At a press briefing on Sunday, the NPA said at least 140 of the arrested Marikana strikers could be released by as early as Monday, with the balance of the group of around 270 due for release as soon as their home addresses were verified.
That is, unless a court should decide that the men should remain in prison, despite the National Prosecuting Authority no longer opposing bail or, for the time being, accusing the group of the murder of their fellows – at least some of whom were killed by police.
The strikers are to be released on a warning, and will not be required to post bail.
"The decision and pronouncement on the final charges to be preferred against any persons involved will only be made once all investigations have been completed," said acting national director of public prosecutions Nomgcobo Jiba. "The murder charges against the current 270 suspects, which was provisional anyway, will be formally withdrawn provisionally in court on their next court appearance. Other provisional charges will remain."
The most serious of the remaining charges relate to illegal gathering with dangerous weapons.
Neither Jiba nor the man responsible for the original decision to press the murder charges, North West NPA prosecutions director Johan Smit, admitted any error in the decision to put those charges before the court, and so causing a public outcry.
"It is of the utmost importance that as soon as there is evidence to prove the elements to link somebody, that charge has to go to the court in order for the court to make an informed decision about bail," said Smit. It was the duty of prosecutors to raise the possibility of a murder prosecution, he said.
And Jiba said the original decision to institute the murder charges was based on a "sound principle" that is applicable in a democracy, effectively leaving the door open for similar charges to be pressed against the group at a later date.
Whether the group or any members are ultimately charged with murder may depend, in part, on the findings of the judicial inquiry appointed by President Jacob Zuma into the killings. Both Jiba and Smit said they would prefer to wait for those findings before finalising charges, but were not legally obliged to do so.
Jiba said the decision to withdraw the murder charges, for the time being, was entirely hers, based on her function of reviewing such decision by provincial prosecuting offices and that there had been no contact with the Presidency on the matter. Nor, she said, had the NPA had any interaction with the inter-ministerial committee set up to deal with the aftermath of the Marikana killings. The decision followed "intense deliberations" within the NPA, she said.
The withdrawal of the charges will not affect seven other men currently before the court of the murder, earlier in the week of the massacre on 16 August, of two police members. Smit said another individual was being investigated on the murder of two Lonmin security guards, but that there were no cases in front of the NPA regarding the six miners also killed that week.
Neither Jiba nor Smit could provide any detail about investigations of police members, whether charges would be pressed against police members, or when details of autopsies or the forensic site report would be released.
"The actions of the police will be sorted out still," Smit said. "We're ignoring that."