South African miners charged under Apartheid-era law

Use of obscure law to charge Marikana miners with murder of 34 colleagues is 'shameful', says expert

LAST UPDATED AT 12:37 ON Fri 31 Aug 2012

THE DECISION to charge 270 South African miners with the murder of 34 colleagues shot by police has drawn sharp criticism from legal experts.

Not a single police officer has yet been charged in connection with the shootings during a protest at the Marikana platinum mine on the 16 August. Police say the miners charged at them with clubs and machetes. South Africa's National Prosecuting Authority has promised that President Zuma will set up a judicial commission to investigate their actions.

In the meantime, the BBC reports, the miners have appeared in court, where they were told they will be tried under the "common purpose" doctrine. This law, which dates back to the Apartheid-era, permits the prosecution to apportion criminal responsibility when there is confusion over the exact identity of perpetrators who take part in group-based violence.

The common purpose doctrine can be used in two different ways.

The first looks for 'prior agreement', in this case assessing whether the miners had prepared for lethal violence before the clash with police. University law professor Stephen Tuson told the BBC there appears to be little evidence that this was the case.

The second way in which the common purpose law can be used is if individuals can be shown to have 'spontaneously' associated themselves with criminal acts that take part in a crowd. It is believed that the Marikana miners will face this type of charge.

Responding to criticism over the use of the doctrine, National Prosecuting Authority spokesman Frank Lesenyego defended the charges: "It's the police who were shooting, but they were under attack by the protesters, who were armed, so today the 270 accused are charged with the murders" of those who were shot, he told Associated Press.

However, legal experts dispute the prosecutor's interpretation of the law. Pierre de Vos, a legal professor at the University of Cape Town, said: "The NPA seems wrongly to conflate allegations that the miners provoked the police with allegations that the miners themselves incited the police to shoot at them because they had the intention to commit suicide by getting the police to kill them."

Drawing parallels with an earlier era, De Vos emphasises that this is a law which was once deployed by the Apartheid state to secure criminal convictions against black protest leaders. Its resurrection in the miners' case, he argues, is a "shameful" reminder of the past. · 

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