DIFFICULT TIME: A relative is comforted ahead of a memorial service on Thursday for miners killed during last week's clashes at Lonmin's Marikana platinum mine. Picture: REUTERS
DIFFICULT TIME: A relative is comforted ahead of a memorial service on Thursday for miners killed during last week's clashes at Lonmin's Marikana platinum mine. Picture: REUTERS

THE doctrine of common purpose is a legal doctrine that imputes criminal liability on the participants involved in criminal activity for all that results from such activity.

It has its origin in the English criminal law case of Swindal and Osborne, where two cart drivers engaged in a race ran down and killed a pedestrian. It was not known which one of the two had driven the fatal cart, but since both were equally encouraging each other in the race, this was irrelevant and both were held jointly liable for the homicide.

Ostensibly using the above doctrine, the National Prosecuting Authority (NPA) decided impetuously to charge 270 arrested Marikana miners with the murder of their 34 colleagues who were shot dead by the police.

These charges have subsequently been withdrawn. The extended and erroneous application of this controversial doctrine of common purpose was discredited during the last decade of the apartheid era when, during a period of intense civil commotion caused by the opponents of the apartheid regime, the state used it to secure convictions and to criminalise the militant protest action of political activists in the townships.

During this period, two cases involving this questionable doctrine resulted in notoriety for our apartheid criminal justice system. The first was the Up ington case, where 26 people were convicted of the murder of a councillor since the state was able to prove, albeit on the flimsiest of evidence, that they were all part of a crowd who gathered outside the councillor’s house prior to the homicide.

Equally notorious was the criminal case designated the "Shapeville Six". The accused were convicted and sentenced to capital punishment on the basis of the common purpose doctrine. Only the moratorium placed on the death penalty saved them from the gallows.

It is surprising that the NPA has resurrected this doctrine in an absurd and outrageous manifestation by reasoning that ". .. in legal terms, when people attack or confront the police and shooting takes place which results in fatalities ... suspects arrested, irrespective of whether they shot police members or the police shot them, are charged with murder".

This is an unprecedented, irrational and distorted application of the doctrine and will undoubtedly taint the NPA with notoriety internationally. In effect, the NPA and the criminal justice system are rendered the laughing stock of the world.

Further, this foolish conduct of the NPA could have, if it was not withdrawn, prejudged the outcome of the commission of i nquiry into the tragedy, violating the sub judice rule.

The horrific death of the miners at Marikana is a tragedy of the first order for the country. The events need to be handled with extreme sensitivity and in a manner that reflects wise and strong political leadership by all concerned.

The NPA has exacerbated a tragic crisis by its conduct, and brings shame to the government and people of SA. By instituting the charge and then summarily withdrawing it, the impression is created is that the leadership within the NPA does not know what they are doing and, in effect, are fumbling in the dark to the great detriment of this country.

George Devenish

Senior research associate and former professor of public law, University of KwaZulu-Natal (Durban)