I was surprised last night to learn that the South African Prosecuting Authority has decided to charge the arrested Marikana Mine protesters with the murder of their 34 colleagues who were executed in day light by the South African Police Service agents and in front of international television cameras.
What is even more disgusting is that the SAPS agents who murdered the protesters in cold blood are free and waiting for the outcome of a so called independent police investigation. Who is policing this independent police investigation being done by another department of the SAPS?
One also wonders how the doctrine of common purpose is being applied in these circumstances when it is clear as to who killed the 34 miners. According to an AFP report Vincent Nmehille, a law professor at the University of the Witwatersrand has questioned the charges, "In charging the miners for the death of the miners killed by the police, I do not see how common purpose doctrine could be used here," How is the prosecution going to link the miners' mens rea and conduct of the police? This may certainly be an incorrect application of the legal doctrine of common purpose. Were the 270 arrested miners making a common cause with the police agents shot their peers? This question must be answered and proved against each one of the miners. The prosecution must provide details of what each one of them did in connection with the crime committed by the police. I am not sure whether police witnesses will be able to do this except showing that these people were present at a crime scene and demonstrating against their employer for higher wages when the police shot at some of them. In other words the challenge is how did they support or participate in the murder crimes committed by the police?
Doctrine of Common Purpose under South African Law
According to Mosoneke J in Thebus and Another v The State (2003) AHRLR 230 (SACC) 2003, at para 18,
The doctrine of common purpose is a set of rules of the common law that regulates the
attribution of criminal liability to a person who undertakes jointly with another person or
persons the commission of a crime.
He further goes on to refer to the definition given by Burchell and Milton which provides that
The fundamental question that arises from this definition is whether these miners were actively associating with the police to murder their colleagues?One wonders how the prosecution will establish the causal link needed to prove whether there was common purpose between the police and the arrested miners who could themselves have been victims of the police actions especially in light of the fact that the police were indiscriminately firing at the miners including those who were arrested.
Again, Professor Syman argues that
the essence of the doctrine is that if two or more people, having a common purpose to commit a
crime, act together in order to achieve that purpose, the conduct of each of them in the execution
of that purpose is imputed to the others.
The major hurdle as noted above, which the prosecution shall have to overcome is whether these arrested miners shared the same common purpose to kill their fellows so as to associate themselves with the actions of the police.
In S v Mgedezi, the following principles were laid out as the basis for invoking the doctrines of common purpose:
Yes, the 270 miners were present on the hill where their colleagues were murdered by agents of the South African Police Service.They were aware that the police were firing at the deceased miners, ironically including some of the arrested 270 miners who are now being charged of murdering their counterparts. We must continue to remind you that these arrested miners were potential targets of police shooting and therefore they survived by sheer luck or some of them were not on the paths of the shower of live ammunition unleashed on some of the unfortunate ones. The prosecution's problem is likely to arise from point number three because they have to prove that they (arrested miners) shared a common purpose with the police to kill their fellows by taking action that supported the killing that the police was doing. The causal connection may be impossible to prove here and the prosecution has to discharge their onus beyond reasonable doubt as to what exactly each of the accused miners was doing in connection with the murders in order to connect them or associate them to the criminal conduct of the police. As indicated before, the prosecution must prove mens rea (legal intention) to kill their fellow miners on the part of each one of the 270 arrested miners or that they must have foreseen death occurring and performed their acts of association in support of the killing of their colleagues by the police recklessly as to the consequences. This is not an easy task for the prosecution and am sure time will tell.
What is also interesting to note is that if the police were the main perpetrators then why have they not been arrested because these arrested miners did not actually kill their colleagues but the police did that? Is the prosecution not being selective here? We hope the rule of law will be upheld especially the principle which states that no one is above the law.
A further problem is that this horrendous incident has been largely politicised especially by President Zuma. He suggested that this incident did not just happen but must have been precipitated by some political force. I take a different view of this matter and argue that it was a result of police incompetence and recklessness in dealing with an issue that they were monitoring for almost a week until they decided to end the miners' strike by executing some of them. The police's action was deliberate especially if one analyses the videos captured by eTV and Reuters. One cannot avoid prejudging especially where there were loss of lives asking for better wages. You hear one of them shouting, "Cease fire, Cease fire, Cease fire!!!"This was probably a realisation that they had reacted inapproriately to a situation and was some form of damage limitation. God knows how many would have died if one of them had not asked the others to stop firing. The picture below tells you part of the story.
Adapted from Times Live
We hope these miners can be granted bail and that all members of the police force who were present at Marikana Hill will be arrested and prosecuted for their heinous crimes. If there was any political force at work then we hope the Commission of Inquiry set up by President Zuma will reveal the identity and the nature of this unknown political force.
Conclusion
Our concern is also that the police directly attacked the miners' right to freely express themselves thereby denying them the same right after the merciless execution of some of their colleagues. South Africans are better placed to tell the world what oppression is all about especially after their bitter experiences during the evil apartheid regime. We hope the killers of the 34 miners who are members of the SAPS will resign and hand themselves over for prosecution. Minister Mtetwa and the Police Commissioner must also be held to account for what happened and be prosecuted if they gave orders to shoot at the miners. The decision to shoot must have been given prior to this horrendous incident and we are all waiting to know who ordered the executions. In the meantime, Mtetwa and the Police Commissioner will do good to the people of South Africa by gracefully resigning from their positions, that is if they both have a conscience. This must be a issue of principle and not whether or not the right decisions were taken on this day of horror. The number of lives lost is unimaginable in a country that prides itself as a good example of well performing democracy. The killing of the 34 miners should not have happened at all especially when the police were closely monitoring events in Marikana for almost a week. The primary duty of the police is to protect the citizens. The SAPS failed the people of South Africa whether or not they were acting, in their improvised defence, in self defence. This is precisely why the Minister of Police and the Police Commissioner have both a moral and legal duty to resign immediately.
Lyndon T. Nkomo
IFSDZ
What is even more disgusting is that the SAPS agents who murdered the protesters in cold blood are free and waiting for the outcome of a so called independent police investigation. Who is policing this independent police investigation being done by another department of the SAPS?
One also wonders how the doctrine of common purpose is being applied in these circumstances when it is clear as to who killed the 34 miners. According to an AFP report Vincent Nmehille, a law professor at the University of the Witwatersrand has questioned the charges, "In charging the miners for the death of the miners killed by the police, I do not see how common purpose doctrine could be used here," How is the prosecution going to link the miners' mens rea and conduct of the police? This may certainly be an incorrect application of the legal doctrine of common purpose. Were the 270 arrested miners making a common cause with the police agents shot their peers? This question must be answered and proved against each one of the miners. The prosecution must provide details of what each one of them did in connection with the crime committed by the police. I am not sure whether police witnesses will be able to do this except showing that these people were present at a crime scene and demonstrating against their employer for higher wages when the police shot at some of them. In other words the challenge is how did they support or participate in the murder crimes committed by the police?
Doctrine of Common Purpose under South African Law
According to Mosoneke J in Thebus and Another v The State (2003) AHRLR 230 (SACC) 2003, at para 18,
The doctrine of common purpose is a set of rules of the common law that regulates the
attribution of criminal liability to a person who undertakes jointly with another person or
persons the commission of a crime.
He further goes on to refer to the definition given by Burchell and Milton which provides that
Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for specific criminal conduct committed by one of their number which falls within their common design. Liability arises from their ''common purpose'' to commit the crime.
The fundamental question that arises from this definition is whether these miners were actively associating with the police to murder their colleagues?One wonders how the prosecution will establish the causal link needed to prove whether there was common purpose between the police and the arrested miners who could themselves have been victims of the police actions especially in light of the fact that the police were indiscriminately firing at the miners including those who were arrested.
Again, Professor Syman argues that
the essence of the doctrine is that if two or more people, having a common purpose to commit a
crime, act together in order to achieve that purpose, the conduct of each of them in the execution
of that purpose is imputed to the others.
The major hurdle as noted above, which the prosecution shall have to overcome is whether these arrested miners shared the same common purpose to kill their fellows so as to associate themselves with the actions of the police.
In S v Mgedezi, the following principles were laid out as the basis for invoking the doctrines of common purpose:
In the first place, he must have been present at the scene where the violence was being committed. Secondly, he must have been aware of the assault on the inmates of room 12. Thirdly, he must have intended to make common cause with those who were actually perpetrating the assault. Fourthly, he must have manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of the others. Fifthly, he must have had the requisite mens rea; so, in respect of the killing of the deceased, he must have intended them to be killed, or he must have foreseen the possibility of their being killed and performed his own act of association with recklessness as to whether or not death was to ensue.
Yes, the 270 miners were present on the hill where their colleagues were murdered by agents of the South African Police Service.They were aware that the police were firing at the deceased miners, ironically including some of the arrested 270 miners who are now being charged of murdering their counterparts. We must continue to remind you that these arrested miners were potential targets of police shooting and therefore they survived by sheer luck or some of them were not on the paths of the shower of live ammunition unleashed on some of the unfortunate ones. The prosecution's problem is likely to arise from point number three because they have to prove that they (arrested miners) shared a common purpose with the police to kill their fellows by taking action that supported the killing that the police was doing. The causal connection may be impossible to prove here and the prosecution has to discharge their onus beyond reasonable doubt as to what exactly each of the accused miners was doing in connection with the murders in order to connect them or associate them to the criminal conduct of the police. As indicated before, the prosecution must prove mens rea (legal intention) to kill their fellow miners on the part of each one of the 270 arrested miners or that they must have foreseen death occurring and performed their acts of association in support of the killing of their colleagues by the police recklessly as to the consequences. This is not an easy task for the prosecution and am sure time will tell.
What is also interesting to note is that if the police were the main perpetrators then why have they not been arrested because these arrested miners did not actually kill their colleagues but the police did that? Is the prosecution not being selective here? We hope the rule of law will be upheld especially the principle which states that no one is above the law.
A further problem is that this horrendous incident has been largely politicised especially by President Zuma. He suggested that this incident did not just happen but must have been precipitated by some political force. I take a different view of this matter and argue that it was a result of police incompetence and recklessness in dealing with an issue that they were monitoring for almost a week until they decided to end the miners' strike by executing some of them. The police's action was deliberate especially if one analyses the videos captured by eTV and Reuters. One cannot avoid prejudging especially where there were loss of lives asking for better wages. You hear one of them shouting, "Cease fire, Cease fire, Cease fire!!!"This was probably a realisation that they had reacted inapproriately to a situation and was some form of damage limitation. God knows how many would have died if one of them had not asked the others to stop firing. The picture below tells you part of the story.
Adapted from Times LiveWe hope these miners can be granted bail and that all members of the police force who were present at Marikana Hill will be arrested and prosecuted for their heinous crimes. If there was any political force at work then we hope the Commission of Inquiry set up by President Zuma will reveal the identity and the nature of this unknown political force.
Conclusion
Our concern is also that the police directly attacked the miners' right to freely express themselves thereby denying them the same right after the merciless execution of some of their colleagues. South Africans are better placed to tell the world what oppression is all about especially after their bitter experiences during the evil apartheid regime. We hope the killers of the 34 miners who are members of the SAPS will resign and hand themselves over for prosecution. Minister Mtetwa and the Police Commissioner must also be held to account for what happened and be prosecuted if they gave orders to shoot at the miners. The decision to shoot must have been given prior to this horrendous incident and we are all waiting to know who ordered the executions. In the meantime, Mtetwa and the Police Commissioner will do good to the people of South Africa by gracefully resigning from their positions, that is if they both have a conscience. This must be a issue of principle and not whether or not the right decisions were taken on this day of horror. The number of lives lost is unimaginable in a country that prides itself as a good example of well performing democracy. The killing of the 34 miners should not have happened at all especially when the police were closely monitoring events in Marikana for almost a week. The primary duty of the police is to protect the citizens. The SAPS failed the people of South Africa whether or not they were acting, in their improvised defence, in self defence. This is precisely why the Minister of Police and the Police Commissioner have both a moral and legal duty to resign immediately.
Lyndon T. Nkomo
IFSDZ
