Pretoria - In an about-face, the National Prosecuting Authority announced on Sunday it was provisionally withdrawing murder charges against 270 Lonmin mineworkers.
The charging of the miners had sparked shock and outrage.
Political parties, trade unions and legal experts welcomed the latest move and said the miners should never have been charged in the first place.
Acting national prosecutions chief Nomgcobo Jiba, who announced the embarrassing climbdown at a briefing in Pretoria on Sunday, said some of the detained mineworkers would be released on a warning on Monday.
They have been in custody since August 16, when they were arrested in connection with public violence charges after 34 striking miners were killed by police gunfire at Lonmin’s Marikana platinum mine near Rustenburg.
Jiba was flanked by her two deputies – Thoko Majokweni and Asset Forfeiture Unit head Willie Hofmeyr – as well as advocate Johan Smit SC, the North West director of public prosecutions (DPP), at whose feet she laid sole blame for the decision to charge the men with murder.
“The murder charge against the current 270 suspects will be formally withdrawn provisionally in court on their next court appearance. It must be emphasised that the DPP’s [Smit’s] decision was not a final decision on the charges that the suspects are to face,” Jiba said.
She added that “other provisional charges will remain”, however.
Jiba also said the decision to institute murder charges against the miners was based on a “sound legal principle which has not only been part of our legal system for decades, but continues to remain relevant and applicable in our democratic dispensation” – a reference to the common-purpose doctrine, often applied in apartheid courts.
Jiba said those mineworkers whose physical and residential addresses the police had been able to verify would appear in court on Monday, when an application would be made for their release.
Those whose addresses had not been confirmed would remain in custody until their next court appearance on Thursday.
She said the addresses of about 140 of the detained mineworkers had, at last count, already been verified.
Smit was at pains on Sunday trying to justify why murder had been added as one of the charges.
He used the example of a 1999 case, S v Lungile and Another, where a group of armed robbers had met resistance from police, leading to a violent confrontation during which one of the robbers, or a bystander, was killed either by the police or the robbers. The robbers were charged for the murder of those who had died. He gave examples of two similar cases.
However, his stance was rejected on Sunday by advocate Paul Hoffman SC, director of the Institute for Accountability in Southern Africa. Hoffman said that in law Smit had a case, but he had needed to “lift his head out of the law books” in this particular case and had to look at the bigger picture.
“I think the NPA was well advised to do that. The decision to charge the miners with murder was insensitive,” said Hoffman.
Lawson Naidoo, executive director of the Council for the Advancement of the SA Constitution, said: “The decision to charge them with murder should have never happened in the first place. It was purely irrational, and Jiba ought to have acted immediately.”
Seven miners still face murder charges in a separate case involving two policemen who were hacked to death about a week before the August 16 massacre.
ANC chief whip Mathole Motshekga also welcomed the decision to provisionally drop the murder charges.
“Questions and eyebrows have been raised regarding the NPA’s prosecutorial strategy, which sought to hold the arrested miners legally responsible for the Marikana tragedy,” he said.
Cosatu spokesman Patrick Craven said: “It was absolutely outrageous that they were charged in the first place. We welcome their release and hope they get released immediately… [and are] not kept for longer than is necessary.”
National Unions of Mineworkers spokesman Lesiba Seshoka said: “You must have sufficient evidence to charge people. You can’t charge over 200 people on the basis that they were there when it happened. We expect that police will do thorough investigations and arrest the real culprits.”
DA deputy spokeswoman on justice Debbie Schafer said the decision was the best “under the circumstances”.
“But this still doesn’t answer why the charges were brought in the first place,” she said.
Among senior ANC members who criticised the decision was party treasurer Mathews Phosa, who called it “almost absurd”.
Justice minister Jeff Radebe on Friday asked Jiba to explain the rationale behind the decision. – Additional reporting by Omphitlhetse Mooki