/ 14 September 2012

NPA loses the most in calling for murder charge against miners

The debacle caused by the initial decision to charge 270 miners with the deaths of 34 people at Marikana added greatly to the growing illegitimacy of the NPA.
The debacle caused by the initial decision to charge 270 miners with the deaths of 34 people at Marikana added greatly to the growing illegitimacy of the NPA.

It announced that the NPA would instead be charging the miners with causing the crash of the SAA Helderberg in 1987.

The debacle caused by the initial decision to charge 270 miners with the deaths of 34 people at Marikana on the grounds of "common purpose" added greatly to the growing illegitimacy of the NPA.

It looked as though the NPA, faced with the incompetence of the police, serious allegations of Lonmin's exploitative labour relations and the ineptitude of the government, was determined not to be left out of this limelight of depressing mediocrity. If that seems a harsh assessment, it is best to recall the facts. On August 30 the NPA announced, presumably after a decision taken by its North West head, Johan Smit SC, that murder charges would be laid against 270 miners who had been arrested and detained. The legal basis for the charges was found in the "common purpose" doctrine, ironically much favoured by apartheid prosecutors dealing with political unrest.

Unsurprisingly, this decision caused both a national and an international outcry.

The next day, Justice Minister Jeff Radebe issued a statement informing the nation that he had called for an explanation from the acting director of prosecutions, advocate Nomgcobo Jiba. By September 2, Jiba had announced that "provisional charges" were being withdrawn. Yet she continued to insist that the initial decision had been based on sound legal principle, a point she repeated in a radio interview a day later.

The doctrine of common purpose can be summarised thus: assume that Z murders A. X is present at the scene, is aware of A's act, intends to make common cause with Z and therefore manifests his sharing of this common purpose by performing some act of association with Z, so X and Z can be shown to have an intention to murder A.

In such a case, even if the actual act that caused the death of A was carried out by Z, X can also be found guilty of murder on the basis of a common purpose. The Constitutional Court in Thebus and Another vs the State held that this doctrine passed constitutional muster. To this extent, Jiba and Smit are correct to claim that the doctrine is sound, recognised in our law and  not unconstitutional.

But it was the application of the doctrine, not the doctrine itself, that led to so much criticism in the 1980s. Recall, for example, the Upington 26, who were charged with the murder of a policeman. The police in that case rounded up several people who were shown subsequently to have had no involvement at all with the murder, but they were all charged with murder on the basis of common purpose. Not even the apartheid prosecutors, however, had the stupidity or lack of legal insight to charge 270 people of  using this doctrine.

It gets worse for the NPA. Given that it is alleged that the police caused the deaths of the 34, presumably the NPA would have had to argue that the 270 were in common purpose with the police. Had the NPA carefully read the Thebus judgment in which the problems of proof are raised and exhibited a semblance of recall of our legal history, it might have desisted from so ill-considered a decision.

Smit's move would produce a breathtaking innovation to our law. If armed robbers are shot by police, the balance of the gang are guilty of murder. Obviously, legal imagination knows no limits in North West.

Unfortunately, there are also other disturbing implications in this case. The NPA is an independent body, yet some may note that within two days of the minister of justice demanding an explanation the decision was revoked. The inference is strengthened by the continued insistence of both Jiba and Smit that the decision to prosecute was based on sound legal principle. A plausible response to the suggestion that the minister exerted influence, however, is that the initial decision was clearly wrong. Once Jiba considered Smit's decision, she reacted immediately.

That, however, raises further questions: Would Smit have come to so momentous a decision without consulting his national director? What accountability exists in the NPA? If only Smit is to blame, surely he should be asked to consider his position? In the final analysis, the sheer stupidity of the initial decision has caused further damage to a key institution that is still in the news for all the wrong reasons. The public is entitled to know whether the principle of accountability for compromising an institution extends to the NPA and its senior staff.