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Johannesburg - Not even Justice Minister Jeff Radebe could understand the rationale for charging 270 arrested Marikana miners with the murder of 34 of their colleagues.
On Friday he demanded that the National Prosecuting Authority explain the logic of the move.
Within minutes, a statement from the NPA explained that while it generally did not feel the need to explain its position to the general public, it was relying on an apartheid-era case dating back to 1981 to charge the men with murder.
Explaining why it added murder charges to existing counts of, among others, public violence, illegal gathering and possession of dangerous weapons, the NPA cited the principle of dolus eventualis.
In terms of this anyone can be convicted of murder when a person dies as a result of actions that the accused should reasonably have foreseen.
While the NPA cited a 1981 court ruling accepting this principle in SA law, Saturday Star was told the principle dates back to 1963.
Radebe said that he was concerned that the NPA’s decision had “
induced a sense of shock, panic and confusion within the members of the community and the general South African public. It is therefore incumbent upon me to seek clarity on the basis upon which such a decision is taken.”
The NPA said the decision had been made by its North West prosecution boss Johan Smit, who had briefed acting National Director of Public Prosecutions Nomgcobo Jiba.
But adding to the confusion, the NPA explanation seems to contradict the amended charge sheet presented to the Ga-Rankuwa Magistrate’s Court on Thursday, which spoke of “planned and premeditated murder committed in furtherance of a common purpose”.
It was the use of that doctrine of common purpose – a common law principle often used by the apartheid-era justice system in political cases – that sparked legal criticism.
It followed outrage caused by television images flighted for days on local and international broadcasts and on websites, showing police armed with automatic rifles shooting at miners.
However, questions have also been raised over the decision to charge the 270 miners with the murders while the Marikana commission of inquiry has yet to get off the ground.
Now, according to a report on Media 24, lawyers for the arrested miners have given President Jacob Zuma until 1pm on Sunday to release the miners or face an urgent interdict to ensure that the men are freed.
Zuma announced the commission under retired Judge Ian Farlam five days after police shot 34 miners and injured 78 at Wonderkop near the Lonmin mine on August 16.
While he said the commission would also look at the deaths of 10 people in the preceding week, and scrutinise the roles played by Lonmin, trade unions and police, the terms of reference were expected to be published in the Government Gazette only yesterday.
Asked whether the murder charges effectively pre-empted the outcome of the commission of inquiry appointed to investigate the deaths in Marikana, justice spokesman Mthunzi Mhaga said: “Those are some of the issues we have to discuss, we have to reflect on. We can’t be oblivious that the [NPA] decision has a lot of implications.”
Wits law school Professor Stephen Tuson said the NPA’s decision was “totally ill-advised”, particularly in light of the commission of inquiry. “How can the NPA and the cops know what happened and proceed to charge with murder? It is prejudicing the outcome of the commission,” he said. “One draws the conclusion there must be an ulterior motive.”
Constitutional law expert Pierre de Vos said for the State to substantiate the murder counts on the principle of common purpose it had to show the miners had the same intentions as the police to shoot their comrades.
While Radebe was within his rights to request an explanation, he could not stop the prosecution. That could be done only in a separate approach to court, requesting the charges be dropped because the decision to prosecute had been irrational, De Vos said. - Saturday Star