Folly of common purpose

REUTERS

Miners and their supporters dance after being released outside the court in Ga Rankuwa, near Pretoria. The writer says the way the National Prosecuting Authority has handled the Marikana massacre investigation has brought shame to the government and the people of South Africa.

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 divers engaged in a race, ran down and killed a pedestrian. It was unknown which 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.

The parties must share a common purpose and make it clear to each other by their actions that they are acting on their common intention, so that each member of the group assumes responsibility for actions of other members in that group.

When this happens, all that flows from execution of the plan will make them all liable.

The idea of imputed liability was also found in the obsolete and discredited versari doctrine in Cannon law, in terms of which liability does not extend merely to classical guilt in the forms of intention and negligence, but that liability may be found for consequences which are accidentally realised as a result of prohibited conduct.

This is a question of causation, since an oblique intention will be imputed to the persons involved for intermediate consequences that are a necessary precondition to achieving the ultimate purpose, and liability will follow where there are accidental and unforeseen departures from the plan – provided that there is no new act to break the chain of causation.

Ostensibly using the above doctrine, the National Prosecuting Authority (NPA) decided impetuously to charge 259 arrested Marikana miners with the murder of their 34 colleagues who were shot dead by the police.

These charges have subsequently been provisionally withdrawn.

The extended and erroneous application of this controversial doctrine of common purpose was discredited during the last decade of the apartheid era.

So, during a period of intense civil commotion caused by the opponents of the apartheid regime, the state used it to secure convictions and criminalise the militant protest action of political activists in the townships.

Besides relying on cognate section 18 of the Riotous Assemblies Act, which is still on the statute book today, the state also used an extended version of the doctrine of common purpose, which the courts had interpreted to apply to all members of a mob or gathering who had “actively associated” with the criminal conduct by one member of the crowd – even if those charged were not actually involved at all in the commission of the crime.

Flimsiest

During this period two cases involving this questionable doctrine resulted in notoriety for our apartheid criminal justice system.

The first was the Upington 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 before the homicide.

Equally notorious was the criminal case designated the “Sharpeville 6”, who in an analogous manner 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.

The Constitutional Court in its judgment in the Thebes case, declined to abolish the doctrine in its entirety, but supported a very much narrower definition

In the light of the above 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 indeed an unprecedented, irrational and distorted application of the doctrine and will undoubtedly taint the NPA with notoriety internationally.

Even during the long and very painful apartheid era involving serious civil commotion spanning more than four decades, was such a farcical criminal ruse ever devised.

In effect the NPA and the criminal justice system is rendered the laughing stock of the world.

Furthermore, this foolish conduct of the NPA could, had it not been withdrawn, have prejudged the outcome of the commission of inquiry into the tragedy, so violating the sub judice rule.

The horrific deaths of the miners at Marikana is a tragedy of the first order for South Africa. The events at Marikana 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 situation by its conduct, and brings shame to the government and people of South Africa.

By instituting the charge and then summarily withdrawing it, the impression created is that the leadership within the NPA does not actually know what it is doing, and in effect is fumbling in the dark – to the great detriment of this country.

* Devenish is a senior research associate and a former professor of public law at the University of KwaZulu-Natal (Durban) and one of the scholars who assisted in drafting the interim constitution in 1993.