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A word common to the barrage of remarks about the National Prosecuting Authority’s decision to charge the Marikana miners with the murder of 34 of their comrades that police killed, was “absurd”.
It popped up among the early views on the surprise move, clearly struck a chord, and stuck. How could miners, brandishing arms and menacing as they were, have been at common purpose with police facing them, their guns raised?
North West’s prosecutions boss, who had made the decision, insisted it was a legitimate one – even as his superior last Sunday publicly dumped blame for it squarely in his lap.
His argument notwithstanding, the applicability here of the common purpose doctrine was stuff for academic debate, for students’ moot courts, for tearooms at legal practices – not for provisional charges against 270 arrested miners who had been with the 34 killed and 78 wounded in the Marikana massacre.
It was embarrassing. And it was an insensitive way to pursue a vivid calamity watched over and over again by the world. It turned the spotlight once more on the country’s prosecutors, and what happens in the justice chain before cases go to trial.
Whether or not common purpose has any legal traction in this instance, the decision and its prompt reversal showed fallibility. And the announcement of the about-turn two days after the justice minister queried the decision, amid an outcry, did the NPA no good.
This was not the prosecuting authority’s first controversy. Its independence, removal from political sway, or any other kind, is vital. So is the quality of decisions on whether cases should go to court, and on what charges.
The somersault was a sharp reminder that justice, and seeing it done, starts before the accused appears in the dock and is asked to plead. And there must be accountability for those decisions.