September 3, 2012 · 1 Comments
Contrary to prevailing opinion and as reported by the South African mainstream press, the Common Purpose doctrine is not unique to the country’s apartheid regime. Although it was widely used in South Africa during the apartheid era, the doctrine has its origins in English Law and was adopted into South African law. The Common purpose doctrine is widely accepted by South African courts (see the cases of S v Nhlapo and S v Nkombani ) and has stood the scrutiny of the Constitutional Court in the 2003 case of S v Thebus.
It is not the Common Purpose doctrine that is under scrutiny now but its application to the case of the Marikana miners. The essence of the doctrine is that if two or more people cooperate with one another in the committing of a crime, then the conduct of one or each of them is imputed to the others. The important part of the doctrine is that all the people involved must have had the intention to commit the murder and to assist one another in committing it.
In the case of the Marikana miners, the state contends that the miners intended to work together with the people as active participants in the murder of their colleagues. This is obviously a serious misinterpretation of the doctrine, because it presupposes that the miners intended to kill one another in the course of the strike. It also assumes that the miners knew or anticipated the response of the police to be that of killing them and that they had reconciled themselves to the possibility that they may be killed by the police.
Protest action, collective bargaining and the right to strike is protected under the Bill of Rights in the Constitution. Labour strikes over wages are very common in South Africa and have increasingly been accompanied by incidences of violence, intimidation and malicious damage to damage to property. While this may be the case it cannot be assumed that the miners foresaw the possibility of violent confrontation with the police that would have resulted in a large number of deaths or even death. While some miners may have carried weapons it cannot follow that all 270 of the arrested miners were aware of this fact that they were willing to be killed in the process of the strike.
What makes the charge more absurd is that the miners were not charged for the death of the two police men who died along with the security guards. It is more sensible to assume that the miners would make common cause with those miners who killed members of the police than to make common cause with killing themselves. For the charge to be somewhat sensible, some of the guilty police officers would have to be charged and arrested, so that it follows, at least at a principle level, that the miners who made common cause with them or shared with intention to murder would then be arrested alongside them. Even then the case of common cause against the miners would not stand.
In the case of S v Thebus, the Constitutional Court held that the common purpose doctrine, although constitutional should not be applied arbitrarily because of the serious consequences it had had for the rights of people accused under it. The charges against the miners have been made based on a serious and seemingly intentional misapplication of the law, suggesting that there must be some other motivation for the arrest of the miners. Were this is found to be the case; it then follows that the government would have acted unlawfully in detaining citizens arbitrarily.
The subsequent decision by the National Prosecuting Authority (NPA) to withdraw the charges against the mineworkers on 2 September paints a dire picture of the prosecuting body. Such inexplicable decisions and legal mistakes are expected to continue so long as the NPA does not address longstanding problems, such as the promotion of inexperienced attorneys to positions of significant responsibility, the systemic inability to secure white collar crime convictions and the growing politicisation and executive involvement in its decision making. Were it is to be found that the detention of the Marikana miners was due to arbitrary executive action, then their rights to freedom and bodily integrity would have been infringed. This has serious implications for our young democracy and even the role that the police must play in a democracy – in contrast to that of the apartheid police.