The Most Common of Purposes

by Jessie

I’m sure you saw the Marikana shooting[1]. And I’m sure you were shocked. And then you were more shocked when you heard that the protestors were being charged with murder[2]. And then shocked again when they brought up the A-Word[3].

And then the murder charges were dropped suddenly. Then the shock turns to puzzlement and puzzlement to apathy.

Let’s change that to empathy.

The Marikana protests [4] saw around 3000 miners striking, armed with knopkierries[5] and machetes. The police (also numbered around 3000) then broke them up into smaller groups in order to arrest them.

On the footage there is confusion during the attempted arrest where tear gas canisters are let off, rubber bullets are fired, some shooting is heard and then a mass shootout until policemen everywhere started calling “cease fire”!

As a result of this 34 miners were killed.

Who killed them? Who is responsible?

So commissions of enquiry have arisen and charges were placed. And the protestors were charged with murder (“it’s a bloody murder”[6]) of their fellow strikers.

Now if you saw the footage or have read the article, you saw/heard that the police were the ones who opened fire onto the protestors, leaving the 34 dead.

How can anyone be charged with murder if they weren’t the actual ones pulling the trigger? Welcome to the common purpose doctrine.

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.[7]

This doctrine is basically crime-by-association (or common cause). If you were in a group of protestors, one of which had a gun, and you knew about the gun, and then he shot with that gun, then you as a group member can be held accountable for that shooting. (You can see how useful this was in Apartheid to arrest leaders of organisations- like the ANC- by linking the leaders to protests/ killings and getting them locked up indefinitely without trial[8].)

In this case, it’s not that easy. It’s more along the lines of, if you knew about the guy with the gun, and he shot with the gun, then you as a group member would be responsible for the police firing back at him and killing your comrades. Basically, you knew about his gun and should have foreseen that he might shoot it and they might shoot back and someone in the group might die.

But remember, in South Africa we have the common law system which binds a court to particular courts’ judgments. And then we see the glimmering hope of the Constitutional Court[9] judgment in Thebus and Another v S[10] which narrows the requirements for the common purpose doctrine.

The accused:

                     i.            was present at the scene where the crime took place

                   ii.            must have been aware that the crime was being committed

                  iii.            must have intended to make common cause with those who were actually perpetrating the crime

                 iv.            must have manifested his or her sharing of a common purpose with the perpetrators of the crime by performing some act of association with the conduct of those involved in the crime

                   v.            must have had the requisite intention, which in the case of murder would require that he or she must have intended the victims to be killed, or he or she must have foreseen the possibility of their being killed and performed his own act of association with recklessness as to whether or not death was to ensue.[11]

If these do not all apply, then it’s not common purpose. The strikers never intended to kill fellow strikers and therefore all of the requirements are not met. The charge had to be dropped.

And it was.

To go read more about how this was rife during Apartheid, Pierre de Vos really breaks it down on Constitutionally Speaking.[12]

[1] If not, see below.

[3] Apartheid.

[5] Defined at http://en.wikipedia.org/wiki/Knobkierrie viewed on 3 September.

[6] Chamillionaire, this time with Hip Hop Police.

[7] The people who know exactly what they’re talking about: Jonathan Burchell and John Milton, Principles of Criminal Law, 2ed at 393.

[8] Terrorism Act 83 of 1967.

[9] Which binds all courts but the Supreme Court of Appeal.

[10] 2003 (10) BCLR 1100 (CC).

[12] Ibid.