Editor's note: Pierre de Vos is the Claude Leon Foundation Chair in Constitutional Governance at the University of Cape Town Law Faculty and writes and manages the blog "Constitutionally Speaking."
South Africa (CNN) -- News that South Africa's National Prosecuting Authority (NPA) had decided to charge 270 Marikana miners with murder after the killing of 34 of their co-workers by the police two weeks ago, have been met with shock, puzzlement and outrage, although a small group of commentators on Twitter and elsewhere have also supported the NPA decision.
Politically, the decision by the NPA seemed to have backfired. Prior to the charges of murder being brought, large segments of the public had expressed sympathy for the police and had criticized the miners for the violent nature of their protest. However, now many South Africans are asking how the NPA could charge 270 protesting miners with the murder of their fellow protesters when it is common cause that the police shot and killed the miners. What possible motive could lie behind this decision?
The NPA is relying on the doctrine of common purpose to justify its decision to charge the miners with murder. The doctrine originated in English law and was introduced into South African law via the ominously named "Native Territories Penal Code."
In murder cases, the common purpose doctrine is used to secure a murder conviction for all the members of a group who had acted with a common cause by, for example, taking part in an armed robbery -- even when only one of the members of the group had actually shot and killed the victim.
The Apartheid state often relied on this doctrine when prosecuting an entire group of people involved in political protests -- especially where such a protest led to the killing of someone deemed to be a collaborator with the Apartheid state.
In 1988, for example, 26 people were convicted of the murder of a town councilor in the North Western town of Upington on the basis of the common purpose doctrine because the court found that all 26 of the accused had been part of a crowd which congregated outside the councilor's house before the killing occurred. Fourteen of the 26 were sentenced to death, a sentence which was eventually commuted when the political situation in the country began to change.
At the time, working as a journalist, I reported extensively on this case. It was an eerie experience when several years later, as a criminal law lecturer, I discussed the common purpose doctrine with a class of students that included one of the men who had been sentenced to death for the Upington killing. This experience possibly influenced my own views on the common purpose doctrine, which I believe can easily be abused and should only be invoked in the most extreme cases.
When the scope and application of the doctrine was challenged in 2003 on the basis that it could not be squared with the Bill of Rights, the South African Constitutional Court affirmed the continued use of this doctrine in South African law -- in the case of Thebus and Another v S.
However, the court approved a more restrictive interpretation of the doctrine developed by lower courts after the end of apartheid and set stringent criteria for its use.
For the 270 miners to be convicted of murder in terms of the common purpose doctrine, the state will have to prove beyond reasonable doubt that the miners were all present at the scene of the killing and that they were aware of the killing.
Moreover, the state would have to prove that the miners all intended to make common cause with police who shot their 34 co-workers and that they had performed some act of association with the conduct of the police. Finally, the state would have to prove, at the very least, that the miners had foreseen the possibility of the killing taking place and had nevertheless recklessly associated themselves with the killing by the police.
As the miners and the police were on opposite sides of the altercation and as the 270 miners could therefore not have made common cause with the police, the common purpose doctrine is clearly not applicable in this case. In my opinion, there is therefore no prospect that the 270 miners will ever be convicted of murder on the basis of the common purpose doctrine.
It is exactly because the decision of the NPA appears to be so nonsensical and legally flawed that questions are now being asked about the motives behind this move.
Last week, South African President Jacob Zuma appointed a judicial commission of inquiry to investigate the Marikana killings and the events that led up to it. The Commission will have to determine whether anyone could potentially be held criminally liable and is authorized to recommend the prosecution of anyone deemed to have been responsible for the killings.
The decision of the NPA seems to pre-empt the findings of this Commission. It is therefore difficult not to conclude that there is an ulterior motive behind this move by the NPA.
Whatever, the motive, it has clearly inflamed an already volatile situation. Whether it will derail attempts currently under way to broker a peaceful end to the miners strike, is however, difficult to predict. But it has clearly made the task of mediators in this dispute more difficult.
The South African Constitution guarantees the independence of the NPA and -- formally, at least -- the government has no direct influence over its decisions to prosecute anyone. However, it is probably too early to say whether this fact will insulate President Jacob Zuma and his government from any possible political fallout from the decision.