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Wednesday, September 5, 2012
Burden of proof too heavy for State
September 5 2012 at 09:00am
By Pierre de Vos
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The National Prosecuting Authority seems to have regained a small sprinkling of sanity – the charges of murder against 270 protesting Lonmin miners will be withdrawn. Yet several so-called experts and scholars are still claiming, although feebly, that the charge could have held water. Let’s not kid ourselves – the law is perfectly clear.
The decision by the NPA to provisionally withdraw charges of murder against the 270 Marikana miners for the killing of 34 of their colleagues by the police was the only remotely rational course of action to take. It is probably too late to save the NPA from becoming the laughing stock of South Africa and the world, but the decision seems like a glimmer of rationality in a sea of madness.
Yet it is more than surprising that the NPA is maintaining that its original decision to charge the miners was legally sound. It’s like a child denying that he ate his mother’s chocolate cake when he has chocolate icing smeared all over his face. Even more surprising is that a legal academic from Wits has argued that, theoretically at least, the miners could be convicted of murder under the common purpose doctrine.
According to these defenders of the NPA, the decision was legally sound because the State would only have to prove that the miners were present at the scene of the killing and aware of an attack on the police; that the miners intended to associate with those attacking the police and had manifested their sharing of the common purpose by some act; and that the miners had the intent, in the form of dolus eventualis, by showing that the miners foresaw the (reasonable) possibility that someone may be killed by the actions of those in the crowd who provoked the police to shoot and kill some of them.
Could these views have been animated by a blinding animosity towards the miners; or by a fear of the protesting (black) hordes; or by an unexamined belief that the miners deserved to be punished collectively because one or more people who took part in the strike had allegedly killed two police officers? Or have those who made this decision to prosecute, or defended it – even if only on theoretical grounds – not studied the relevant legal materials properly?
The leading criminal law textbooks (quoted approvingly by the Constitutional Court in its judgment on the common purpose doctrine) illustrate that the doctrine is used to impute the criminal conduct of some members of a group to the whole group who had the common purpose to commit a crime.
Unjust: Miners arrive at court in |Ga-Rankuwa, near Pretoria, on Monday. Those detained after 34 of their colleagues were shot dead at Marikana mine have been released. Picture: Mike Hutchings Reuters
Burchell and Milton define the doctrine as follows: “Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for specific criminal conduct committed by one of their number which falls within their common design. Liability arises from their ‘common purpose’ to commit the crime.”
Similarly, the other criminal law guru, Snyman, points out in his textbook that: “The essence of the doctrine is that if two or more people, having a common purpose to commit a crime, act together in order to achieve that purpose, the conduct of each of them in the execution of that purpose is imputed to the others.”
This means that the 270 miners could be convicted of murder only if the conduct of one of them could be shown to have caused the death of the 34 miners and if all the other requirements for common purpose had been met.
Given the fact that the police shot the 34 miners, it is unclear how the conduct of any of the miners could have caused the death of their comrades.
For a successful prosecution, the State would have to prove that the miners made common purpose with the police with the intention to have their fellow workers killed. It is only where the miners can be shown to have had a common purpose with the police that the conduct of the police (who killed the miners) could be imputed to them.
As none of the miners killed anyone on the day of the massacre, it would help little to prove they had a common purpose to protest or even to attack the police.
That is why the Concourt confirmed in the Thebus case that a group of people who are not co-perpetrators could be found guilty of a crime with the assistance of the common purpose doctrine only if they were aware that the crime was being committed and had intended to make common cause with those who were perpetrating the crime. The crime in this case being the killing of 34 miners by the police – it would be impossible to prove that the miners made common purpose with the police to kill their fellow miners.
In any case, even if this was not so, and even if the State had to prove only that the miners acted with a common purpose by walking in a group towards the police and that this led to the shooting that killed 34 of their comrades, it would never have been able to prove the involvement of the 270 miners in this common purpose.
As the Concourt warned, it is the duty of every trial court, when applying the doctrine of common purpose, to exercise the utmost circumspection in evaluating the evidence against each accused.
A collective approach to determining the conduct or active association of an individual accused has many evidentiary pitfalls.
The trial court must seek to determine – in respect of each accused – the location, timing, sequence, duration, frequency and nature of the conduct alleged to constitute sufficient participation or active association and its relationship, if any, to the criminal result and to all other prerequisites of guilt. Whether or not active association has been appropriately established will depend upon the factual context of each case.
How would the State ever prove that the 270 actively associated with the one person in the crowd who allegedly shot at the police?
Merely being proven to have been in the crowd might have been sufficient to be convicted of murder by one of the members of the crowd during the apartheid years, but those days are long gone. The Concourt decision makes this abundantly clear.
More is required now, and the State would never have been able to meet this more stringent evidentiary burden.
But apart from the evidentiary problems, there is still the problem that none of the miners had set out to kill their comrades. Neither had any of the miners killed any of their comrades.
The police did that.
Comments by Sonny
In retrospect if the police were tried for the killing of the miners, then it could also be assumed that their colleagues, knew that they intended killing the miners.
This because they were all armed with pistols and automatic weapons and that they had the ability and possibly desire to kill the miners.
Who employs the members of the NPA?
Who appointed the Chief of the NPA?
Who is trying to make the Judiciary accountable to the Executive?
What can the President of SA to justify his actions?
So, the Burden of Proof is not in the pudding!