The decision by the National Prosecuting Authority (NPA) preliminary to withdraw charges of murder against 270 Marikana miners for the killing of 34 of their colleagues by the police was the only remotely rational course of action to take. It is probably too late to save the NPA from becoming the laughing stock of most South Africans and people across the rest of the world, but the decision seems like a glimmer of rationality in a sea of madness.
Yet it is more than surprising that the NPA is maintaining its original decision to charge the miners was legally sound. It’s like a child denying that ate his mother’s chocolate cake when he has chocolate icing smeared all over his face. Even more surprising is that a legal academic from Wits has argued that, theoretically at least, the miners could be convicted of murder under the common purpose doctrine.
According to these defenders of the NPA, the decision was legally sound because the state would only have to prove that the miners were present at the scene of the killing and aware of an attack on the police; that the miners intended to associate with those attacking the police and had manifested their sharing of the common purpose by some act; and lastly that the miners had the intent, in the form of dolus eventualis, by showing the miners foresaw the (reasonable) possibility that someone may be killed by the actions of those in the crowd who provoked the police to shoot and kill some of them.
Could these views have been animated by a blinding animosity towards the miners; or by a fear of the protesting (black) hordes; or by an unexamined belief that the miners deserved to be punished collectively because one or more persons who took part in the strike had allegedly killed two police officers? Or have those who made this decision to prosecute or defended it – even if only on theoretical grounds – not studied the relevant legal materials properly?
The leading Criminal Law textbooks (quoted approvingly by the Constitutional Court in its judgment on the common purpose doctrine) illustrate that the doctrine is used to impute the criminal conduct of some members of a group to the whole group who had the common purpose to commit a crime. Burchell and Milton define the doctrine as follows:
“Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for specific criminal conduct committed by one of their number which falls within their common design. Liability arises from their ‘common purpose’ to commit the crime.”
Similarly, the other Criminal Law guru, Snyman, points out in his textbook that:
“the essence of the doctrine is that if two or more people, having a common purpose to commit a crime, act together in order to achieve that purpose, the conduct of each of them in the execution of that purpose is imputed to the others.”
This means that the 270 miners could only be convicted of murder if the conduct of one of its members could be shown to have caused the death of the 34 miners and if all the other requirements for common purpose had been met. Given the fact that the police actually shot the 34 miners, it is unclear how the conduct of any of the miners could have cause the death of their comrades.
For a successful prosecution, the state would have to prove that the miners made common purpose with the police with the intention to have their fellow workers killed. It is only where the miners can be shown to have had a common purpose with the police that the conduct of the police (who actually killed the miners) could be imputed to them. As none of the miners actually killed anyone on the day of the massacre, it would help little to prove they had a common purpose to protest or even to attack the police, because none of them were involved in the killing of the 34 miners.
That is why the Constitutional Court confirmed in the Thebus case that a group of people who are not co-perpetrators could only be found guilty of a crime with assistance of the common purpose doctrine if they were aware the crime was being committed and must have intended to make common cause with those who were actually perpetrating the crime. The crime in this case being the killing of 34 miners by the police, it would be impossible to prove that the miners made common purpose with the police to kill their fellow miners.
In any case, even if this was not so, and even if the state only had to prove that the miners acted with a common purpose with one another by walking in a group towards the police and that this led to the shooting that killed 34 of their comrades, the state would never have been able to prove the involvement of the 270 miners in this common purpose. As the Constitutional Court warned, it is the
“duty of every trial court, when applying the doctrine of common purpose, to exercise the utmost circumspection in evaluating the evidence against each accused person. A collective approach to determining the actual conduct or active association of an individual accused has many evidentiary pitfalls. The trial court must seek to determine, in respect of each accused person, the location, timing, sequence, duration, frequency and nature of the conduct alleged to constitute sufficient participation or active association and its relationship, if any, to the criminal result and to all other pre-requisites of guilt. Whether or not active association has been appropriately established will depend upon the factual context of each case.”
How would the state ever prove that the 270 actively associated with the one person in the crowd who allegedly shot at the police? Merely being proven to have been in the crowd might have been sufficient to be convicted of murder by one of the members of the crowd during the Apartheid years, but those days are long gone. The Constitutional Court decision makes this abundantly clear. More is required now, and the state would never have been able to meet this more stringent evidentiary burden.
But apart from the evidentiary problems, there is still the problem that none of the miners had actually set out to kill their comrades. Neither had any of the miners killed any of their comrades. The police did that.
To overcome this problem, those who argue that the decision to charge the miners with murder was legally plausible say that all the miners could be guilty of murder if one of them had shot at the police because the person who shot at the police could be found guilty of murder and his guilt could be ascribed to all of them via the common purpose doctrine. But this argument conflates the requirements for common purpose with the requirements for intention.
Those who defend the NPA (as well as the NPA itself) wrongly invoke the 1981 judgment of the Appellate Division in S v Nhlapo and Another, where a guard was shot and killed – possibly by a fellow guard – in a gun battle with robbers. The court stated that the robbers – who were ready to use their guns to overpower the guards – must have reasonably foreseen that someone could get killed in the robbery and therefore possessed the necessary intention for murder (in the form of dolus eventualis). The court therefore convicted the robbers of the murder of the guard – even though the state had not proven that any of them shot the guard.
The problem is that this scenario is entirely different from what the police claimed happened at Marikana. The Nhlapo case did not deal with the common purpose doctrine because all the robbers were co-perpetrators: they all had guns, were prepared to use them, and then reasonably foresaw that someone would be killed. The actions of one robber were not imputed to other robbers via the common purpose doctrine: they were all charged because they had taken part in the shootout. Their actions caused the death of the guard and they reasonably foresaw that it could.
But the actions of all 270 miners did not cause the death of the 34 victims. At most, the actions of one miner who shot at the police could arguably be said to have caused the death of others. To hold otherwise would be to criminalise the behaviour of every member of a crowd of protestors, where the behaviour of one of the protestors might have contributed to the death of someone and where that protestor had reasonably foreseen the possibility that his actions would lead to the death. It would, in effect, abolish most of the requirements for criminal liability for anyone taking part in a protest march and would be so invasive not only of the right to protest freely but also of the right to be presumed innocent until proven guilty, that it would undermine the very essence of our Bill of Rights.
Unlike those robbers, all of the 270 miners were not armed with guns. They had not all taken part in a shooting match with the police. They were not co-perpetrators going out to overpower the police. Arguably, one of those in their midst had a gun and shot at the police. They could therefore not have been guilty of murder because they had no intention to kill their comrades. To hold otherwise would be to use the common purpose doctrine in a situation for which it has not been designed and for which has not (and never will be) approved by our courts.
In any case, even if this was not so, no court in South Africa is ever going to find that the miners should reasonably have foreseen the possibility that the police would start shooting at them with live ammunition and would kill 34 of their comrades because one among them had a firearm.
We live in a democracy. We have a right to expect the police to obey the law and use minimum force, as they are required to do by the Police Act. We cannot and should not ever accept that it is reasonable to foresee that the police would use maximum force and would shoot and kill 34 protestors because one of them happened to have been armed with a gun. For a court to hold otherwise would be for it to hold that it is reasonable for the police at best to be untrained, bumbling, and bizarrely incompetent or, at worst, to be malicious, vengeful, law-breaking thugs.
It is a pity that some in the NPA seem to have forgotten (or might never have noticed) that we indeed live in a democracy now, and that we can reasonably expect the police to obey the law. DM