sell you out,” Malema said.

    Anti-Zuma politicking

    Police, Malema said, should not have had automatic weapons on the scene of the protest on Thursday afternoon, when 34 people were killed.

    And even if strikers did fire at the police first, the police should not have fired back.

    He dismissed outright any suggestion that the police had acted in self-defence and had reason to fear the armed workers, saying the Inkatha Freedom Party (IFP) had marched with similar weapons for years without getting shot.

    But it was to Jacob Zuma that he returned time and time again. Zuma, Malema said, had told police to use maximum force. “From today, when asked ‘who is your president’, you must say ‘I don’t have a president’,” he urged the group.”

    http://mg.co.za/article/2012-08-18-malema-at-marikana-many-will-die/

  • Pierre De Vos

    Anonymouse, you are conflating requirement that the state must prove the accused had the intention in the form of dolus eventualis, which is seperate from some of the other requirements of common purpose, namely that the state has to prove that the miners had the intention to make common cause with police who shot at them, and that they had acted in a way to demonstrate that they had the intention to make common cause with the police to shoot their comrades. Never going to happen.

    Second, merely relying on dolus eventualis is not going to work. The state would have to prove beyond reasonable doubt that the actions of every single of the 276 miners caused the killing, as causality is requirement for proving the crime. In each case, the state will have to show that but for the actions of a specific accused, the police would not have shot and killed 34 people, something they will never be able to do. Any court that rules otherwise will be overturned by SCA or CC.

  • spoiler

    I agree comletely with the views expressed in this piece. Its an utterly bizarre tactic and doomed to fail horribly. I don’t even think the erstwhile regime pushed the common purpose concept this far, or would have dared. A very sad indictment of the NPA.

  • http://www.ozoneblue.co.za/ ozoneblue

    “Many people will die as we struggle for economic freedom.”

    Julius Malema

    “We” – I assume must be FYL and the AAG?

    http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71654?oid=322431&sn=Detail&pid=71616

  • Gwebecimele
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  • Maggs Naidu – (maggsnaidu@hotmail.com)

    Political interference????

    “I have requested the acting National Director of Public Prosecutions (NDPP), advocate Nomgcobo Jiba to furnish me with a report explaining the rationale behind such a decision,” Radebe said in a statement.

    “Section 179 (6) of the Constitution reads: ‘The Cabinet minister responsible for the administration of justice must exercise final responsibility over the prosecuting authority’.”

    http://www.timeslive.co.za/politics/2012/08/31/radebe-asks-npa-to-explain-miners-murder-charges

  • http://www.ozoneblue.co.za/ ozoneblue

    Maggs Naidu – (maggsnaidu@hotmail.com)
    August 31, 2012 at 13:06 pm

    “Political interference????”

    Well spotted. I guess Cde Radebe forgot to read the script LOL:

    “most probably in an effort to protect the police and/or politicians like Jacob Zuma and Nathi Mthethwa.”

    “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.”

    You see the evil patriarchal, sexist and corrupt Stalinist Zuma was going to abuse the NPA to suppress legitimate political descent but his dumb cabinet minister responsible for the administration of justice is just too incompetent to understand this.

  • http://www.ozoneblue.co.za/ ozoneblue

    btw maggs. excuse for asking this.

    When the noble Mr. Malema said the other day at Marikana “Many people will die as we struggle for economic freedom.”

    Do you think he may have meant you or PdV will die as as well?

  • Clare Hendry

    Is it possible that the state does not want to win the case?

  • Anonymouse

    Pierre De Vos

    August 31, 2012 at 12:20 pm

    I don’t think I am connflating anything here Prof. Common purpose involving murder, requires a common intent of the group to cause the death, and intent in the form of dolus eventualis is good enough intent in this regard – the element of intent cannot be separated from common purpose in crimes where intention is required (and negligence cannot be separated from common neglect in crimes where negligence is required). In other words, if the entire group foresees (which I think can easily be proven if the evidence put forward by the police is correct) that, not only police officers might die as a result of their act of public violence, but also some of them, then every member of the group can be held guilty of murder in relation to everyone killed (even if no police were killed), provided that they unlawfully committed an act of public violence. The identity of the deceased need not be foreseen before anyone can be convicted of murder. Viz again the examples of botched armed robberies that I have referred to above. The same can be said about innocent bystanders being killed during a shootout between criminals and the police.

  • Jacobus

    De Vos says: ” First I do not believe dolus eventualis could be stretched this far, otherwise every person who have ever provoked somebody else would be capable of being convicted of the actions of the person who had been provoked into acting in a criminal way. ”
    If the miners – after the police arrived and the miners were told to put their weapons down and leave the hill – then lined up with weapons to receive muti from a sangoma (and paid the sangoma) that will make the bullets of the police turn to water. If the miners did that and if they soon after that moved towards the police line in a crouching run and fired shots at the police. If that can be shown to have happened, what the, Pierre?

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  • Jama ka Sijadu

    RSA under Zuma is getting more bizarre by the day.

  • Gwebecimele

    At this rate, those who get involved in casual “stick fighting” in the rural areas during traditional celebrations can be easily arrested and charged with murder if one of them die.

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  • Niel

    Anonymouse says:
    August 31, 2012 at 14:14 pm

    “provided that they unlawfully committed an act of public violence.” If you are relying on this to prove the unlawfulness of the killing then you would be relying on the versari doctrine which no longer has application.

  • Brett Nortje

    Anonymouse says:
    August 31, 2012 at 11:49 am

    Thanks, Dr Mouse!

    Been chewing my nails for 2 days hoping you’d post.

    Now, where is the ZooKeeper?

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  • sirjay jonson

    Mikhail Dworkin Fassbinder
    August 31, 2012 at 10:41 am

    Absolutely Fass, lack of any moral transformation of our black elite.

  • sirjay jonson

    He Fass: if blacks hate whites we can clearly see that as racism. What is it when blacks hate blacks?

  • vuyani ngalwana

    On the face of it, the decision seems indefensible. When I woke to the news yesterday I thought it was a joke until a news bulletin confirmed it. I criticised it strongly and in the social media platform, blaming govt and expressing a wish I get a brief to sue govt delictually for a record damages claim on behalf of the workers and their families. Well, as “luck” would have it, SAPS briefed me first. As a member of the Bar I cannot decline the brief, however galled I may be by the police killing of workers striking for a living wage. It’s called the cab rank rule. Now i shall be representing “the other side” in the commission of enquiry. Eish, the difficult life of an advocate. And you thought practice of law was easy. Ethical considerations complicate matters – and for good reasons too. Where would we be without them?

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  • Brett Nortje

    That’s great, Vuyani!

    Does that mean PAIA requests can be made to you for copies of the video in which senior members of the SAPS tell ETV/Enuus reporters the day before the massacre that they were going to use “maximum force” to break the strike?

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  • Maggs Naidu – (maggsnaidu@hotmail.com)

    Another view!

    There is nothing outdated or defunct about common purpose. It cannot be dismissed as an apartheid law. The principles are in place and have been applied. There is nothing strange or outrageous about this decision – it is defensible – at least, in principle.

    http://mg.co.za/article/2012-08-31-marikana-common-purpose-not-outdated-or-defunct

  • http://www.ozoneblue.co.za ozoneblue

    Obviosly this is a much publishiised event.

  • http://www.ozoneblue.co.za ozoneblue

    For once the trolls outpowered by syndicated links.

  • Mikhail Dworkin Fassbinder

    @ Anonymouse

    By your logic, every WHITIST born after 14 Aug 1948 can be charged with the COMMON PURPOSE of exploiting the murderously deprecated wages (as little as R785 per annum), of deep ditch drill operators to finance their platinum Christmas tree ornaments!

    Pierre, Maggs, OzoneBoy, JR, Gwebe, Sirjay, Brett, WDYS?

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  • John Roberts

    @ ozoneblue

    Grow a fucking brain will you.

  • http://www.ozoneblue.co.za/ ozoneblue

    John Roberts
    August 31, 2012 at 23:14 pm

    I have brain John.

    And I appreciate ex-Stellenbosh broederbond products when I encounter them.

  • http://www.ozoneblue.co.za/ ozoneblue

    The biggest pr0blem the new world has to face is how the lonely, bullied PdV (cause he a self-confessed faggot) would get into a classy CT nightclub.

    wtf – all the rage

  • Maggs Naidu – (maggsnaidu@hotmail.com)

    John Roberts
    August 31, 2012 at 23:14 pm

    Hey JR,

    OzoneBoy can’t grow a brain.

    Have you ever seen such a thing as a turd with a brain????

  • http://www.ozoneblue.co.za/ ozoneblue

    Maggs Naidu – (maggsnaidu@hotmail.com)
    September 1, 2012 at 7:56 am

    Listen my dear bunny chow friend. Answer my question instead of attacking my login.

    When the noble Mr. Malema said the other day at Marikana “Many people will die as we struggle for economic freedom.”

    Who is going to do the dying for the FOTYL and the AAG. Do you think Mr. Malema may have meant you and PdV will have to die as as well, or are we again “taking this out of context”?

    How long will the NPA have to ponder and investigate and how many commissions will it take to find out who is behind the Marikana massacre? When the answer is right up there, literally MOERing them in the face.

  • http://www.ozoneblue.co.za/ ozoneblue

    “MANY PEOPLE WILL DIE AS WE STRUGGLE FOR ECONOMIC FREEDOM.”

    South Africans of all races, colours, religions and genders and sexual orientations.

    Know your real enemy.

    PLEASE WAKE THE FUCK UP.

  • Anonymouse

    Mikhail Dworkin Fassbinder

    August 31, 2012 at 21:40 pm

    Not every ‘WHITIST’ – but I have long maintained that apartheid is a species of the crime against humanity (an international crime), which was always part of South African law (I am a Dugard supporter, not a Booysen supporter) and, due to section 35(3)(l) of the Constitution, those who perpetrated (or participated in the perpetration of) apartheid, and who are still alive, can be prosecuted ala Nuremberg.

  • Maggs Naidu – (maggsnaidu@hotmail.com)

    Anonymouse
    September 1, 2012 at 8:43 am

    Awwww Doc Mouse,

    “those who perpetrated (or participated in the perpetration of) apartheid, and who are still alive, can be prosecuted ala Nuremberg.”

    Nobody who’s alive today supported apartheid.

    Not even Brett – he just pretended to do so while wooing some former minister’s daughter.

    Not even Vivian Reddy!

  • http://www.ozoneblue.co.za/ ozoneblue

    Maggs Naidu – (maggsnaidu@hotmail.com)
    September 1, 2012 at 8:51 am

    “Nobody who’s alive today supported apartheid.”

    Guilt trips and emotional manipulation is simply not going to cut ice nomore.

    Fucxk all the excuses and the endless references to apartheid,blackness, the whiteness, blah, blah, blah, etc and so on and so forth.

    The ANC wanted to govern South Africa and now the ball is in their court boet.

  • Anonymouse

    I still maintain my viewpoint advocated above. I will use Prof De Vos’ own remarks as basis:

    “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.”

    Fact is, the statement is true. As I have indicatted above, it has already happened in the past that armed robbers confronted by armed police, and who started shooting at the police in a way that justified private defence, lost some of their own numbers as a result of the shoot-out; or, even innocent bystanders died in the cross-fire (Americans would call that ‘collateral damage’, so I believe). In such cases, some of the robbers who were apprehended have successfully been charged with murder (and it even passed legal muster in the SCA). Now I must admit, when I first studied criminal law as a subject at University, 1976 (or, 36 years ago), the doctrine of common purpose was not yet known. But the law developed so that one could become convicted by the invocation of that doctrine and, as pointed out by Prof De Vos, the doctrine even passed constitutional muster in Thebus (which was not about murder – for which it has been developed in the first place). The doctrine (which, by the way, cannot be divorced from the ellements of a crime that need to be proven for purposes of a conviction – like intent, including dolus eventualis – all the ellements still have to be proven before a conviction can ensue, regardless of whether reliance is placed on the common purpose doctrine) has served South Agfrican criminal law well, even post 1994. It is therefore not a regrettable product of apartheid that is now being invoked by the NPA.

    Furthermore, I don’t see any point in the Riotous Assemblies Act quoted above being criticised as an untenable remnant of apartheid in this case. This case has got nothing to do with ‘conspiracy to commit a crime’, but with the doctrine of common purpose (which can be formed with or without a prior conspiracy to commit a crime). In any event, the crime of ‘conspiracy to commit a crime’ still has a role to play in the criminal law, even post-apartheid – see the Wouter Basson judgment in the CC.

    “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.”

    I have already dealt with this wrong perception on the legal position. It is not a question of the striking miners having ‘provoked’ the police, or having incited them to shoot at them so that they can commit suicide. People going to war (legally or not) do not intend to commit suicide in the direct sense of the word – in fact they hope that they would not die (as is also the case of robbbers who take muti beforehand to shield them from police bullets), but each of them knows (subjectively foresees) that any one oof them could die, just like some of their adversaries could die. Now, if the war is waged illegally and, some of them, some of the adversaries, or innocent bystenders die in the cross-fire – then I can see no problem with holding them accountable for the murder of each of those who died. These guys (the miners) have armed themselves during an illegal strike – some of them (hopefully it will still be clarified who) have already committed assault and murder, and it was clear that they will continue committing serious violent crimes – in fact, by so gathering, armed, they might already have been guilty of public violence in the light of the history. The police had every right (NAY, duty to protect society and law and order!) to confront them and order them to lay down their arms and to resort to legal ways to sort out their issues with the mine. According to footage shown on Al Jazeera, the armed mob stormed the police, also fired shots at them in defiance of tear gas and rubber bullets, and the police (according to that footage) had no choice but to return fire with sharp ammo. This is therefore not an issue of provocation, but an issue of an ulawful attack being warded off by the police. Whether the police have acted beyond the legal scope (or exceeded the boundaries) of private defence is an issue that will have to be decided by a court (or judicial enquiry), but the initial reaction by the police can definitely not be faulted – altough oposing political parties and bleeding heart liberals will disagree – police must be cannon fodder, never mind what kind of violence they may meet in the course of their constitutional duty to ensure the safety of society – Anathema sit! Anathema sit!

    “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.”

    As indicated above, this was not provocation – it was an attack in an all-out war, illegally called by the striking miners, and they all have to carry the consequences.

  • Maggs Naidu – (maggsnaidu@hotmail.com)

    Johannesburg – Dagbreek, a men’s hostel at the University of Stellenbosch apologised for an attack on blacks and coloureds 73 years ago, according to a report on Saturday.

    The apology was for the “Battle of Andringa Street” in July 1939 when students from the hostel attacked black and coloured people and looted their homes, Beeld reported.

    http://www.omg-facts.com/Other/There-are-more-possible-games-of-chess-t/52781?fromTN

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  • Brett Nortje

    Dr Mouse, many states in the US have similar legislation to the common purpose doctrine… Also, the UK.

    What do you think of charging the cops – who promised to use ‘maximum force’ to break the strike the next day – with conspiracy?

  • Lisbeth

    Anonymouse
    September 1, 2012 at 11:28 am

    My thoughts exactly. Thanks, Mouse.

  • Maggs Naidu – (maggsnaidu@hotmail.com)

    Lisbeth
    September 1, 2012 at 15:36 pm

    Hey Lisbeth,

    “My thoughts exactly. Thanks, Mouse.”

    So Doc Mouse plagiarised?

    Anyway – here’s what the NPA has to say :

    It is important to acknowledge that the Marikana incident was not isolated to one day (16 August), to which much media attention is given, but it developed over a number of days during which other people were brutally killed, including two policemen who were robbed of official firearms, one of which was later recovered from the miners.

    The NPA wishes to emphasise that this matter has been dealt with at the highest level. Advocate Johan Smit, the Director of Public Prosecution (DPP) for North West and head of the NPA in the province, has personally approved the possible charges based on evidence available.

    He is one of the most experienced and longest serving DPPs in South Africa, and personally prosecuted the landmark case of the murder of Constable Francis Rasuge where a murder conviction was obtained without a body being found.

    The national head of the prosecutions service in the NPA has also been briefed on the matter, and is satisfied that the approach is sound legally.

    http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71654?oid=323316&sn=Detail&pid=71616

  • http://www.ozoneblue.co.za/ ozoneblue

    Brett Nortje
    September 1, 2012 at 15:31 pm

    “What do you think of charging the cops – who promised to use ‘maximum force’ to break the strike the next day – with conspiracy?”

    What do you think of charging Mr. Malema and his new militant and counter revolutionary party the FOTYL with incitation to public violence and conspiracy to commit treason. Surely there can be absolutely no excuse for resorting to violence to achieve political aims in a democratic country?

  • http://www.ozoneblue.co.za/ ozoneblue

    More of the same race baiting to the extreme. Somehow it is also the fault of “whites” that “black persons” are corrupt and killing their own people.

    “Malema told the Grootvlei miners they needed to stand up for their rights. “We thought it would be nice to be a black person after 1994, but it’s got worse than apartheid. Our own people are killing us,” he said.

    Malema also said miners countrywide should make all mines “ungovernable” until the “whites listen”.

    “They must pay a decent wage – R12 500 a month as a basic wage for all. This is your time. This country is what it is today because of miners like you. You must claim your rightful place in South Africa,” he said.

    Malema called on miners to continue their strike and prevent work from being carried out at the mine. “The liquidators need to ensure workers must be paid first. We must stand united … because if we don’t the whites will throw away the contract workers like toilet paper.””

    http://mg.co.za/article/2012-08-31-00-malemas-political-gold-mine

  • Mikhail Dworkin Fassbinder

    I once had great respect for Mr Malema, when he was young, and had a lot to learn. But now he says things are “worse than apartheid.” This I call sheer INTELLECTUAL LAZINESS.

    Thank to heavens that, as Maggs forecast last year, Mr Malema is now a “spent force.”

  • Maggs Naidu – (maggsnaidu@hotmail.com)

    Mikhail Dworkin Fassbinder
    September 1, 2012 at 17:00 pm

    Dworky,

    I’m re-thinking that in the light of the latest developments.

    I was impressed that Malema was able to address the crowd at Lonmin.

    And also Grootvlei.

    He now seems to be an unspent, spent force – WDYS?

    p.s. but I’m not giving back the Streetwise Two.

    I’d offer you left-overs, but I ate it – come to think of it, you can have left-overs. :P

  • Brett Nortje

    How to steal an election: RNC betrays the Republican Revolution

    http://youtu.be/B39W91O-rUg

  • wessel pieters

    I saw on tv miners armed with pangas & knopkieries & spears by their hundreds rushing to attach the SAPS. They had the right to defend themselves or would the murder of SAPS members be consistent with democracy?
    It was a war. SAPS had the human right to defend themselves and they did. Two died in the war.
    Commom purpose has nothing to do with Apartheid. Even if de Vos makes such a case, he should not display his lack of legal understanding in public as a proffessor. Common purpose is a legal principle that gets criminals removed from the public and has been in use in many countries since 1840.
    And as Malema said Bantu education and miners wages were better under Apartheid. I hope he is wrong…otherwise what or who will Africa blame for its failure to create wealth and permit corruption. The culture comes from the Top which includes the ANC NEC & the trade union alliance. Vavi is as much part of the problem as the doctrine from the communists in government that never stood up to be elected on their own merits. A system that permits such distortions is not a democracy; it is a new system of one party dominance and superficial adherence to a republican constitution with several monarchies Apartheid style! Now blame Cyril and Meyer!

  • Anonymouse

    Brett Nortje

    September 1, 2012 at 15:31 pm

    Dr Mouse, many states in the US have similar legislation to the common purpose doctrine… Also, the UK.

    Touche!

    Anyway – if one thinks of charging the cops, one should think of charging the previous Commissioner of SAPS – “Shoot to kill!”

    Wessel – you’re right on!

  • wessel pieters

    Anonomouse – The strike was illegal in the legal definition. Why was it permitted to continue? It is provocation and the public good demands action.
    The “poverty” of the miners? I have cases of Blacks getting near R20 000 per month that prefers to live in a schack at R600 per month within an Black community rather than in a conventional mixed township. The money is sent home to support the extended family. No it is time to blame ANC\Angie & Blade and their predecessors includinf Bengu and Asmal.

    On the basis of the responses in this blog, I have the feeling there is little common legal or cultural understand among the groups in SA. John Vorster once said: the SA situation is so complex there is no solution for a democratic dispensation. He did not offer a solution, neither did any political grouping to date. South Africans have not come to grips with the reality as it presents itself to us in 1922, 1962 & 2012.

  • RjF

    Q4 : How to arrest the slide into anarchy ?

    a) by prosecuting the perpetrators
    b) by holding an inquiry into crowd control methods
    c) by playing political football
    d) by exonerating those responsible

    (hint : only one correct answer)

  • Mikhail Dworkin Fassbinder

    @ rjf

    “how do you arrest the slide into anarchy.”

    One word RJF: TRANSFORMATION!

  • HP

    Isn’t Marikana more reminiscent of the events surrounding the miner’s strike in the Witwatersrand region, known as the Rand Revolt of 1922?

    Then, I understand, the striking and armed miners were confronted by 20 000 troops, machine guns, artillery and war planes.
    The strike was crushed, 200 were killed, thousands of prisoners were taken, weeded out for court martial and 18 of the miners were given death sentences of which four were taken to the gallows and 14 had their death sentences commuted.

    What would have been the legal argument then?

    (Reference: Wikipedia and SAHO)

  • http://www.ozoneblue.co.za/ ozoneblue

    HP
    September 2, 2012 at 7:03 am

    You are totally right HP. What happened in Marikana is very similar to what happened in 1922, when militant Afrikaner workers destroyed organised labour and prepared the political terrain for the Nationalist take over. FOTYL very likely are trying to follow this same blueprint because I can assure you they are capitalists who all have a stake in the mining industry too.

    I have pointed out many times on this blog and elsewhere that the ideological tension between socialism and nationalism that divides the ANC is tearing it apart. It will continue to do so, the nationalists will win and South Africa will be catapulted into a bloody civil war unless we can build a viable nonracial left wing that doesn’t try to catch a free ride on the back of the ANC.

    Also, please note that FOTYL are ideologically aligned with the AAG (Affirmative Action Group) who are supportive of ZANU-PF.

    The motto is “indigenization”.

    “Sources said the Mandiwanzira executive fell out of favor as it was blocking members of President Robert Mugabe’s ZANU-PF party from using the organization as a vehicle to take control of foreign-owned mining firms under the guise of indigenization.

    They said the Mandiwanzira group had teamed up with Mines Minister Obert Mpofu to block the use of AAG for mining company takeovers. They said this angered Chiyangwa, who is said to have been seeking a stake in some targeted firms in the sector.

    Chiyangwa told VOA reporter Blessing Zulu the firing of the Mandiwanzira executive had nothing to do his efforts to secure mining company stakes under the Indigenization and Economic Empowerment Act which says foreign-owned companies must place a controlling 51 percent stake in the hands of black Zimbabwean investors”

  • http://www.ozoneblue.co.za/ ozoneblue
  • http://www.ozoneblue.co.za/ ozoneblue

    More of kill the Boer.

    “Mineworkers shouted in agreement when Malema accused other leaders, including the National Union of Mineworkers, of being paid “protection fees” by white business owners.

    “These [business] people are very rich. They buy people and give them money. Boers killed the NUM. They bought them with shares. The Boers have hijacked the revolution through the [ANC] leadership.

    “The revolution is leaderless. If there was leadership in this country it can’t take four years [to pay mineworkers],” said Malema.

    He told workers not to allow white business owners to divide them.

    “You must never retreat. You must continue to fight,” said Malema, adding that the mineworkers’ four year struggle against Aurora was nothing compared to the 27 years former president Nelson Mandela spent on Robben Island.”

    http://www.news24.com/SouthAfrica/News/ANC-sold-out-to-Boer-mine-owners-Malema-20120830-2

  • Mikhail Dworkin Fassbinder

    It feels as if it were aeons ago that we expended thousands of words on this blog on topics like OVS students “initiating” cleaning staff by make them drink simulated urine. What a tragedy that events like Marikana have distracted us from what remains the only real issue facing South Africa: the need to TRANSFORM the minds of WHITISTS!

    Thanks.

  • Fa

    The debate between Anonymouse and Prof de Vos is very good and just illustrates how difficult this part of the law is. I guess one can stretch both sides of the argument very far, obviously depending on which side of the fence you sit.

    This is a very good example of why it is so crucially important that independant sanity must eventually prevail through an INDEPENDANT judiciary. Politics is by defenition one sided and, if influenced by them, the outcome will be in their best interest.

    A last response by Pierre on the note of Anonymous would be welcome.

  • Brett Nortje

    ozoneblue says:
    September 2, 2012 at 8:05 am

    What is wrong with socialists aspiring to leave their children US$8bn like the Zim Vice President’s husband?

    P.s. I think the massacre might be more like the massacre of the Israelites at Bulhoek.

  • Mikhail Dworkin Fassbinder

    @ Brett

    “I think the massacre might be more like the massacre of the Israelites at Bulhoek.”

    Brett is wrong. It is more like the massacre of the Irish at Blenheim by Cromwell’s mercenary invaders.

    Thanks.

  • http://www.ozoneblue.co.za/ ozoneblue

    Mikhail Dworkin Fassbinder
    September 2, 2012 at 8:38 am

    You should realise according to Mr. Malema I have nothing to fear, my only concern is that I may accidentally gets speared to death by virtue of the fact that I may *look like a “white”* when in fact had those sophisticated and enlightened peace loving Amapondo warriors cared to look inside my brain (perhaps after smashing open the skull with a knopkierrie?) they would be surprised to find I actually have a BLACKISH transformed mind and have stolen nothing.

    http://www.iol.co.za/business/malema-on-whites-and-nationalisation-1.1346369

    “But the point is, if you have nothing, as an ordinary white person… why should you be worried, you have nothing, you have not stolen from anybody, you just have your house, you don’t have anybody’s land, you don’t have all the monies, we are not talking about you. We are speaking to the Ruperts, the Oppenheimers; we are speaking to all those who are owning the means of production.

    White working class belongs to our struggle. They must come and join us to fight for equal distribution of wealth in this country, and when we say equal distribution of wealth we don’t refer only to blacks – we refer to the white working class who has got nothing.”

  • Brett Nortje

    The tradition in South African law enforcement is Strafkommandos.

    Your cattle get stolen or your mine is threatened and the call is ‘Opsaal, Boere!’.

    Along come the ineptocrats and people like De Vos burden them with administering a massively expensive disarmament scheme that occupies a substantial part of the overburdened ‘service’ and sends a message right down the ranks right from the top that this ‘rule of law’? ‘Constitution’? NudgenudgeWinkwink.

    Speaking of gungrabbing scum here is a really interesting article by David Bruce:
    http://www.csvr.org.za/docs/policing/operationofthecriminal.pdf
    This malaise on the NorthWest mines goes way back. I see now why my buddy Dewald emigrated rather than leave his wife and little girls alone on the mine when he has a nightshift. Ag wat. South Africa has plenty of engineers.

    In fact, the whole article is a good read. Cronyism is a silly dwis but this is some of the best work I’ve seen from him:
    http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=323104&sn=Detail&pid=71616

  • Brett Nortje

    Lets start by equally distributing Juliass’ R52m?

  • http://www.ozoneblue.co.za/ ozoneblue

    So I reckon a good idea would be a T-shirt confirming the apparent contradiction between my financial status and the colour of my skin –

    “Just and ORDINARY white person
    I’M NOT OPPENHEIMER/RUPERT ffs”

    Hoping that education in Amapondo land is not quite that shite and those Xhosa warriors can actually read.

  • Gwebecimele

    Can anyone show us evidence of the ineffectiveness of rubber bullets and water canons anywhere in the world, I suspect that the marikana incident will be the first.

  • http://www.ozoneblue.co.za/ ozoneblue

    Gwebecimele
    September 2, 2012 at 10:06 am

    I think everybody realises by now that the police went there to put down that strike using whatever means necessary. The question is at what level government authorised this. The buck should stop at the Commissioner of Police unless she can prove that she was acting on instructions from the top. She has however already made it clear in the media that she accepts full responsibility.

    http://www.news24.com/SouthAfrica/News/Phiyega-takes-responsibility-for-shooting-20120817

    “Asked who gave the police the order to shoot, she replied: “As commissioner, I gave police the responsibility to execute the task they needed to do.”

  • RjF

    ” Listen my dear bunny chow friend

    the need to TRANSFORM the minds of WHITISTS!

    I’d offer you left-overs, but I ate it – come to think of it, you can have left-overs.

    The ANC wanted to govern South Africa and now the ball is in their court boet.

    self-confessed faggot

    by the police to clear up murders without proper investigations, resulting in the conviction

    ……………

    ………………. ”

    anyone listening to themselves ?

  • http://www.ozoneblue.co.za/ ozoneblue

    RjF
    September 2, 2012 at 10:43 am

    “self-confessed faggot”

    I’m sure he can take it like a man. This is how he condescendingly referred to normal people like me.

    “the nuclear family – one man as the head of the household, in a monogamous marriage with one woman, together raising two or three children (and perhaps a dog)”

    My life is a joke and the fact that I’m a responsible “patriarch” aught to be ridiculed. My kids can be valued on the same level as a dog.

  • Gwebecimele

    apparently an address or shack will determine if the arrested miners will be released

  • RjF

    ” I have killed a man because he disagreed with me.
    Anything more futile it is hard to imagine in cold blood, for by killing him I have proved nothing. He still holds his view. I know it because I have spoken to him since, and he still laughs at me, though softly, compassionately, not as he laughed on that night when the absurdity happened. ” (ralph stock)

  • etienne marais
  • Paul Kearney

    Besides Sharpeville, the “battle” of Marikana seems to me similar to the “battle” of Blood River where well-armed Boers “defeated” a mighty host of Zulus with God’s (and “ou Griekjie’s”) help.

    Only difference is that SAPS where ensconced in a laager of barbed wire and lightly armoured vehicles. No ou Grietjie (a cannon) but automatic weapons vs one or two pistols, panga’s and assegai’s seemed to prevail and do the same macabre job.

  • Maggs Naidu – (maggsnaidu@hotmail.com)

    Fa
    September 2, 2012 at 8:45 am

    “A last response by Pierre on the note of Anonymous would be welcome.”

    The last word it seems, Fa, has been had by the NPA.

    “The murder charges against the current 270 suspects, which was provisional anyway, will be formally withdrawn provisionally in court on their next court appearance.”

    http://www.timeslive.co.za/local/2012/09/02/marikana-murder-charges-dropped

  • Brett Nortje

    3 Amigos verse 2….

    Or, how to make sure all the witnesses disappear?

  • http://www.ozoneblue.co.za/ ozoneblue

    Maggs Naidu – (maggsnaidu@hotmail.com)
    September 2, 2012 at 20:19 pm

    Good news. It does appear as if the NPA have some bigger fish to fry.

    “”We filed a complaint with the SA Police Service yesterday and a ‘crimes against the state’ docket was opened,” Muhammed Vawda, secretary of Spoc, said today.

    “A case number was issued and it will go to the National Director of Public Prosecutions for a decision.”

    Blair and former US president George W Bush were found guilty in absentia of crimes against humanity by the Kuala Lumpur War Crimes Tribunal in November last year.

    They were also found guilty of genocide for their roles in the Iraq War.The tribunal was presided over by five judges.

    The court acknowledged that the verdict was non-enforceable, but the findings were reported to the International Criminal Court in The Hague.”

    http://www.timeslive.co.za/local/2012/08/29/arrest-warrant-sought-for-tony-blair

  • http://www.ozoneblue.co.za/ ozoneblue

    Seeing that Mr. Malema is again blaming “the boers” for Lonmin and even Aurora.

    Latest update from Genocide watch.

    “There is thus strong circumstantial evidence of government support for the campaign of forced displacement and atrocities against White farmers and their families. There is direct evidence of SA government incitement to genocide.

    Forced displacement from their farms has inflicted on the Afrikaner ethnic group conditions of life calculated to bring about its complete or partial physical destruction, an act of genocide also prohibited by the Genocide Convention.

    High-ranking ANC government officials who continuously refer to Whites as “settlers” and “colonialists of a special type” are using racial epithets in a campaign of state-sponsored dehumanization of the White population as a whole. They sanction gang-organized hate crimes against Whites, with the goal of terrorizing Whites through fear of genocidal annihilation.

    What is dehumanization?

    The process of dehumanization has the effect of numbing and decommissioning the moral sentiments of the perpetrator group. Polarization creates the “us vs. them” mentality, in SA the “Indigenous Black People” group versus the “White Settler Colonialist” group.

    ANC leaders publicly incite followers using racial epithets. By dehumanizing the White victim group, members of the perpetrator group exclude the victim group from their circle of moral obligation not to kill its members. Dehumanization is the systematic, organized strategy of leaders to remove the inherent natural human restraints of people not to murder, rape, or torture other human beings. Taking the life of a dehumanized person becomes of no greater consequence than crushing an insect, slaughtering an animal, or killing a pest.

    The ANC denies its genocidal intentions. But the South African Communist Party is more open about its plan to drive Whites out of South Africa. Gugile Nkwinti, South Africa’s Minister of Rural Development and Land Reform has declared that all “colonial struggles are about two things: ‘repossession of the land and the centrality of the indigenous population.’” Mister Nkwinti is confirming the goals of the South African Communist Party’s New Democratic Revolution (NDR) and stating that the colonial struggle is not yet over in post-1994 South Africa. He is saying that Whites are unwelcome “settler colonialists” with no role to play in South Africa’s future.”

    http://www.genocidewatch.org/southafrica.html

  • Brett Nortje

    “Over 3000 white farmers have been murdered since 1994. The South African police have not made investigation and prosecution of these farm murders a priority, dismissing them as crimes by common criminals. The government has disbanded the commando units of white farmers that once protected their farms, and has passed laws to confiscate the farmers’ weapons. Disarmament of a targeted group is one of the surest early warning signs of future genocidal killings.”

    Someone should inform Stanton that some of the same useful idiots involved in the disarmament drive are trying to have Juliass’ hate speech conviction overturned….

  • RjF

    Seems to me people are engaging in an exercise in futility.
    It’s like the “pro-life” vs “pro-choice” debate. Both perspectives being equally valid and justifiable depending on one’s departure point.
    How is it that we as a species arrived at such a juncture ? Where to have completely polar views is to be equally valid.
    How did this come about; what’s the underlying process ? Like the “pro-life” / “pro-choice” debate, the rest is just noise.
    (“noise” – variation around a trend)
    Let us begin with compassion. Compassion both for ourselves and for others.

    I’m not saying we should shut-the-f#%k-up ………………….

  • S J Schneider

    I was surprised to find no meniton of ‘felony murder’, for decades the most frequent (first degree) murder conviction in the USA. One staggering case (Bell v. Illinois) sent the surviving burglar of two fleeing (unarmed) burglars to execution, for the ‘felony murder’ of his chum, shot dead by police while running away. This doctrine eases prosecution wonderfully; one need not even show ‘common cause’.

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  • Lionel

    Paul Ngobeni has attacked your argument in his Blog, http://constitutionalcrossroads.blogspot.com/2012/09/open-letter-to-ndpp-jiba-politics-of_2595.html – he addresses the reaction to the Marikana events by the Justice Minister and ANC senior officials, the attack on the NDPP Jiba by the mostly white academics and the much reviled common purpose doctrine.

  • http://www.ozoneblue.co.za/ ozoneblue

    ” Remarkably, an outfit calling itself Council for the Advancement of the South African Constitution (CASAC) has issued a statement on 31 August 2012, condemning “the National Prosecuting Authority (NPA) for acting in a partisan, perverse and irrational manner in preferring charges of murder against the 259 people arrested at Marikana for the deaths of the 34 people killed in the Marikana Massacre on 16 August 2012.” In a perverse display of crocodile tears, CASAC assiduously avoids mentioning the police officers and security guards murdered by some of the miners and declares itself to be “shocked that the NPA has seen fit to make use of the notorious legal concept of “common purpose” to lay these charges and thereby seek to lay the blame for the massacre at the hands of the protesting workers.” Without being inconvenienced by any sense of shame for advocating naked political interference with the independence of the NPA, CASAC called on “President Zuma to suspend the Acting National Director of Public Prosecutions, Adv Nomgcobo Jiba in terms of section 12 (6) (a)(i) of the National Prosecuting Authority Act, No 32 of 1998 on the grounds of misconduct.” But CASAC is not alone in its misguided and politically motivated attacks on the NPA as shown below.

    A. The Minister’s Demand For Explanation.”

    Ja-nee. But don’t even bother to hope you will ever get a coherent logical explanation from the author of this blog. Because surely have we never witnessed our supposedly independent NPA so spectacularly capitulate in the face of public pressure and popular opinion before.

  • http://www.ozoneblue.co.za/ ozoneblue

    LOL.

    “Almost as if to underscore the bankruptcy of his own approach, De Vos condemns the NPA’s reliance on the doctrine of common purpose which he dubs “an outdated apartheid law [which] has been hauled out and dusted off to press [the] charges”. Further, he claims that it “was discredited during the time of apartheid”; and that the charges are “bizarre and shocking”, without merit or any hope of success and must have been brought for other nefarious purposes. De Vos’s approach reflects a sad reality of modern day pseudo-academics who are always in a gadarene rush to provide media sound-bites on very complex legal issues without minimal scholarly research on the subject they are called to comment about. I have already addressed the hypocrisy of the so-called analysts who pay lip service to prosecutorial independence ; they only speak out against the executive’s attempts to interfere with prosecutorial independence when it suits their political agenda. ”

    *pseudo-academics* what else would you expect from the Broederbond sponsored University of Stellenbosch?

  • Mikhail Dworkin Fassbinder

    @ Ozoneboy

    “what else would you expect from the Broederbond sponsored University of Stellenbosch”

    Hmmmmm, this seems a very well thought out argument. Thanks for sharing it with us!

  • Maggs Naidu – (maggsnaidu@hotmail.com)

    Mikhail Dworkin Fassbinder
    September 10, 2012 at 12:19 pm

    Dworky,

    “Hmmmmm, this seems a very well thought out argument. Thanks for sharing it with us!”

    Shhhhhh!

    OzoneBoy is giving us deep insights from a criminal mind.

    Don’t share yet that Ngobeni is a fugitive from justice.

  • Brett Nortje

    ozoneblue says:
    September 10, 2012 at 12:12 pm

    Jaco summed it up beautifully in his blog on ‘thoughtlessness’.

    I have myself been forced to remonstrate with Devos about his unscholarly and illconsidered rushes into print.

    Not only about gunownership.
    FICA, RICA – and the subject most notable by its being oblivious to the Devos mind – the payment of compensation for every piece of land the NP took during forced removals.

    Mythbusting about THAT would have gone a long way to preventing dangerous polarisation as the ANC creates existential myths to try and cover up the fact that the emperor has no clothes?

    Consider and compare the scholarly article by the historian Hermann Giliomee on Bantu Education, posted on Politicsweb? That is the way to bring perspective to those captivated by polarising myths….

  • http://www.ozoneblue.co.za/ ozoneblue

    Maggs Naidu – (maggsnaidu@hotmail.com)
    September 10, 2012 at 12:22 pm

    Maggs – I know exactly what I’m gonna get you for Diwali and it ain’t gonna be another bunny chow !

    The Inner Circle

    http://www.namibiana.de/namibia-information/literaturauszuege/titel/the-inner-circle-sampie-terreblanche-friend-broederbonder-socialist-historian-economist-etcet.html

  • http://www.ozoneblue.co.za/ ozoneblue

    Brett Nortje
    September 10, 2012 at 13:38 pm

    Brett, Paul Ngobeni, has comprehensively washed the floor with poor Pierretjie there. The way he took him apart is simply awesome, I can only expect Pierre will have to play dirty and go for the balls.

  • Mikhail Dworkin Fassbinder

    @ Paul Ngobeni

    “my first real job in life was working underground as coal miner during my teenage years”.

    There are hardened cynics out that would say this claim is about as true as Dr Ngobeni’s claim that he has a doctorate.

  • Mikhail Dworkin Fassbinder

    @ Ozoneboy

    “Paul Ngobeni, has comprehensively washed the floor with poor Pierretjie there. The way he took him apart is simply awesome”

    OB, One can only marvel at the speed of your analysis of what Dr Ngobeni has to say. Would you perhaps post a short note explaining exacty what part of the good doctor’s short essay you found so convincing, and why?

    Thanks.

  • Maggs Naidu – (maggsnaidu@hotmail.com)

    Mikhail Dworkin Fassbinder
    September 10, 2012 at 16:05 pm

    Dworky,

    Please may I help OB out a wee bit.

    Here’s a clue as to which part of the long essay is convincing : “It appears that the poisoned political atmosphere has portrayed the NPA as an entity left rudderless on a sea of uncertainty.”

    In other words “Jiba, you’re pretty useless. Bugger off, I want your job!!!!!”

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