Lonmin miners that were arrested at Marikana mine earlier this month have been charged with the murder of 34 of their colleague who were shot by police during violent protests earlier this month.
The politically controversial move falls under the "common purpose" doctrine because the 270 miners were in the crowd that allegedly incited police on August 16.
The "common purpose" doctrine was used by former apartheid forces against black activists fighting against National Party rule.
The BBC reported on Thursday that at the time, the ANC campaigned against the doctrine that is now being used.
There is speculation that critics will accuse the ruling party of behaving like the apartheid regime.
Police opened fire on the protesting crowd, killing 34 and wounding 78 others. A commission of inquiry, set up by President Jacob Zuma, has yet to give its final report.
The miners appeared in the Ga-Rankuwe Magistrate's Court on Thursday where their bail application was postponed to next week.
"This is a very outdated and infamous doctrine," lawyer Jay Surju told the BBC's Focus on Africa.
"It was discredited during the time of apartheid."
The best known case was that of the "Upington 14", who were sentenced to death in 1989 for the murder of a policeman in 1985.
National Prosecuting Authority (NPA) spokesperson Frank Lesenyego told the BBC the workers would all face murder charges – including those who were unarmed or were at the back of the crowd.
"This is under common law, where people are charged with common purpose in a situation where there are suspects with guns or any weapons and they confront or attack the police and a shooting takes place and there are fatalities," he said.
'Bizarre and shocking'
Constitutional law expert Pierre de Vos said on Thursday, that the decision to charge the miners with murders was a "bizarre and shocking and represent[ing] a flagrant abuse of the criminal justice system in an effort to protect the police and/or politicians like Jacob Zuma and [Police Minister] Nathi Mthethwa".
De Vos cited Section 18 of the Riotous Assemblies Act of 1956 which states "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".
De Vos said "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."
After their appearance, expelled ANC Youth League leader Julius Malema told a crowd of protesters that charging the miners with murder was madness.
"The policemen who killed those people are not in custody, not even one of them. This is madness," he said.
"The whole world saw the policemen kill those people. We are going to be seized with this matter. We have asked the lawyers [representing the 270 men] to consider making an urgent application at the high court."
Malema said arrangements had been made for the group to be held at the Pretoria Central Prison and the Mogwase Prison, in North West.
"At the prisons, the comrades will not be mixed with other people already serving sentences there. Their families will be allowed to visit them," Malema, speaking in Sotho, told the crowd.
"Visiting days at the prisons are Tuesdays and Thursdays. We are going to get the lists [of which members of the group are detained at which prison] and will give them to your leaders. We must be strong."
Malema urged the protesters to remain steadfast and to return to court next week for the group's next appearance.
"We will come back next week, hopefully in larger numbers. We must not be demoralised by this postponement," he said.
"We have organised lawyers for these comrades. We have organised buses for you to go to the funerals this weekend." – Additional reporting by Sapa