The news that the National Prosecuting Authority (NPA) decided to charge 270 arrested Marikana miners with the murder of their 34 colleagues shot dead by police, by relying on the criminal law doctrine of common purpose, has caused outrage.
The criticism has ranged from the suggestion that common purpose is "an outdated apartheid law [which] has been hauled out and dusted off to press [the] charges"; that it "was discredited during the time of apartheid"; and that the charges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.
I do not mean to imply here that I am of the view that the miners did indeed attack the police, or that they did not, since it seems prudent to wait for the findings of a judicial inquiry. I wish to explore how these charges might be valid.
The facts, from the little one may glean, seem to me to indicate that the killing of the 34 was a state-sanctioned massacre. But, let me address the theoretical foundations of the charges.
It is useful to observe what it is that the so-called doctrine of common purpose does. It is one of the few places in our criminal law where courts are allowed to pretend. It allows a court to regard the conduct of every person in a common purpose; to be the conduct of every other person in that common purpose. The effect is that, for any one person in a common purpose, our law takes the view that they did, naturally, what they actually did themselves, but also what everyone else who they are in the common purpose with did.
If A and B are in a common purpose to kill P, and, in pursuit of the common purpose, A holds P while B stabs P to death, our law will take it that A held P, but also regard A as having stabbed P. For B, the same will apply, that not only did B stab P, but that B also held P. The point is that, under common purpose, you don’t have to do the deed yourself. You merely need to enter into a common purpose with those who do.
Beyond this, several points should be observed. The first is that while common purpose was used and abused under apartheid, so was almost our entire legal system. This does not make common purpose apartheid law, or outdated – particularly when it continues, since the dawn of the new democracy, to be relied upon in our criminal courts on a daily basis in almost every case where multiple accused persons are on trial.
Moreover, it makes it exceedingly difficult to dismiss it as outdated apartheid law when it was endorsed in the Constitutional Court in 2003 in the case of S v Thebus. The Constitutional Court endorsed the requirements for common purpose set out in the case of S v Mgedezi, decided under apartheid in 1989.
Some incredulity has been expressed at the notion that one can be guilty of the murder of a co-perpetrator, where the co-perpetrator is killed by the party who you and your co-perpetrator have attacked.
What I want to answer is the theoretical question of whether they could be convicted of murder, under common purpose, assuming it can be proved that they did. Clearly, they must satisfy the requirements of common purpose, as set out in Mgedezi and endorsed in Thebus: they must have been present at the scene; aware of the attack on the police; intend to associate with those attacking the police; and manifest their sharing of the common purpose by some act; and then, that they foresaw the (reasonable) possibility that someone may be killed.
It is not impossible that this may be proved – perhaps not in respect to the entire group, or even a large part of the group, but it is possible that these requirements may be met. Assuming again, other requirements of criminal liability (such as unlawfulness and capacity – which doesn’t appear obviously in issue here), it is then possible that a part of the group could be found to have been in a common purpose to attack and kill members of the police. The question remains though, as De Vos rightly observed, how would that common purpose to kill police rebound to include the killing of co-perpetrators.
Under common purpose you don’t have to do the deed yourself, but only enter into a common purpose with those who do. In the context of murder, which is defined as the unlawful intentional causing of death of another human, this takes on an extended meaning. It means that one need only form a common purpose with those who cause the death of another person – and for our purposes (there are rare exceptions to this), the other person could be any person. Thus if one, through one's common purpose, cause the death of someone with the foresight of this risk, one may be convicted of murder – even if the person killed is your co-perpetrator.
This is not only theoretically possible, but several Appellate Division (AD) decisions (the court of highest authority on non-constitutional matters) have convicted perpetrators in exactly this manner. In S v Nkombani (1963), a robber was convicted of the murder of his co-perpetrator where he shot his co-perpetrator. In S v Nhlapo (1981), the AD convicted co-perpetrators of the murder of a guard, killed during the commission of a robber, by a fellow guard.
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.
James Grant holds a PhD and is a senior lecturer in Criminal Law at Wits University.