Monday, September 17, 2012

No Free Speech for Malema - Are Police Abusing their Powers in Marikana? By Paul Ngobeni.



The South African government seems to have perfected the art of making incomprehensible and downright asinine decisions especially when it comes to Julius Malema.  A case in point is the announcement by the Hawks that this specialized elite police unit would investigate Malema for alleged incitement and intimidation based on an alleged complaint from Solidarity.[1]  As a constitutional democracy we must not forget that Malema’s mere expulsion from the ANC can never be used as a basis for the forfeiture of his rights as a South African citizen and a human being.   But that is a difficult proposition to accept in a society where the lines of demarcation between party and state are not clearly understood. Lamentably, it is not just the ANC but also the rest of the hypocritical so-called civil society, which has endorsed the notion that Malema is a “monster” and thus less deserving of any constitutional rights, including the rights to free speech and dignity.  Early this year, Archbishop Emeritus Desmond Tutu admonished his fellow citizens against calling Johan Kotze, a white murder and rape suspect, a “monster.”  Kotze, has appeared in court on charges of having had his ex-wife gang-raped and mutilated, and shooting her son, killing him.  With characteristic piety, Tutu stated that Kotze remains a child of God with the capacity to become a saint and shouldn’t be labelled the “Modimolle monster”.  The Archbishop Emeritus felt so strongly about this issue, he penned a special article to The Star newspaper, appealing to society to stop calling Kotze a monster.    He stated: “What is disturbing, however, is when our outrage leads us to dub the alleged perpetrator ‘the monster from Modimolle’, as the media has been doing.”    Tutu further stated Kotze may: “… indeed be guilty of inhuman, ghastly and monstrous deeds, but he is not a monster.”

But our society seems to have adopted a different standard of humanity when it comes to Malema.  Just last week, parliamentarians (including black puppets of Zille in the DA), called Malema a “monster” during their discussions with President Zuma in parliament.  Zuma ignored Tutu’s admonition and failed to insist that Malema’s right to dignity be respected.  Instead of a firm rebuke to the DA politicians, Zuma simply replied that:  I shouldn’t be blamed for somebody who has some characteristic of his own. It’s not my fault. I never participated in the production of such a person.”  It is a sad reality of our post-Mandela South Africa that serious objections are raised against describing as a “monster” a white man who mutilates his wife and solicits a bunch of criminals to brutally rape her after he shot her son to death and yet it is considered acceptable to call a black man a “monster” simply because people disagree with his politics.   This leads me to a discussion of some of the substantive legal issues emanating from the Hawks incompetent handling of the so-called Malema investigation. 

The Hawks – more formally known as the Directorate for Priority Crime Investigations (DPCI) – are an elite crime-fighting unit established in 2009 after the Scorpions (DSO) were disbanded.  I must confess that I was one of those who viewed the Concourt’s judgement in Glenister, with a dose of skepticism.  The establishment of the Hawks was itself mired in legal controversy.  In March 2011 the Concourt ruled that the 2008 SAPS Amendment Act, which established the Hawks unit and set out how it would be governed, did not meet constitutional requirements for an effective corruption-fighting body free of political influence.  By all appearances, the Hawks have now launched a publicly announced investigation of Malema for alleged crimes of incitement and intimidation.  As if to underscore the point about the Hawks’ lack of independence, the unit acted with alacrity to launch the investigation immediately after high-ranking ANC cabinet members and Zuma expressed their displeasure with Malema’s political antics in Marikana.  What is baffling about this move is that incitement and intimidation are simple or ordinary crimes routinely investigated by competent police officers almost every day without much fanfare.   Therefore, the suspicious timing of the investigation and the targeting of Malema will do nothing to allay the fear that the Hawks, like the Scorpions before them, are being used to fight partisan political battles.  Those who were vociferously calling for the NPA to defer charging the miners until after the Commission of Inquiry has completed its work (these include Cosatu, ANC leaders and so-called law professors[2]) are now deafeningly silent when the target of the police action is Malema. Why the hypocrisy and double standard in our national discourse?

Substantively, the Hawks have advanced very flimsy excuses for the investigation of Malema at this time.  Through a strategy of obfuscation and transparent falsehood, the Hawks spokesperson McIntosh Polela claimed the Hawks "are investigating charges that have been brought by Solidarity."[3]   Since when have the Hawks treated complaints against Malema by Solidarity and Afri-Forum as priorities?  Polela claims: "They have opened a case of incitement and intimidation. It has been referred to us and we are currently gathering information to help us with our investigation."  Cases of intimidation are reported to the police by domestic violence victims every day without being handed over to an elite crime-fighting unit, the Hawks, for investigation.  Our police force which was trained in apartheid crowd control methods and crime investigation is very familiar with the crime of incitement under our law – there is nothing specialized or complex about that offence.  Why abuse the state resources and why deploy specialist crime-fighters in a matter simply because Malema is involved?  Perhaps a more sinister agenda of intimidation may be afoot.

 Even assuming that everything about the Hawks' action is above board, why was it necessary for the Hawks to publicly announce that Malema is being targeted for investigation?  Obviously, the intent is to intimidate Malema through such statements, dissuade others from associating with him and to chill his political activities which continue to be a source of consternation among the political elite.   These tactics of using investigations to tarnish reputations and to scare people into retreating from public life were standard modus operandi for the disbanded scorpions (DSO) which were roundly condemned by the Khampepe Commission.  The latter found evidence that the myriad of public complaints relating to the leaking of information by the DSO were well founded.  It held that such unlawful action is unconstitutional and “causes prejudice or embarrassment to those who are the subject matter of the investigations.” Khampepe found evidence of abuse in the manner in which the DSO publicizes its work to the media “FBI style” meaning “that the DSO conducts its operations as though it were a law unto itself.”  It found such “conduct to be out of kilter with our constitution, reprehensible, unprofessional and corroding the public’s confidence in the law enforcement agencies.”   Some of us vociferously complained when Zuma’s rights to a presumption of innocence were violated, and we were justifiably outraged when Zuma’s right not to be subjected to degrading treatment were violated by the NPA Director’s public statements about the existence of a ‘prima facie case” against Zuma.   In equal measure, and for the sake of consistency and fairness, we should be outraged when the Hawks make well-timed announcements about Malema’s “investigation” to the public.

In Thint Holdings (Southern Africa) (Pty) Ltd and Another v National Director of Public Prosecutions, Zuma v National Director of Public Prosecutions (CCT 90/07, CCT 92/07) [2008] ZACC 14; 2008 (2) SACR 557 (CC); 2009 (1) SA 141 (CC); 2009 (3) BCLR 309 (CC) (31 July 2008), Mr. Zuma, who was facing corruption charges in 2008, challenged the constitutionality of search-and-seizure warrants used by the Scorpions three years earlier to gather information from the offices of his lawyer, Mike Hulley. The entire Constitutional Court, with the exception of Ngcobo, ruled the warrants to be legal.   In the process of rendering the judgment, the Concourt dealt with Zuma’s plaint that his right to privacy and dignity had been violated by the manner in which the state had unduly publicized the criminal accusations against him.  The Concourt made the following interesting observations:

 [49]  At a broad level, this issue reflects the tension between Mr Zuma’s claims to the right to dignity and the duty of the NDPP in his constitutionally-mandated role and function to prosecute crime.  The state has a constitutional obligation to protect society against serious crimes, such as corruption and fraud.

           [50]  Dignity is indeed an important right and value in our Constitution. S v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC); 1995 (2) SACR 1 (CC) at paras 144 and 328-9.  Like any other right in the Bill of Rights, it may be limited subject to section 36 of the Constitution.  The right to dignity however, does not necessarily extend to the right not to be named as a suspect, once there is a reasonable suspicion that a crime has been committed.

[51] There is currently no jurisprudence on the conflict between the right to dignity and the state’s duty to fulfil its mandate in terms of sections 179 and 205 of the Constitution. ..  But there is much on the issue of the conflict between the rights to free expression and to dignity. For a summary of developments in this area, see Currie and De Waal The Bill of Rights Handbook 5 ed (Juta, Cape Town 2005) at 383-92.  However, that jurisprudence is of no use to Mr Zuma.  One of the primary defences against defamation, viewed as an injury to one’s dignity, is the defence of truth. That Mr Zuma is suspected of alleged corruption is the truth; it does not signify his guilt.  His right to be presumed innocent under section 35(3)(h) remains untrammelled.  What the NDPP has done is therefore no more than to communicate the objective fact that Mr Zuma is a suspect in a criminal matter.  By analogy, this defence of truth could in principle apply and protect the NDPP from any interference in his constitutionally-mandated function. 

At face value, the  Concourt judgment suggests that the NPA or the police have untrammeled right to announce that persons are being investigated for alleged criminal offences even if no charges are ultimately pursued.  Such damnable practices if left unchecked can be used for the political persecution of persons targeted for investigations.  They were successfully used against Advocate Ramatlhodi, a member of the ANC's national executive committee, when he applied to the Pretoria High Court on many occasions to be admitted as an advocate.[4] Ramatlhodi’s first bid was in 2004, when it was rumoured that he was due to take over from then prosecutions head Bulelani Ngcuka.  A corruption probe involving Ramatlhodi had already been under way for a number of years.  In 2004, Judge Hekkie Daniels, based on nothing more than the pendency of such investigation,  postponed Ramatlhodi's application to be admitted as an advocate indefinitely, and ordered that the matter may not be enrolled for hearing until such time as the probe involving Ramatlhodi had been disposed of.  Nearly four years elapsed and when Ramatlhodi once again launched another bid to be admitted as an advocate, the untransformed Pretoria Bar opposed his application and asked the court for leave to intervene, stating in an affidavit that "from inquiries made to the office of the National Prosecuting Authority, a decision has been made to proffer criminal charges against the applicant (Ramatlhodi)".  That was of course, a lie by these reactionary advocates -  Ramatlhodi was never charged but the damage inflicted on him by the NPA’s misuse of the investigation process was incalculable.  Viewed with this prism, the Hawks’ public pronouncement and proposed actions against Malema call for vigilance by those who care about our constitution and those who reject misuse of state institutions for partisan political battles.  

The second issue to be scrutinized is the substantive allegations that Malema could be guilty of “incitement and intimidation” worth investigating.   It is noteworthy that Solidarity, the alleged source of the complaint is a reactionary grouping exclusively concerned with white supremacy and white special interests.  Its actions are clearly out of kilter with the constitution and it is indeed doubtful whether this outfit can recognize “incitement” even if it bit its members in the ass.  Both the Hawks and Solidarity are embarking on a politically motivated fishing expedition based on a gross distortion of the facts and the law.  To start with, Malema arrived in Marikana two days after the shooting of the miners took place – his investigation for alleged incitement can only be in reference to actions he took or speeches he made in the aftermath of the Marikana massacre.   Regarding the allegations that Malema is some opportunist hell-bent on exploiting real and imagined grievances of the miners for his own political agenda, it is noteworthy that Malema conceived of and propagated a very prescient political strategy focusing on gross exploitation of mineworkers long before there was Marikana.  To the chagrin of his ANC colleagues, Malema and the ANCYL shepherded their nationalization programme through many hostile audiences, including the news media until the matter received serious attention at appropriate ANC policy conferences.   Unleashing the Hawks to investigate Malema amidst claims of political opportunism on his part threatens to erode the public confidence in the police and to expose the Hawks as nothing more than a political strike force lacking in rudimentary independence.  It actually vindicates the judiciary which has thus far been reviled for having a political agenda that is manifested in court rulings such as the Glenister judgment.

It is undisputable that our Constitution contains the Bill of Rights, a human rights charter that protects the civil, political and socio-economic rights of all people in South Africa, including even Malema. The rights in the Bill apply to all law, including the common law, and bind all branches of the government, including the national executive, Parliament, the judiciary, provincial governments and municipal councils.  Section 16 contains detailed provisions regarding freedom of expression, and states that everyone has “the right to freedom of expression, which includes freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research.”  The only cognizable limitations to freedom of expression in Section 16  are as follows: “The right in subsection (1) does not extend to propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”  In addition, Section 17 of the Constitution states “Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.” 

The “incitement” proscribed by the constitution is not just every form of incitement – it is only “incitement of imminent violence.  Juxtaposed to these provisions of the Constitution must be the statute under which Malema may potentially be charged, that is, section 18(2) of the Riotous Assemblies Act. This provision states that:
“(2) Any person who –

(a) conspires with any other person to aid or procure the commission of or to commit; or

(b) incites, instigates, commands, or procures any other person to commit,  any offence, whether at common law or against a statute or statutory regulation, shall be guilty of an offence and liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable.”

Of course, one must also take into account other provisions of the constitution in which the rights of the complainants (Solidarity) are enshrined, that is section 12(1) of the Constitution which provides that:

'12(1) Everyone has the right to freedom and security of the person, which includes the right -
…..
(c) to be free from all forms of violence from either public or private sources;
......
(e) not to be treated or punished in a cruel, inhuman or degrading way.'

In addition to the Constitution, these rights have also been codified and acknowledged in section 1(1) of the Intimidation Act, No 72 of 1982 which provides as follows:  
(1) Any person who -
(a) without lawful reason and with intent to compel or induce any person or persons of a particular nature, class or kind or persons in general to do or to abstain from doing any act or to assume or to abandon a particular standpoint -

(i) assaults, injures or causes damage to any person; or

(ii) in any manner threatens to kill, assault, injure or cause damage to any person or persons of a particular nature, class or kind; or

(b) acts or conducts himself in such a manner or utters or publishes such words that it has or they have the effect or that it might reasonably be expected that the natural and probably consequence thereof would be, that a person perceiving the act. conduct utterance or publication-

(i) fears for his own safety or the safety of his property or the security of his livelihood, or the safety of any other person or the safety of the property of any other person or the security of the livelihood of any other person: and

(ii) ...[Sub-para, (ii) deleted by s6 of Act 126 of 1992.]

shall be guilty of an offence and liable on conviction to a fine not exceeding R40 000 or to imprisonment for a period not exceeding ten years or to both such fine and such imprisonment.'


What we must seriously interrogate here is the meaning of “incitement of imminent violence” within our Constitution.   It is tempting to use the institutions of the state to silence political dissidents especially when their hard-hitting speeches and raw organizing abilities threaten certain vested interests.  But we would do well to learn the lessons from other major democracies in this regard.   As long ago as 1924, when the Americans were targeting
a mixture of 'dangerous' Bolsheviks and anarcho-syndicalists for investigation and criminal prosecution, Justices Oliver Wendell Holmes and Brandeis spoke out against these measures designed solely to suppress unpopular speech by dissident groups or individuals.  They condemned tendency-based crimes as inimical to the protection of freedom of expression and freedom of the press embodied in the First Amendment to the United States Constitution.  Accordingly, they issued the following admonition to those who care about freedom:

              Every idea is an incitement. It offers itself for belief, and, if believed, it is acted on unless some other belief outweighs it, or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration. If, in the long run, the beliefs expressed in totalitarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way. Gitlow v New York 268 US 652 at 673.

The majority in Gitlow, expanding the “clear and present danger” test established in earlier case-law, Schenck v. United States (1919), held that states can “punish utterances endangering the foundations of government and threatening its overthrow by unlawful means” because such speech would “present a sufficient danger to the public peace and to the security of the State.”   But that approach was narrowed considerably during the struggles of the Civil Rights and anti-Vietnam War movements.  Even appeals for the overthrow of the government were to be protected 'except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action'. See, Brandenburg v Ohio 395 US 444, 447 (1969).  There the US Supreme Court reversed the conviction of a white supremacist (Ku Klux Klan) leader who gave a speech warning "that there might have to be some revengeance taken" for "continued suppression of the white, Caucasian race."  The Court held that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."  In short, the First Amendment allows punishment only of subversive advocacy calculated to produce "imminent lawless action" and which is likely to produce such action.  Under the imminent lawless action test, speech can only be denied protection under the free speech provision of the constitution if the speaker intends to incite a violation of the law that is both imminent and likely.  It is doubtful whether Malema’s call for a revolution in mining can be construed as advocacy calculated to produce such “imminent lawless action.”

While the precise meaning of "imminent" remained ambiguous in some cases, the US court dealt with the issue again in Hess v. Indiana 414 U.S. at 106 (1973).   There, the defendant challenged a conviction of disorderly conduct. The Supreme Court reversed. The facts are set out in the opinion as follows:

The events leading to Hess' conviction began with an antiwar demonstration on the campus of Indiana University. In the course of the demonstration, approximately 100 to 150 of the demonstrators moved onto a public street and blocked the passage of vehicles. When the demonstrators did not respond to verbal directions from the sheriff to clear the street, the sheriff and his deputies began walking up the street, and the demonstrators in their path moved to the curbs on either side, joining a large number of spectators who had gathered. Hess was standing off the street as the sheriff passed him. The sheriff heard Hess utter the word "fuck" in what he later described as a loud voice and immediately
arrested him on the disorderly conduct charge. It was later stipulated that what the appellant had said was "We'll take the fucking street later," or "We'll take the fucking street again."
414 U.S. at 106, 107.

The US Supreme Court clarified what constitutes imminent lawless action.  In the court’s view, the speech involved in Hess “was not directed to any person or group of persons” therefore “it cannot be said that [the speaker] was advocating, in the normal sense, any action.” The Court also said that “since there was no evidence, or rational inference from the import of the language, that [the speaker’s] words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had a ‘tendency to lead to violence.’”  The court stated that the speech “… at worst, it amounted to nothing more than advocacy of illegal action at some indefinite future time. This is not sufficient to permit the State to punish Hess' speech.”   The court concluded that for the speech to lose First Amendment protection, it must be directed at a specific person or group and it must be a direct call to commit immediate lawless action. The time element is critical.  In addition, there must be an expectation that the speech will in fact lead to lawless action.

The test articulated in the cases mentioned before and the specific provisions of our constitution make it abundantly clear that it would be an uphill battle for the state to charge Malema based on a nebulous theory of “incitement” borrowed from apartheid criminal justice system.  Arguably, our constitution has a more  exacting standard in that it requires that the incitement not merely be advocacy of some illegal action at some point in the future, it must be “incitement of imminent violence” not simply advocacy of illegal action at some indefinite future time. 

The political context of speech is also very important.  In another US case,
NAACP v. Clairborne Hardware, 458 U.S. 886 (1982),  the court reversed a judgment of the Mississippi Supreme Court for damages arising out of a boycott and other activities against two corporations, their leaders and 144 individuals who participated in the boycott. The theory of the Mississippi Supreme Court was that the defendants had entered into an illegal conspiracy to use force and violence. The Mississippi Supreme Court stated: “The agreed use of illegal force,
violence, and threats against the peace to achieve a goal makes the present state of facts a conspiracy.”  The defendants were identified as (a) "managers" -79 individuals who regularly attended meetings and 11 persons who took leadership roles; (b) 22 members of the "Black Hats" -- a special group organized to enforce the boycott and 19 individuals who were "store watchers"; and (c) 16 individuals for whom there is direct evidence of participation in violence. Charles Evers was alleged to be liable because he threatened violence.  The United States Supreme Court held that the boycott was a form of speech protected by the First and Fourteenth Amendment and emphasized the importance of freedom of association.   The Court found First Amendment protection for the NAACP's practice of writing down names of blacks who violated a boycott of certain white businesses, and then reading them aloud at NAACP meetings.  The Court held further that the right of association does not lose all constitutional protection merely because some members of the group may have participated in conduct that itself is not protected. Id. at 908.  It did not matter that some of the people whose names were read out may have felt intimidated.  In specific regard to Evers’ protected speech, the Court ruled as follows:

While many of the comments in Evers' speeches might have contemplated "discipline" in the permissible form of social ostracism, it cannot be denied that references to the possibility that necks would be broken and to the fact that the Sheriff could not sleep with boycott violators at night implicitly conveyed a sterner message. In the passionate atmosphere in which the speeches were delivered, they might have been understood as inviting an unlawful form of discipline or, at least, as intending to create a fear of violence whether or not improper discipline was specifically intended.
Id. at 458 U.S. at 927.

The Court also found that Evers’ statement to the effect that, "If we catch any of you going in any of them racist stores, we're going to break your damn neck"  was constitutionally protected. The Court said despite his words evidence did not establish that the speech authorized, ratified, or directly threatened acts of violence.    When viewed against the background that Charles Evers' emotionally charged rhetoric was constitutionally protected, it seems asinine to suggest that Malema’s benign rhetoric as quoted in the newspapers, can without more, constitute actionable incitement.  It is unlikely that any investigation would reveal that the speech engaged in by Malema was made under circumstances where violence would be the immediate result of the speech.   Our constitution’s protection for speech mirrors the “imminent threat” jurisprudence of the US courts – incitement of violence is prohibited and the existing general criminal law of incitement to violence inherited from our apartheid past must take proximity and degree of harm into account if they are to pass constitutional muster.

Malema’s criticism of the police and the Police Minister is also protected by the constitution.  The US Supreme Court has held that the “First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” City of Houston v. Hill, 482 U.S. at 461 (noting that “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state”).   “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989). The hallmark of the protection of free speech is to allow “free trade in ideas”–even ideas that the overwhelming majority of people might find distasteful or discomforting. Virginia v. Black, 538 U.S. 343, 358 (2003).  “A principal ‘function of free speech under our system of government is to invite dispute. Ironically, it may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.’” Johnson, 491 U.S. at 408-409 (citing Terminiello v.Chicago, 337 U.S. 1, 4 (1949)).   The police targeting of Malema after he criticized the Police Minister and the police action in Marikana also raises the specter of retaliatory action which is unconstitutional.   The unsightly scenes of police using bullying tactics in which they push and shove Malema is exactly what should not be happening in a democracy. 

A mature society also recognizes hyperbole in political speech.   In Watts v. United States, 394 U.S. 705 (1969), the US Supreme Court reversed a conviction
of a defendant for threatening the life of the President.  At a rally on the Washington Monument grounds, the gentleman stated he would refuse to be drafted into the armed forces to fight in the Vietnam war and "if they ever make me carry a rifle the first man I want in my sights is L.B.J [the President]."  The Supreme Court stated that:

We do not believe that the kind of political hyperbole indulged in by  petitioner fits within the statutory term. For we must interpret the language Congress chose "against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, or wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. New York Times Co. v. Sullivan, 376 U.S. 254, 270, 4 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964). The language of the political arena, like the language used in labor disputes, see Linn v. United Plant Guard Workers of America, 383 U.S. 53, 58, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966), is often vituperative, abusive, and inexact. 394 U.S. 708.

Our treatment of Malema and others with whom we disagree will severely test whether as a country, we have the profound national commitment to the principle that debate on public issues should be uninhibited, robust, or wide-open.  Our tolerance of vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials by Malema or anyone will be a litmus test of how far we have matured as a society since the advent of our democracy.   

Cases from another major democracy, India, are also very instructive and suggest that our gadarene rush to put pressure on Malema is a foolish move likely to backfire.   Almost fifty years ago, the Indian Supreme Court in a landmark ruling, Kedar Nath Singh vs State of Bihar, 1962 AIR 955 1962 SCR Supl. (2) 769, ruled that unless the accused incited violence by their speech or action, it would no longer constitute sedition, as it would otherwise violate the right to freedom of speech guaranteed by the Constitution.  The decision was a consolidated ruling on appeals in four cases.  In this case, Kedar Nath Sing, a member of the Forward Communist Party in Bihar, accused the Congress Party of corruption, black-marketing and tyranny and targeted Vinobha Bhave’s attempts to redistribute land. He talked about a revolution that would overthrow capitalists, zamindars and Congress leaders.  Sing is alleged to have said:

(a) “To-day the dogs of the C. I. D are loitering round Barauni. Many official dogs are sitting even in this meeting. The people of India drove out the Britishers from this country and elected these Congress goondas to the gaddi and seated them on it. Today these Congress goondas are sitting on the gaddi due to mistake of the people. When we drove out the Britishers, we shall strike and turn out these Congress goondas as well. These official dogs will also be liquidated along with these Congress goondas. These Congress goondas are banking upon the American dollars and imposing various kinds of taxes on the people to-day. The blood of our brothers- mazdoors and Kishanas is being sucked. The capitalists and the zamindars of this country help these Congress goondas. These zamindars and capitalists will also have to be brought before the peoples court along with these Congress goondas.”

(c) “The Forward Communist Party does not believe in the doctrine of vote itself. The party had always been believing in revolution and does so even at present. We believe in that revolution, which will come and in the flames of which the capitalists, zamindars and the Congress leaders of India, who have made it their profession to loot the country, will be reduced to ashes and on their ashes will be established a Government of the poor and the downtrodden people of India.”. . . .


The court stated:
   
 "[C]riticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order."

The Court, while upholding the constitutionality of the judgement distinguished between “the Government established by law” and “person’s for the time being engaged in carrying on the administration”. The Court distinguished clearly between disloyalty to the Government and commenting upon the measures of the government without inciting public disorder by acts of violence:

              Government established by law is the visible symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted. Hence the continued existence of the Government established by law is an essential condition of the stability of the State. That is why ‘sedition’, as the offence in s. 124A has been characterised, comes under Chapter VI relating to offences against the State.

              Hence any acts within the meaning of s. 124A which have the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence.

              In other words, any written or spoken words, etc., which have implicit in them the idea of subverting Government by violent means, which are compendiously included in the term ‘revolution’, have been made penal by the section in question. But the section has taken care to indicate clearly that strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means would not come within the section.

              Similarly, comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings, which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence.

The Court went on to say:

    This Court, as the custodian and guarantor of the fundamental rights of the citizens, has the duty cast upon it of striking down any law which unduly restricts the freedom of speech and expression with which we are concerned in this case. But the freedom has to be guarded against becoming a licence for vilification and condemnation of the Government established by law, in words which incite violence or have the tendency to create public disorder. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.

 Thus the Indian Supreme Court upheld the constitutionality of the sedition law, while at the same time curtailing its meaning and limiting its application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence. The judges observed that if the sedition law were to be given a wider interpretation, it would not survive the test of constitutionality.

Having witnessed the brazenly heavy-handed tactics used by the police to prevent Malema from addressing the striking miners, I am now forced to conclude that the police may not be acting in the requisite professional manner or exercising their discretion to maintain law and order.  It is testimony to the gross incompetence of the police, especially the Hawks, that after more than three weeks of Malema’s interaction with the workers and his constant delivery of speeches, the Hawks still need to investigate what exactly Malema may have said to incite the workers.  It is inconceivable that police intelligence officials did not have these alleged violent miners under surveillance, including monitoring their invited rabble-rousing guest speakers.   Quite certainly, if the Hawks had some other evidence that would bring Malema’s actions within the scope of the prohibitions of the incitement or intimidation statutes, they would have obtained a lawful court order barring him from the area or effected his arrest.   There is a reason why they have failed to do so - most of Malema’s public pronouncements so far, either singly or cumulatively, simply do not come even close to making a case for incitement or intimidation.   Malema is reported to have said: "President Zuma decided over the massacre of our people. He must step down."  That may be insulting to Zuma but it is not a crime. He also said Mthethwa should also resign because the police shot people under his command.  Malema demanded: "He must resign because he failed in executing his duties."  Again, legitimate political speech which is fully protected under the Constitution.  Further, Malema told the crowd that the police were supposed to protect them and not kill them. "It has never happened before that so many people were killed in a single day and it became normal," he said.  There is truism in that as well – respectable members of society including ANC ministers have made similar statements.  Malema, who pledged his support for the striking mineworkers urged them not to retreat and to stand firm on their demand for a R12 500 salary.  He said the reason the police shot at the people was because they were protecting the interest of ANC National Executive Committee (NEC) member, Cyril Ramaphosa, who he said owned shares in Lonmin. "Lonmin had a high political connection that is why our people were killed. They were killed to protect the shares of Cyril Ramaphosa," he said.  Some might view such utterance as evidence of Malema going off the deep end and resorting to far-flung conspiracy theories.  Surely, hurling personal insults at Ramaphosa and associating him with murder may be Malema’s retaliation for Ramaphosa’s ruling confirming Malema’s expulsion from the ANC, but Malema’s retaliatory statement in itself is not incitement of imminent violence.   Malema told the gathering that it was amazing that Ramaphosa was able to buy a buffalo for R18-million, but could not pay them the R12 500 they were demanding.  He called on the mineworkers to form a militant union that would represent their interests.  He said that the National Union of Mineworkers (NUM) was no longer a union that represented the interests of the workers, but was more interested in making money. "NUM is not a union, it's a company. They hold shares in mining companies, that is why, when there are problems in the mines, they are the first to sell out the workers." [5]  All of these statements are quintessential political speech and are fully protected in our constitution unless they cross the line and veer into “incitement of imminent violence.”

The answer to Malema’s antics should be more democratic discourse and debates not less, we should open the space for more free speech and debate as opposed to retreating behind the wall of paranoid rhetoric  in which the government seems to suggest it is willing to deploy the police with their Nyalas accompanied by a retinue of SANDF soldiers simply to deal with Malema as an individual.   Not surprisingly, none of the so-called civil society organizations have come to the defence of the constitution simply because it is Julius Malema’s free speech rights being violated.  Organizations that braved cold winters and rain to protest against alleged government secrecy bills are unwilling to stand up for free speech under circumstances where the police have brazenly prevented the exercise of the Section 16 and 17 rights of both the workers and Malema.   It appears that most of the civil society groups which are dominated by white leadership exists to champion the rights of only white citizens against alleged or perceived oppression by the ANC-led government.  Persons including judges perceived to be anti-ANC are hailed as heroes unless it is Julius Malema.    Police officers should never have been given the unbridled licence to ban Malema from entering a stadium in which workers were gathered to hear him speak.  Ironically, organizations that were very upset and went to court over the denial of a visa to Dalai Lama are now spineless and lack the moral courage to defend the rights of South African citizens to freedom of expression, which includes “freedom to receive or impart information or ideas” under our constitution.




[1] See, http://www.thenewage.co.za/61300-1025-53-Union_charges_Malema Solidarity stated on 6 September 2012 that its action to press charges resulted from Malema’s comments that he believed mines in the country should be made ungovernable.  Another spokesperson for Solidarity, said Malema’s statements about a “mining revolution” were cause for concern.

[2]  See, Open Letter to NDPP Jiba-The Politics of Prosecutorial Independence. By Paul M. Ngobeni: http://constitutionalcrossroads.blogspot.com/2012/09/open-letter-to-ndpp-jiba-politics-of_2595.html

[4] See, Scorpions decide to charge ex-Limpopo premier over graft. http://www.security.co.za/fullStory.asp?NewsId=10800

[5] I borrowed this rendition of the facts from the article: Hawks to probe Malema over violence at SA's mines http://mg.co.za/article/2012-09-16-hawks-to-investigate-malema-for-inciting-violence-at-mines

Friday, September 7, 2012

Open Letter to NDPP Jiba-The Politics of Prosecutorial Independence. By Paul M. Ngobeni



Dear Advocate Jiba:

Greetings and exchanges of pleasantries are luxuries that must be dispensed with at this critical juncture.   In commenting on the NPA’s handling of the Marikana tragedy I am taking advantage of my position as an outsider viewing your predicament from a detached standpoint and from a distance.  Quite naturally I am also suffering the severe disadvantage of getting information from indirect sources, highly biased newspaper accounts and reports of partisan attacks on yourself by politicians, self-anointed experts and by spin-doctors.   On a personal level, this letter is difficult for me because I have sense of solidarity with the miners and wholeheartedly support their demand for decent wages– I come from a family of mineworkers and my first real job in life was working underground as coal miner during my teenage years.  I do not claim to have intimate acquaintance with the circumstances leading up to the shooting of the miners.   Nor do I claim to have access to the information you reviewed before your decision to prefer murder charges against the miners. I must take the advantages and disadvantages of my position as I find them, and do the best I can in making a modest contribution to the debate involving fundamental constitutional issues such as prosecutorial independence.  Besides the theoretical issues there are practical matters regarding the breadth of the prosecutor's discretion under our law.  Section 179 of the South African constitution says that the buck stops with you as the NPA director and you cannot shirk this decision-making responsibility by caving in to the demands of politicians and activists. 

I am forced to commiserate with you in your current situation.  At the same time I am reminded of the sagacious statement by then Deputy Minister of Justice and Deputy Attorney General of Canada, Morris Rosenberg, who in an address during the XXth Annual Conference of the Canadian Federal Prosecution Service in June 2000, said:

“Carrying out the duties of a prosecutor is difficult. It requires solid professional judgement and legal competence, a large dose of practical life experience and the capacity to work in an atmosphere of great stress. Not everyone can do this. Moreover, there is no recipe that guarantees the right answer in every case, and in many cases reasonable persons may differ. A prosecutor who expects certainty and absolute truth is in the wrong business. The exercise of prosecutorial discretion is not an exact science. The more numerous and complex the issues, the greater the margin for error.”

It appears that the poisoned political atmosphere has portrayed the NPA as an entity left rudderless on a sea of uncertainty.  The NPA’s announcement that it would prefer murder charges against the miners arrested in the aftermath of the Marikana massacre provoked irate Pavlovian responses from politicians, social activists, academics, pseudo-intellectuals and ideologues who are simply parroting the language of their political masters.   The subsequent withdrawal (albeit provisional) of the charges was also met with approval by mostly political parties amidst extravagant claims of victory especially by those who claimed the NDPP had complied with their demands – the NPA had withdrawn the murder charges by a deadline arrogantly set by these persons.  The question is where do you go from here?

Even assuming you were at some point to reinstate the murder charges against the miners, would the public be reassured that the charging decisions were made without regard to political hints, directions and influence?  Given that there were police officers, security guards and other innocent citizens murdered by some of the miners, is the public interest served by announcing a blanket withdrawal of the murder charges simply because the NPA’s detractors say so and friendly forces are suggesting it?   Ironically, there is a distinct possibility of injustice and mischief being perpetuated by the NPA retreating from the common purpose doctrine.  Notwithstanding the fulminations of naysayers, the original object and purpose of the doctrine was to overcome an otherwise unjust result which offended the legal convictions of the community. By de-emphasizing the element of causation in criminal liability and even replacing it, in appropriate circumstances, with imputing the deed (actus reus) which caused the death to all the co-perpetrators, the doctrine was deemed a suitable tool for dealing with situations of mob violence, gang conspiracies and organized or pre-planned crimes.   Against this background, it would be naïve for anyone to expect that your decisions would be without controversy – even the family of those police officers, security guards and other innocent citizens murdered by some of the protesting miners may justifiably feel let down by your current decision.

It is highly irresponsible and slanderous for others to suggest that you Advocate Jiba, a dedicated public servant, perceive your role as being the protection of Zuma and Mthethwa.   Are these unwarranted attacks perhaps telling examples of how some arrogant whites believe that blacks are too dumb to discern constitutional principles – the underlying racist assumption being that these blacks in higher positions are not deserving of their positions.  It is assumed that these blacks are forever beholden to the person who appointed them and as such are incapable of independent action or fidelity to the constitution which is the supreme law of the land. 

Charging decisions are generally within the prosecutor's exclusive domain.   From time immemorial, the courts have always been deferential in this area and have ruled that the prosecution is always the dominus litus (master of its case) and as such is entitled to select from the menu the charges it brings against an accused and what charges to abandon.   In the Marikana case, the public is being urged to ignore this hallowed principle.  That is wrong - as a country, we should avoid creating broad rules that limit traditional prosecutorial independence and should be wary of second-guessing prosecutorial choices, especially when a case is at its incipient stage.  Outsiders and even judges do not know which charges are best initiated at which time, which allocation of prosecutorial resources is most efficient, or the relative strengths of various cases and charges. Categorical limitations on certain charging theories may force prosecutors to bring charges they ordinarily would not, or to maintain charges they would ordinarily dismiss as on-going investigations uncover more information. Such rules thus constitute not only an impermissible intrusion into what is properly the prosecutor's exclusive domain but they may over-politicize the criminal justice system with disastrous consequences.

Having said this, we must bear in mind that Courts throughout the world have emphasized the prosecutor’s duty and unique role in assuring that an accused receives “fair play and decency” in the judicial process.  The Canadian Supreme Court in R v. Stinchcombe [1991] 3 S.C.R 326. At page 333 stated:
            “It cannot be over-emphasised that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings."
 In a similar vein, the House of Lords declared: " [I]t is "axiomatic" "that a person charged with having committed a criminal offence should receive a fair trial and that, if he cannot be tried fairly for that offence, he should not be tried for it at all." R v Horseferry Road Magistrates' Court, Ex .p.Bennett[1994] 1 A.C. 42 at 68.   As the US Supreme Court stated in Brady v. Maryland, 373 U.S. 83, 87 (1963), “[s]ociety wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.”  Members of society have every right to condemn prosecution actions which reduce criminal trials to mere gamesmanship and rob them of their supposed search for the truth.   Even under apartheid, there was in theory acceptance of the foregoing principles, notwithstanding the fact that they were despicably violated in practice.  It was accepted as part of South African law that a public prosecutor must display the highest degree of fairness to an accused. Mofokeng 1992 (2) SACR 261 (O) at 264C.  It was also accepted that it is not the task of the prosecutor to seek to secure a conviction at all costs. In Jija 1991 (2) SA 52 (E) at 68A it was said that a prosecutor ‘stands in a special relation to the Court. His paramount duty is not to procure a conviction but to assist the Court in ascertaining the truth…’    In Nteeo 2004 (1) SACR 79 (NC) 81b-g Kgomo  JP said that the following regarding a prosecutor’s duty:

‘A prosecutor must dedicate himself to the achievement of justice... He must pursue that aim impartially. He must conduct the case against the accused person with due regard to the traditional precepts of candour and absolute fairness. Since he represents the State, the community at large and the interests of justice in general, the task of the prosecutor is more comprehensive and demanding than that of the defending practitioner…Like Caeser’s wife, the prosecutor must be above any trace of suspicion. As a ‘minister of the truth’ he has a special duty to see that the truth emerges in court … He must produce all relevant evidence to the court and ensure, as best he can, the veracity of such evidence... He must state the facts dispassionately. If he knows of a point in favour of the accused, he must bring it out … If he knows of a credible witness who can speak of facts which go to show the innocence of the accused, he must himself call that witness if the accused is unrepresented; and if represented, tender the witness to the defence... If his own witness substantially departs from his proof [witness statement], he must, unless there is special and cogent reason to the contrary, draw the attention of the court to the discrepancy, or reveal the seriously contradictory passage in the statement to the defending practitioner …’ (emphasis added and citations omitted).

Truth be told, outsiders cannot at this stage of the Marikana case claim to have all the facts and the evidence available to the prosecutor at the time she made the charging decision.  We do not have the foggiest idea as to whether police intelligence operatives had infiltrated the striking workers or whether the actions of the errant strikers were video-taped or whether some informants amongst them have produce sufficient quantum of evidence to justify the NPA ‘s reliance on the doctrine of common purpose.  Case law has made it clear that  the specific rule governing prosecutorial charging decisions and litigation choices gives courts only a limited supervisory power over such decisions. Even the trial court cannot second-guess the prosecutor’s decision or take a crystal ball gaze into the prosecution’s case and go to the extent of  telling the prosecution which theories will make the case winnable or which witnesses will be best for its case – that would even compromise its role as a neutral arbiter.  S v Mosoinyane 1998 1 SACR 583 (T) 594h.  It was wrong for you to cow-tow to the cowardly demands of the critics here.  If the common purpose doctrine is indeed the discredited doctrine born stinking out of the thighs of apartheid, why have the lawyers representing the miners failed to bring appropriate applications before the court for the dismissal of the murder charges?

What about those critics fulminating that the common purpose doctrine is a relic of the apartheid past that has no place in our democracy and that you acted hastily in pressing the murder charges?  I happen to know that a prosecutor is not endowed with infinite resources (time, finances, personnel) to charge every suspected malefactor using every conceivable legal theory. In picking and choosing, the prosecutor must within the limits imposed by a set of rules and conventions, act in a fair and even-handed manner. But prosecutors do not go about their duties in a mechanical fashion and cannot be expected to function as bloodless automatons.  They may make decisions about viable legal theory, make judgments about dangerousness, set priorities, and give heightened attention to cases which inspire a sense of outrage. As discussed in this letter, the NPA’s decision on the Marikana case illustrates the danger of politically motivated attacks on the prosecution particularly on matters that fall squarely within the encincture of her prosecutorial discretion. Published reports indicate that in the days leading up to the tragic shooting of the miners, policemen, security guards and other innocent citizens were murdered by some of the miners.  The NPA has a perfect right to scrutinize this case and to determine whether society's interests call for the deployment of its vast legal arsenal including the common purpose doctrine.   It is patently unfair to question the honorableness of the prosecutors' intentions and to launch personal attacks on her under the guise of critiquing the likely efficacy of the NPA strategy.

The fast-moving tragic events flowing from the shootings of strikers at Marikana clearly dramatized for some of us the culmination of developments we have been concerned about for quite some time.  The stakes in the struggle for control of the judiciary and prosecuting authority by the opposition forces are phenomenally high. Rest assured that the highly personal and vituperative attacks on you, the acting NDPP, are not born out of sheer coincidence – they emanate from a broader agenda which involves misusing clearly established legal principles to undermine those independent-minded blacks heading the judiciary and the prosecution services.  A manifestation of these stratagems was the relentless and high-tech lynching of Judge President Hlophe and Menzi Simelane, your predecessor.  These tactics include even the recruitment of or roping in senior ANC members to publicly attack or criticize blacks in these positions.   Blacks who dare to stand up to these bullying pressure tactics inevitably find themselves being vilified and forced to exit positions as was the case with the indomitable Jimmy Manyi.   It is through the pursuit of such lynch-mob agenda that your predecessor Simelane was pilloried and ultimately placed on indefinite suspension.

It is indeed a severe understatement to characterize your position as ‘difficult” – it is an unenviable position because you are the subject of verbal assault by a surprising rag-tag army of vocal political activists (mostly whites), self-hating blacks who prey on gullibility, fear and myths about police conduct in the Marikana tragedy.  They are hell-bent on pursuing their political agenda at all costs, demonizing ideas and people alike.  Fortunately, the sheer political weight that has brought to bear upon you has actuated us to undertake the task of exposing the opportunist and unprincipled nature of those who masquerade as paragons of constitutional law and democracy in this country.  Tragically, these attacks and the concomitant stance of ANC politicians expose the disarray and dysfunctional nature of the ANC in the run-up to Mangaung.  The ANC seems to be willing to jettison bitter lessons learned in the post-Polokwane era and appears to be on the way towards replicating the mistakes of the Mbeki era.  RW Johnson’s article “Massacre at Marikana” offers incisive analysis and exposes the intractable nature of the problems you are likely to encounter.[1]

Lest we forget, a court judgment implicating a President Mbeki’s interference with the prosecution of his then political rival, Jacob Zuma and that of former police commissioner triggered an unprecedented recall of the president Mbeki in what others have termed a “coup.”  In short order, the ripple effect of the recall was a split of the ANC and the departure from the organization and government of some of its talented and brilliant intellectuals.  In an ironic twist, you are now ensconced in your current position (Acting NDPP) because Simelane, the man subsequently appointed by President Zuma in the NDPP position, was a victim of the political fall-out from the controversy surrounding Mbeki’s recall for alleged interference with prosecutorial independence.  Simelane is currently under suspension because of a court judgment stating that he should never have been appointed NDPP because of the findings of a Ginwala Enquiry (GE) which accused him of showing scant regard for prosecutorial independence.    

Remarkably, an outfit calling itself Council for the Advancement of the South African Constitution (CASAC) has issued a statement on 31 August 2012, condemning “the National Prosecuting Authority (NPA) for acting in a partisan, perverse and irrational manner in preferring charges of murder against the 259 people arrested at Marikana for the deaths of the 34 people killed in the Marikana Massacre on 16 August 2012.”  In a perverse display of crocodile tears, CASAC assiduously avoids mentioning the police officers and security guards murdered by some of the miners and declares itself to be “shocked that the NPA has seen fit to make use of the notorious legal concept of "common purpose" to lay these charges and thereby seek to lay the blame for the massacre at the hands of the protesting workers.”   Without being inconvenienced by any sense of shame for advocating naked political interference with the independence of the NPA, CASAC called on “President Zuma to suspend the Acting National Director of Public Prosecutions, Adv Nomgcobo Jiba in terms of section 12 (6) (a)(i) of the National Prosecuting Authority Act, No 32 of 1998 on the grounds of misconduct.” But CASAC is not alone in its misguided and politically motivated attacks on the NPA as shown below.  

            A.        The Minister’s Demand For Explanation.

Before we get to a discussion on the substantive claims behind these partisan attacks, what must one make of the actions of the Justice Minister Radebe?  Upon learning of the NPA’s announcement that the miners, who were initially charged with public violence, would also face murder and attempted murder charges for the deaths of their colleagues, Radebe announced that he had “requested the acting National Director of Public Prosecutions (NDPP), advocate Nomgcobo Jiba to furnish me with a report explaining the rationale behind such a decision.”   Radebe purported to rely on Section 179 (6) of the Constitution reads: “The Cabinet minister responsible for the administration of justice must exercise final responsibility over the prosecuting authority’.”  Radebe said in the statement that “there is no doubt that the NPA’s decision has induced a sense of shock, panic and confusion within the members of the community and the general South African public. …It is therefore incumbent upon me to seek clarity on the basis upon which such a decision is taken.” 

South African law cautions against Ministerial meddling in the criminal prosecution of cases. Unfortunately law professors and politicians who have never tried a criminal case in their life suffer from one common disadvantage - what they know is typically based on law review articles and newspapers accounts.  A person familiar with the criminal process and trials would never have bought into the hysterical reaction of those attacking Advocate Jiba for the exercise of prosecutorial discretion.  The Marikana miners were arrested without warrant in accordance with the provisions of the law based on police officers’ reasonable suspicion of the miners having committed an offence, to wit public violence and murder.  The test whether a suspicion is reasonably entertained within the meaning of the law is objective. S v Nel and Another 1980(4) SA 28 (E) at 33H.  Although the information at the police’s disposal must be of sufficiently high quality and cogency to engender in them a conviction that the suspects are fact guilty, the law only requires suspicion not certainty. However the suspicion must be based on solid grounds. See Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654 (SE) at 658.   It is instructive that no one has questioned whether the actions of Marikana police satisfy the criteria of reasonableness as set out in Section 40 of the Criminal Procedure Act No 51 of 1977 and as amplified and given content to by the dicta of our Courts.  It appears that what triggered the Minister’s frantic request for explanation or rationale for the NPA’s decision to charge was the mere fact that “there is no doubt that the NPA’s decision has induced a sense of shock, panic and confusion within the members of the community and the general South African public.  But that is not the lawful criterion – the miners have been lawfully arrested by the police based on reasonable suspicion of criminal conduct.  Probable cause exists when police officers, relying on reasonably trustworthy facts and circumstances, have information upon which a reasonably prudent person would believe the suspect had committed or was committing a crime. Probable cause does not require the quantum of proof necessary to convict. Probable cause is a common sense, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.  Because reasonable suspicion does not necessitate a certitude, there is no requirement that the facts on which it is grounded be unfailingly accurate.  The prosecution formulate charges based on reports from police officers carrying out an arrest - a police officer is not required to possess the clarity of vision that arises only in hindsight.  Predictably, your critics have not made their case based on adroit marshaling of the facts- they insist on a distorted version of the facts and urge everyone to evaluate such manufactured facts in splendid isolation.
 
The Minister’s actions must be in conformity with the rule of law.  I wish to point out that our legal system has remedies in the event the NPA erred in its choice of legal theory or where the NPA’s case suffers from lack of evidence to sustain any of the charges.  The most well-known of these is application for discharge of accused at close of State’s case which may be done in accordance with Criminal Procedure Act, Act 51 of 1977, s.174 .  The statute states: “ If at the close of the case for the prosecution at any trial, the court is of the opinion that there is no evidence that the accused committed the offence referred to in the charge or any offence of which he (or she) may be convicted on the charge, it may return a verdict of not guilty.”  As the section explicitly recognizes: the state bears the onus of presenting sufficient evidence before the Court in order for the Court to call on the accused person to defend himself or herself. If at the close of the State case there is no case for the accused to answer, he or she must be acquitted. The accused must not be put on his or her defence in the hope that his or her evidence would supplement the State case. Thus, firmly embedded in s. 174 are the onus of the State to call sufficient evidence to prove its case and the discretion of the Court not to put the accused on his defence if there is no case for the accused to answer.  This Section 174 essentially means if a person ought not be prosecuted where there is absence of a minimum of evidence on which he or she might be convicted, but only in the expectation that at some stage he or she might incriminate himself or herself, then prosecution must cease when evidence falls finally below that threshold.[2]  The other alternative is application for a permanent stay if the prosecution has abused or is abusing the court process.  My concern her is that we need clear objective standards governing when Ministers may intervene to request information or articulation of the NPA’s rationale in ongoing cases – it should never be based on politically orchestrated reaction to an arrest, especially where court procedures provide the NPA to articulate its rationale before an impartial court at a later point .

As you know, in the Mbeki-Selebi saga, similar requests by the President and the Justice Minister led to a constitutional crisis.   Simelane drafted a letter and a Minister took ownership of the letter drafted by Simelane – she endorsed it as a true reflection of what she wished to communicate to Pikoli and appended her signature to it.  Pikoli provided the information requested, his attitude was, clearly within his powers, that the Minister could not give him any instructions not to proceed with the steps he had taken.  The Minister, thereupon, on 23 September 2007 requested him to resign. Pikoli obstinately refused and was later informed by the President that he would suspend him if he did not resign. Pikoli again declined, whereupon, Mr. Mbeki then, purportedly in terms of section 12(6)(a)(i) of the NPA Act, suspended him.  Mbeki stated: "This decision was taken on the basis of an irretrievable break down in the working relationship between the Minister of Justice and Constitutional Development and the NDPP."

You may recall that when the chips were down in the Pikoli-Selebi matter, neither Mbeki nor Mabandla, the Minister of Justice, ever owned up to their role in the alleged improper request to Pikoli.   Instead, the incompetent Ginwala commission ruled that the “…conduct of the DG: Justice in drafting the document in the manner it reads was reckless to say the least. The DG: Justice should have been acutely aware of the constitutional protection afforded to the NPA to conduct its work without fear, favour or prejudice. The contents of the letter were tantamount to executive interference with the prosecutorial independence of the NPA, which is recognised as a serious offence in the Act.”  Ginwala and later Navsa in the SCA flagrantly ignored Section 92 of the Constitution which entrenches the doctrine of ministerial responsibility into law.  The Constitution makes pellucid that members of the cabinet are accountable collectively and individually to Parliament for the exercise of their powers. Most importantly, all cabinet members have a non-delegable duty to “act in accordance with the Constitution.”  This means that ministers are individually responsible for the conduct of that part of the executive of which they are in charge.  Accordingly, the executive or members of cabinet cannot defend against charges of unlawful or unconstitutional behavior by saying that they either did not have knowledge of or did not participate in the transgressions of the individual minister.  Certainly blaming it on some hapless civil servant is prohibited. This means that in Simelane’s case neither the President nor the minister may, as a matter of law, raise the spurious defence that they relied on erroneously phrased letter “prepared” by Simelane but ultimately signed by the Minister with full knowledge of its contents.  In terms of this doctrine the ministers are the ultimate can-carriers for everything done by the civil service in their name.  

In the politically charged atmosphere, Ginwala and later Navsa of the SCA also violated Section 197(1) of the constitution which states: “Within public administration there is a public service for the Republic, which must function, and be structured, in terms of national legislation, and which must loyally execute the lawful policies of the government of the day. “ This introduced in our law the notion that politicians who interfere with prosecutorial independence or knowingly sign documents doing the same can use the civil servants as the scapegoat even if the civil servant acted pursuant to instructions.  I mention this simply to highlight that your position as the NDPP is not that of an ordinary civil servant, it is one where independence is constitutionally guaranteed.   But the other concern I have is whether you might at some later point also be subjected to the treatment meted out to Simelane and be blamed for the Minister’s request to you for explanation or rationale of your decision to press murder charges.

With a sense of déjà vu the case of Zuma v National Director of Public Prosecutions, and the lively debate it sparked over prosecutorial independence spring to mind.  In that case, President  Zuma submitted that there was a conspiracy in government to prevent him from becoming the next president of South Africa and, consequently, irregular political pressure on three successive National Directors to prosecute him.  The NDPP requested the High Court to strike out the allegations of political interference in the case and the court declined. Referring to the questionable role of the Minister of Justice throughout the Zuma case and in the suspension of Pikoli, the court found that there was indeed political interference.  Judge Nicholson  adopted a very strict view regarding prosecutorial independence and elaborated on that theme by stating that prosecutors are required to “exercise an independent, objective, professional judgment on the facts of each case” and are not to allow “their awareness of political and public opinion to sway their professional judgment. It is a grave violation of their professional and legal duty to allow their judgment to be swayed by extraneous considerations such as political pressure.  It followed inexorably therefore that there was a proscription of decisions to prosecute made under political pressure, or influence, or those that were motivated politically, rather than by an objective review of proper prosecutorial considerations.  Nicholson placed heavy emphasis and reliance on the NPA’s prosecution policy, as well as the code and directives. They posit a prosecution model which is “totally independent of political influence and which prosecutes fairly, consistently and without fear or favour to anyone.”  Nicholson also cited, with approval, S v Yengeni. 2006 (1) SACR 405 (T), which also dealt with the issue of the constitutional guarantee of prosecutorial independence.  Nicholson referred to statements by Bertelsmann and Preller JJ that:

[I]t was indubitably ill-advised for the former National Director of Public Prosecutions to be seen to participate in a discussion with the Minister and the appellant. The independence of the office that he held, and the fearless and unfettered exercise of the extensive powers that this office confers, are incompatible with any hint or suggestion that he might have lent an ear to politicians who might wish to advance the best interests of a crony rather than the search for the truth and the proper functioning of the criminal and penal process. Id. at para 56.

Nicholson remarked that the Yengeni Court further sanctioned the Minister’s involvement in the discussion, saying it was ‘unwise … precisely because it might create the perception that he was exerting improper political pressure on the [NDPP]’ Id. Clearly, any intervention by the Minister regarding an individual case being pursued by the prosecuting authority would create an appearance of improper interference.  If the prosecuting authority is to be able to exercise its functions ‘without fear, favour or prejudice’ there can be no risk, or appearance of a risk, that the decision whether or not to prosecute an individual case is being made on the basis of political favour or advantage.  The NDPP must be able to institute criminal proceedings against anyone, regardless of their position or influence, in order to defend and uphold the rule of law. This is not possible if the Minister of Justice is able to influence the exercise of prosecutorial discretion in individual cases through subtle publicly announced demands for “explanation” or “rationale’ for pursuing a particular legal theory. In paragraphs 88 to 90 of the Zuma judgment, Nicholson acknowledges that there can be acceptable ‘relationship’ between the Minister and the NDPP which does not veer into micro-management or undue interference in individual prosecution decisions. The court dealt at length with the non-contentious principle that the NPA must not be led by political considerations and that ministerial responsibility over the NPA does not imply a right to interfere with a decision to prosecute (para 88 et seq).” 

On appeal in the Zuma case, Harms referred to the jurisprudence of Anglo-American countries and asserted that although the Minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a pending prosecution, the Minister is entitled to be kept informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority.  Judge Harms stated:   

[32] Accordingly, the Constitution on the one hand vests the prosecutorial responsibility in the NPA while, on the other, it provides that the Minister must exercise final responsibility over it. These provisions may appear to conflict but, as the Namibian Supreme Court held in relation to comparable provisions in its Constitution, they are not incompatible. Ex parte Attorney General, Namibia: In Re the Constitutional Relationship between the Attorney- General and the Prosecutor-General [1995] 3 LRC 507, 1995 (8) BCLR 1070 (SCNm).   It held (I am using terms that conform with our Constitution) that although the Minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a pending prosecution, the Minister is entitled to be kept informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority. 

  [33] The NPA Act, requires members of the prosecuting authority to serve ‘impartially’ and exercise, carry out or perform their powers, duties and functions ‘in good faith and without fear, favour or prejudice’ and subject only to the Constitution and the law (s 32(1)(a)).29 It further provides that no one may interfere ‘improperly’ with the NPA in the performance of its duties and functions (s 32(1)(b)). (‘Improperly’ may be tautologous because interference usually implies some or other impropriety.)  It reaffirms that the Minister must exercise final responsibility over the NPA and obliges the NDPP, at the request of the Minister, to furnish the latter with information or a report with regard to any case and to provide the Minister with reasons for any decision taken (s 33(2)). More directly in point is s 22(2)(c), which is the counterpart of s 179(5)(d) of the Constitution and deals with the NDPP’s review function, read with s 22(4)(a)(iii). The latter provision states that, in exercising the review power to prosecute or not to prosecute, the NDPP may advise the Minister ‘on all matters relating to the administration of justice’, which is hardly compatible with the notion that there may be no relationship between them. 

Regrettably, Harms gave a false and distorted picture of the nature of independence of the prosecutors in Anglo-American countries. A basic consideration in all countries is that decisions to prosecute, stay proceedings or launch an appeal must be made in accordance with legal criteria. Two important principles flow from this proposition. First, prosecution decisions may take into account the public interest, but must not include any consideration of the political implications of the decision. Second, no investigative agency, department of government or Minister may instruct pursuing or discontinuing a particular prosecution or undertaking a specific appeal. These decisions rest solely with the Attorney General or the NPA Director in South Africa (and his or her counsel). The NDPP must for these purposes be regarded as an independent officer, exercising responsibilities in a manner similar to that of a judge.  I am by no means accusing Radebe of undermining prosecutorial independence.  However, the problem with Radebe’s request was that it seems to be a demand for an explanation of a legal theory used as a basis for prosecution and not the allowable request for information in a neutral sense.   A prosecutor should not be forced to publicly discuss his charging decisions and the legal theory that underpins it simply because “the NPA’s decision has induced a sense of shock, panic and confusion within the members of the community and the general South African public.”  Nor should she be forced to “include any consideration of the political implications of the decision” by a Minister’s request to address a sense of “shock, panic and confusion” within the ‘general south African public.” One can even trenchantly argue that Radebe has a constitutional duty to protect the NDPP against unfounded and politically motivated attacks and should avoid active association with persons who attack the NDPP for ulterior purposes.

It is now abundantly clear that the conflicting judgments of Nicholson and Harms in the Zuma cases did not address the prosecution dilemma arising from the Marikana case – the prosecutor must not only be independent in reality but must maintain the appearance of independence.  For instance, a Minister of Justice’s right to be furnished with information and to be kept informed does not require that he exert subtle political pressure on the NDPP by attending press conferences, discussing or commenting to the media about the legal theory in individual citizen’s cases, or speculation about the viability of the prosecution and the quantum of evidence the NPA claims to have against such citizens.    In your case, the Minister’s seemingly innocuous “request” renders you susceptible to politically motivated attacks.  Adding another layer of complexity is the fact that you are “acting” and accordingly your security of tenure is not as assured as that of a person permanently in the position. Furthermore, you are required by convention to make prosecutorial decisions without regard to political considerations and by all appearances you initially made your decisions independently and did not subject your discretionary authority to that of the regime.   In theory, you are also not responsible to government to justify the exercise your discretion because the NDPP office has judicial attributes.  The Minister has a constitutional obligation to ensure that the exercise of his responsibility including request for information is done in a manner that avoids even the appearance of political pressure on the NDPP.  When all is said and done, the prosecutor must not only be independent in reality but must maintain the appearance of independence.   In your case the veers into the territory of a demand for justification and that is highly dangerous.

The unfortunate appearance created in the Marikana case is that, Radebe, actuated by pressure from tripartite alliance partners and some ANC politicians, publicly demanded from you explanation and rationale- chapter and verse – as to why you charged the miners with murder, especially based on the doctrine of common purpose.  One wonders, why was it necessary for Radebe to make his request to you public – was it perhaps a way for the Minister to distance himself publicly from a decision he deemed controversial?  As shown by research revealed in this document, the doctrine of common purpose has been used in a variety of situations involving mob violence, gang killings, organized robberies, vigilante violence and organized crime.  A democratic Parliament (of which Radebe was part) under President Mandela’s government enacted  s51 of the Criminal Law Amendment Act 105 of 1997, to provide stiff sentences for persons committing crimes while they are part of a group acting in furtherance of a common purpose.  It is a fact that our courts including the constitutional court have endorsed the constitutional validity of the common purpose doctrine.

I  trust that going forward, and for the sake of our constitutional democracy and the interests of justice, you will put your foot down and remain unshakable in the performance of your duties.  I remain confident that you are a conscientious prosecutor for whom the rule of law is a concrete and not a transient or ephemeral phenomenon.  The rule of law is not subject to plebiscites and the transient influence of opinion polls.  I am confident that you will resist extraneous influences that may be exerted openly or covertly by politicians, the media or rulers and policy makers of all kinds.  It matters not that the motives of the interlopers or policy makers may be honourable.  As Justice Brandeis warned in Olmstead v United States (277 US 438, 479 (1928)):

“Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent… The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

As Martin Luther King Jr also said: “Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will.”





B.        Whether the NPA Should Pay Deference to the Farlam Commission?

What are we to make of the assertions by Phosa, a lawyer and ANC Treasurer, statements by Cosatu, and Bantu Holomisa of the UDM to the effect that the NPA acted hastily and prematurely and should have deferred its action until the commission of inquiry appointed by President Zuma has concluded its work?  Phosa is quoted as having said: “charging the mine workers when a commission of inquiry was looking into the matter was reckless and absurd.”  Cosatu’s spokesman Patrick Craven deemed the NPA decision outrageous and baldly asserted that “it exposed the lack of proper training within the South African Police Service and the NPA for failing to find evidence and charge those responsible for the offence.”  Echoing Phosa’s statements, Cosatu also stated that the “NPA should have waited for the findings of the judicial commission of inquiry, which is tasked with uncovering the truth... before jumping the gun and laying such charges… It is showing its contempt for the inquiry and potentially jeopardising its independence and relevance by prejudging the arrested workers on the basis of their own version of the facts.”  Not to be outdone, the UDM, in an open letter to President Jacob Zuma, called for an intervention in the matter. Holomisa claimed that the “police have blocked every attempt by the mine workers to get bail because they claim that they are still busy with investigations,” and decried the fact that “the NPA has already taken a decision to prosecute the mine workers even though the investigation is incomplete.”   Just like Phosa and Cosatu, Holomisa claimed that the NPA’s decision to prosecute ”undermined the role of the commission of inquiry.”  Holomisa concluded: “We call on you (Zuma) to halt the unfair prosecution of mineworkers and to urge everyone to allow the ... inquiry get to the bottom of the Marikana massacre.” 

If our past experience with Ginwala commission and the Simelane saga is anything to go by, I can be pardoned for not sharing a sanguine outlook regarding the Farlam Commission.   As evidenced by the Simelane case, South African society, including state institutions, individual politicians and the judiciary have been exposed – they are woefully incompetent when it comes to Commissions of Enquiry.    I have compiled a 350 pages research paper on the subject but the following examples must suffice:

·      The Ginwala Commission itself stated that its mandate was an “Enquiry into the fitness of Adv Pikoli to hold office as the NDPP was established by the President acting in terms of s. 12(6)(a) of the National Prosecuting Authority Act (“the Act”)” but its findings ended up being misused as findings which rendered Simelane unfit for appointment as NDPP.  The judiciary ignored Ginwala’s own acknowledgement that the enquiry was “envisaged as neither a judicial nor a disciplinary hearing. I was not bound to apply the rules of evidence integral to a judicial process. It was necessary to establish the procedures and the rules which I did with the agreement of the parties” - the Commission’s findings were treated as gospel truth by Judge Navsa in the SCA.  Navsa stated that on the basis of the Ginwala’s findings alone (admittedly not based on any admissible evidence) Simelane was rendered ineligible for appointment as NDPP.  I wonder whether the Constitutional court to reach similar nonsensical conclusion in the pending Simelane case.

·      The GE exceeded its terms of reference as follows:  Upon receiving the GE report, former President Motlanthe (who in the meantime succeeded the re-called President Mbeki) exercised the powers he had pursuant to Section 84(2) and section 12(6)(a) of the National Prosecuting Authority Act (“the Act”).      On 8 December 2008, contrary to the recommendations of Dr. Ginwala, President Motlanthe  finally removed Mr. Pikoli from office, a decision which was eventually confirmed by Parliament.  In his “Address to the Nation” on December 8, 2008,[3] Motlanthe made it clear that he was not taking the GE report as gospel truth – he even went further to state that the Ginwala Commission did not fully perform in accordance with its mandate. The mandate of the GE was amongst other things, to make an “Enquiry into the fitness of Adv Pikoli to hold office as the NDPP was established by the President acting in terms of s. 12(6)(a) of the National Prosecuting Authority Act (“the Act”).” Also, it was not constituted as a court of law or a disciplinary tribunal charged with adjudicating the “conduct” of Simelane.  But, as former President Motlanthe recognized, the “Enquiry appears to have confined itself to the determination of whether the communicated reason for the suspension of Advocate Pikoli was legitimate rather than whether he was fit to hold the office of National Director of Public Prosecutions as was stipulated in the terms of reference.” The exercise of all public power must comply with the Constitution and the question whether the GE acted intra or ultra vires in inquiring and reporting on the matter of Pikoli’s fitness as defined in the terms of reference is a constitutional matter. (See Pharmaceutical Manufacturers Association of SA and Another: In re ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC).)  The doctrine of legality required of the GE that it comply with the Constitution as well as act within the parameters of the power conferred upon Ginwala by the Constitution and the NPA Act.   When the matter of Simelane surfaced before the SCA, Judge Navsa opted for a politically engineered solution – he ignored the fact that the Ginwala commission acted ultra vires and ignored the President’s statements showing that the Commission misapprehended its mandate.  To reach a politically palatable outcome, Section 84 of the Constitution  was ignored and Navsa ruled that Zuma had to accept the recommendations of the Ginwala and the fact that it acted ultra vires was deemed irrelevant.

·      In the case of President of the Republic of South Africa v South African Rugby Football Union (SARFU) [1999] ZACC 11; 2000 (1) SA 1 (CC) the Concourt confirmed that the President’s power to appoint commissions of inquiry is power conferred upon the president alone; it was an original constitutional power which the president exercised as a head of state rather than as head of the executive.  The court also found that the functions of commissions of inquiry were to determine facts and to advise the president through the making of recommendations.  It then added: "The President is bound neither to accept the commission’s factual findings nor is he or she bound to follow its recommendations."  Under our law even from the apartheid days, it was always accepted that the functions of a commission of inquiry are to determine facts and to advise the President through the making of recommendations. See Bell v Van Rensburg NO  1971 (3) SA 693 (C) at 705 F; S v Mulder  1980 (1) SA 113 (T) at 120 E. The President is bound neither to accept the commission’s factual findings nor is he or she bound to follow its recommendations. Minister of the Interior v Bechler and Others; Beier v Minister of the Interior and Others 1948 (3) SA 409 (A) at 455; S v Mulder, above n 113 at 120 E – F.  As the Constitutional Court stated in SARFU case, a “commission of inquiry is an adjunct to the policy formation responsibility of the President. It is a mechanism whereby he or she can obtain information and advice.” SARFU supra at para. at147.   In Simelane’s case, both Navsa and opposition politicians manufactured a perverse outcome and effectively maintained that the President’s exercise of his powers to reject the factual findings and recommendations of the Ginwala inquiry could be disregarded.  Because the President did not acquiesce in the false attacks against Simelane, Zuma’s actions were adroitly mischaracterized as “failure to apply his mind” and Simelane was deemed unlawfully appointed on the basis of this contrived reasoning.    Navsa claimed that “In failing to take the GE into account, the President took a decision in respect of which he ignored relevant considerations. By doing so he misconstrued his powers and acted irrationally.”  In short, Navsa blatantly ignored the admonition that the "President is bound neither to accept the commission’s factual findings nor is he or she bound to follow its recommendations."

In your particular situation, the question to be answered is what is the role of the commission of inquiry vis-à-vis the constitutionally delineated functions of the NPA?  Must a prosecutor who believes she has a viable case defer the prosecution of a case merely because the President has appointed a commission to investigate the same matter? What are the constitutional implications, including under Sections 34 and 35 of the Constitution if the NPA was to defer its decisions until after the conclusion of the Commission’s work? Navsa’s treatment of the GE and the impact of its report on Simelane suggest that a Presidentially appointed commission can, in violation of the separation of powers principles and the provisions of Sections 34 and 35 of the Constitution, be used to circumvent due process rights of persons.  It can be used to label individuals guilty without providing them a forum in which to clear their names.  Once the commission completes its work, adverse comments contained in its report may be misused to savage the reputations of persons and to find them guilty in the court of public opinion. Despite Navsa’s erroneous conclusions, President Zuma acted fully within the law when he gave less evidentiary weight to GE report and refused to accord it the status of a court judgment or tribunal’s adjudication report.  We must be mindful of the fact that a Commission of Inquiry is not a Court of law - it has no general power of adjudication, it determines nobody's rights, its report is binding on no one.  It follows that the reports of commissions of inquiry are, in the end, only expressions of opinion, which in themselves do not alter the legal rights of the persons to whom they refer.  If that be the case, why must the NPA be pressured into waiting for the outcome of the Farlam commission investigation?  Is that not a step on the slippery slope towards allowing the outcome of politically explosive criminal prosecutions to be derailed and determined by a president’s political intervention?

 Those who persist in this line of argument will do well to heed the admonition of a New Zealand Court, Peters v Davison 1998 NZLR LEXIS 70; [1999 2 NZLR 164 ] which eloquently describes the characteristics of a commission:
 “In opposition are basic characteristics of a commission of inquiry. Its report is merely an expression of its opinion. A commission of inquiry is not to be likened to a Court of law nor to an administrative tribunal entrusted with the duty of deciding questions between parties; there is nothing approaching a lis and the commission has no general power of adjudication (North J in Re the Royal Commission to Inquire into and Report upon State Services in New Zealand at p 109). It follows that the reports of commissions of inquiry have no immediate legal effect. Because the reports of commissions of inquiry are, in the end, only expressions of opinion, "[i]n themselves they do not alter the legal rights of the persons to whom they refer" (Cooke, Richardson and Somers JJ in Re Erebus Royal Commission (No 2) at p 653). To similar effect is the recent comment by the Supreme Court of Canada in Canada (Attorney General) v Canada (Commission of Inquiry on the Blood System) (1997) [*54]  151 DLR (4th) 1 at p 15.  

In another New Zealand case, Re Erebus Royal Commission (No 2) [1981] 1 NZLR 618, the court stated that Commissions’ reports are, “in a sense, inevitably inconclusive.” It reasoned as follows:

Findings made by Commissioners are in the end only expressions of opinion. They would not even be admissible in evidence in legal proceedings as to the cause of a disaster. In themselves they do not alter the legal rights of the persons to whom they refer. Nevertheless they may greatly influence public and Government opinion and have a devastating effect on personal reputations; and in our judgment these are the major reasons why in appropriate proceedings the Courts must be ready if necessary, in relation to Commissions of Inquiry just as to other public bodies and officials, to ensure that they keep within the limits of their lawful powers and comply with any applicable rules of natural justice.''[4]

Canadian courts have accepted the well-established principle that a Commission of Inquiry may not draw conclusions, or make recommendations regarding the civil or criminal responsibility of any person or organization. They are generally prohibited from making any findings of criminal or civil responsibility, and no such finding may be inferred from any of a Commissioner’s remarks. Such a prohibition is necessary because a commission may admit evidence not given under oath, and the ordinary rules of evidence which provide protection against such matters as hearsay do not apply to public inquiries.   Justice Cory of the  Canadian Supreme Court  in Canada (Attorney General) v. Canada (Commission of lnquiry on the Blood System) (1997), 151 D.L.R. (4th) 1, said the following about the history, nature and role of inquiry commissions in that country:

29       Commissions of inquiry have a long history in Canada, and have become a significant and useful part of our tradition. They have frequently played a key role in the investigation of tragedies and made a great many helpful recommendations aimed at rectifying dangerous situations.
...
34       A commission of inquiry is neither a criminal trial nor a civil action for the determination of liability. It cannot establish either criminal culpability or civil responsibility for damages. Rather, an inquiry is an investigation into an issue, event or series of events. The findings of a commissioner relating to that investigation are simply findings of fact and statements of opinion reached by the commissioner at the end of the inquiry. They are unconnected to normal legal criteria. They are based upon and flow from a procedure which is not bound by the evidentiary or procedural rules of a courtroom. There are no legal consequences attached to the determinations of a commissioner. They are not enforceable and do not bind courts considering the same subject matter. ... Thus, although the findings of a commissioner may affect public opinion, they cannot have either penal or civil consequences. To put it another way, even if a commissioner’s findings could possibly be seen as determinations of responsibility by members of the public, they are not and cannot be findings of civil or criminal responsibility.

This self-evident legal truism completely escaped Navsa’s attention in Simelane.  Given the incompetence which reaches very deep into the judiciary itself as exemplified by Judge Navsa’s treatment of your predecessor, Simelane one is compelled to ask whose interests would the NPA’s deferral to the Farlam commission serve other than those involved in ANC succession battles?  Given that our judiciary appears to be totally oblivious of these constitutional concerns that preoccupied the Canadian and New Zealand courts what assurances do the citizens have that this time around the judiciary and the executive will get it right? Given that the politicians and the courts have evinced willingness to let inconclusive reports and criticism of the Ginwala inquiry determine the fate of a NDPP, all in the name of holding the executive to account and protecting our constitution, why should persons called to testify at the inquiry believe that the Farlam commission will not find them guilty or make “findings likely to affect individuals in their personal civil rights or to expose them to prosecution under the criminal lawas was done to Simelane?   Any adverse findings by Farlam would constitute “severe criticism by a public officer made after a public inquiry and inevitably accompanied by the widest publicity.”  It will in turn be used as fodder in the internecine ANC succession battles or the turf was between Cosatu and AMCWU.

Another fundamental issue likely to feature prominently in the Farlam Commission is the extent to which persons appearing before the commission may invoke legal privilege.  Remember that Simelane, when appearing before the GE,  properly asserted a legal professional privilege through his attorneys - this is a privilege which applies by rule to communications between a professional advisor and his client.  Its purpose is to ensure the parties to legal action and proceedings are not constrained in preparing their action. It applies in civil and criminal proceedings as well as commissions of inquiry.   This privilege covers: (1) advice privilege: communications conveying legal advice between a lawyer and his client; there does not have to be litigation in mind; (2) litigation privilege: communications between lawyer, client and third parties (e.g other professionals) for the purpose of pending or contemplated litigation.  The privilege remains even if the party to whom it attached could gain no further benefit from it.   The privilege prevents facts from being disclosed but does not prevent facts in the documents from being proved by other means.  Ginwala clearly showed that South African commissions do not even recognize a legal privilege even if it bites them in the butt.  Ginwala characterized Simelane’s invocation of the privilege as follows:

154 The DG: Justice confirms that he refused to give Adv Pikoli a copy of the opinions. Further, he confirms that he did not inform the Enquiry about these opinions he had obtained. It is clear that the DG: Justice deliberately withheld these legal opinions from Adv Pikoli and the Enquiry. By persisting in this conduct he could have misled the Enquiry. Adv Pikoli’s attorneys wrote to the State Attorney on 2 April 2008 referring to the affidavit by the DG: Justice in the Tshavhungwa matter and requested copies of “legal opinions obtained from independent counsel on the proper interpretation of the relevant provisions of the NPA Act including the meaning, scope and effect of the Minister’s power to exercise final responsibility over the NPA” mentioned therein. They also requested that copies of these opinions be made available to me. The State Attorney in his response stated “Please be advised that the opinion you require was obtained in the course of litigation in the matter Tshavunga (sic). Our client considers it privileged and will not make it available”.

As you know, Navsa and most of the persons who have attacked Simelane have based their actions on Ginwala’s criticism of Simelane’s invocation of legal privilege.  They have essentially claimed that Simelane’s concessions about certain facts during his cross-examination and his claim of the privilege prior to the hearing are indicative of his desire to mislead and are evidence of effort to disassemble.  But that argument is misplaced.   In the context of commission of inquiry, the Australian case AWB Ltd v Cole, (2006) 152 FCR 382, 410 best elucidates the legal privilege principle and also highlights Ginwala’s incompetence.  There the Commission of Inquiry was conducted by Commissioner Cole and was set up for the purpose of investigating the conduct of the Australian Wheat Board in relation to the United Nations ‘Oil-for-Food’ programme (the AWB Royal Commission).  Cole was faced with extensive claims to privilege during the Commission hearing and those claims delayed the Commission for over a year, causing great frustration to the Royal Commissioner. AWB Ltd also challenged Commissioner Cole’s capacity to determine privilege claims.  A  document was inadvertently produced by AWB Limited (‘AWB’) to the Inquiry in response to a notice to produce documents. In these proceedings it was common ground that any legal professional privilege attaching to the document had not been waived by its inadvertent production. After hearing evidence and submissions concerning the document, the Commissioner said that the RCA confers an ancillary or incidental power on him to determine whether the claim of legal professional privilege had been established in respect of the document. On the evidence before him, the Commissioner ruled that the document was not privileged.  The AWB sought judicial review and the court had to decide whether the document attracts legal professional privilege.  After considering a number of authorities as to what amounts to ‘legal advice’,  Young J concluded that legal advice is not confined to telling the client ‘the law’ but also includes advice about what action should be taken in that legal context. In the context of commissions of inquiry or “Royal Commissions,”  Young J accepted that legal advice ‘includes professional advice given by lawyers to a client as to what evidence and submissions should be placed before a commission of inquiry’.   In Simelane’s case it was the state attorney who advised that the documents sought were privileged and would not be produced.  But Simelane was later crucified for the State attorney’s actions.

It was also gross incompetence for Ginwala to draw adverse inferences from the fact that Simelane invoked the legal privilege in question.  As a general rule, no adverse inference can be drawn from assertion of the attorney-client privilege because to do so would destroy the privilege.  A rule that punishes non-disclosure not only undermines the privilege but may well tarnish the advice given.  Swidler & Berlin v. U.S., 524 U.S. 399, 410 (1998) (ad hoc exceptions to privilege may cause "general erosion").  In Nabisco, Inc. v. PF Brands, Inc., 191 F.3d 208 (2d Cir. 1999), the lower court had allowed an adverse inference based on a claim of attorney-client privilege for an opinion letter in a trademark action.  The Court of Appeals held there was no basis for allowing such an inference (191 F.3d at 226):

But we know of no precedent supporting such an inference based on
the invocation of the attorney-client privilege.  This privilege is
designed to encourage persons to seek legal advice, and lawyers to
give candid advice, all without adverse effect.  See Upjohn Co. v.
United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584
(1981); 8 Wigmore, Evidence § 2291 (McNaughton rev.1961).  If
refusal to produce an attorney's opinion letter based on claim of the
privilege supported an adverse inference, persons would be
discouraged from seeking opinions, or lawyers would be discouraged
from giving honest opinions.  Such a penalty for invocation of the
privilege would have seriously harmful consequences.

 To the same effect are:  Parker v. Prudential Insurance Co., 900 F.2d 772, 775 (4th
Cir. 1990) (refusing to apply a “negative inference” based on assertion of the
privilege) and THK America, Inc. v. NSK, Ltd., 917 F. Supp. 563, 566 (N.D. Ill.
1996).  In Hickman v. Taylor, 329 U.S. 495 (1947), the Supreme Court addressed
forced waiver of attorney’s work product immunity and the resulting problems.

The disturbing question that must be asked is why Navsa and his colleagues at the SCA failed to recognize Ginwala’s gross errors?   The mainstay of the DA’s argument, which Navsa readily accepted, is that Ginwala’s assessment of Simelane’s credibility as a witness and her criticism as stated herein constitute evidence that he lacks integrity.  That is of course based in part on Simelane having asserted a legal professional privilege – the latter is a substantive (as distinct from merely a procedural) right and a fundamental condition on which the administration of justice as a whole rests.   They failed to understand that in the context of commission of inquiry, legal advice ‘includes professional advice given by lawyers to a client as to what evidence and submissions should be placed before a commission of inquiry’. See, the Australian case AWB Ltd v Cole, (2006) 152 FCR 382, 410.

Once again, the question to you is this: Given the niggardly treatment legal privilege has suffered at the hands of previous commissions and the judiciary, what right-thinking lawyer would submit his client to any commission lacking in such basic safeguards?  Those who have mindlessly asked you to await the outcome of the Farlam commission have not even bothered to ponder these issues.  I bet you, not even the Constitutional court will bother to critique the GE and Navsa’s treatment of the privilege issue in the anticipated decision involving Simelane.

The Simelane case teaches us that in South Africa persons adversely affected by unfair Commission’s criticism are subjected to political campaigns and even driven from their positions without any due process.  To the extent that Zuma’s Marikana Commission is being perceived by the misinformed as a performing a parallel criminal investigation the said agenda and misuse of the commission would raise serious constitutional issues. Under Section 34 of the Constitution, justice is to be administered by judges in public, in Courts established under the Constitution. A simulacrum of the administration of justice by the Marikana Commission would be inadmissible and unconstitutional.  Experience from the GE teaches that a simulacrum of the administration of justice often appears to take place in these Commissions and people are prejudiced by the findings of Commissions at least as much as by a judgment of a court. There is manifest scope for conflict between a Commission and the constitutional rights of the citizens especially in relation to the administration of justice, civil or criminal, and the trial of offences. The dangers and conceptual difficulties to which a tribunal which lacked these characteristics would give rise are amply considered in an Australian case, Victoria v. Australian Building Construction Employees Federation (1982) 152 CLR 25 where Murphy J. said, in particular:

The authority given to the Commissioner to exercise such an important ingredient of judicial power as finding a person guilty of ordinary crimes, is itself an undermining of the separation of powers. It is a fine point to answer that the finding is not binding and does not of itself make the person liable to punitive consequences. It is by fine points such as these that human freedom is whittled away”.

Indeed all the constitutional guarantees in relation to the administration of justice and fair procedures would be vain if it were possible for the government to set up simulacrum or a “parallel process” which would have all the consequences of criminal conviction other than actual imprisonment.   That is a point worth pondering in the Marikana cases as well.  A misuse of the Commission’s report and its damning allegations against anyone (in the manner suggested by the DA and approved by Navsa in Simelane’s case) would render the Farlam commission not only a farce but unconstitutional as well.

There are also evidentiary issues which render the suggestion that you await the conclusion of the Farlam commission even more puzzling.  In the Irish case, Goodman International v. Mr. Justice Hamilton [1992] 2 I.R. 542, Justice Hardiman elaborated on an issue Judge Navsa appears to have been totally oblivious of – that is the inadmissibility of a commission’s report as evidence by a court of law.  He stated:

  At least absent a specific statutory provision, a matter of fact requiring to be established before a court must be established by admissible evidence which is open to cross-examination and contradiction, and is given publicly before the Court. It is not normally an admissible form of proof to produce a statement by a third party whether a policeman, a government minister or a Tribunal of Inquiry and to claim that that has evidential effect, prima facie or otherwise. An exception to this arises, of course, where there is an issue which, by virtue of a decision of a court of competent jurisdiction, is res judicata between the parties; but such a decision of a court will itself have been reached on admissible evidence duly adduced in a hearing which observes all the parties’ procedural rights. (Emphasis added).

Mr. Justice Hardiman reiterated that:

 “[the finding of a tribunal] either of the truth or the falsity of any particular allegation which may be the subject of existing or potential litigation, forms no part of the material which a court which has to decide that litigation could rely upon. It cannot either be used as a weapon of attack or defence by a litigant who in relation to the same matter is disputing with another party rights arising from some allegation of breach of contract or illegal conduct or malpractice”.

In an ironic sense, the constitutionality and the credibility of the Farlam commission will depend on how the Concourt rules in the pending Simelane matter.  In Simelane, the Concourt has a golden opportunity to clarify its statement in SARFU that "[t]he President is bound neither to accept the commission’s factual findings nor is he or she bound to follow its recommendations."  What is the doctrinal basis for the view that the findings of a commission are considered to be not binding on the President? If they are not binding can a court force him to accept such findings through the back door and to be bound by the GE report when it comes to making an appointment of the NDPP?   Will the Concourt adopt the position of the Supreme Court of Ireland and view the GE report as “not imposing any liabilities or effecting any rights” and rule that the GE conclusions merely have the status of opinion which is devoid of legal consequences?  Will the Concourt follow the Ireland Supreme Court example and regard the GE as a “a body whose findings are “sterile of legal effect” whose purpose is “merely to enquire and report.” ?  If it does, the SCA decision on Simelane will be in tatters because Navsa’s ruling gives a res judicata effect to the GE report.  It would mean that the SCA decision reached its decision based on inadmissible evidence adduced in a hearing which blatantly failed to observe Simelane’s’ procedural rights.  Will the Concourt boldly assert as the Ireland courts did that in view of the functions of the GE, its report constitutes inadmissible hearsay and would it also uphold Simelane’s right to have only admissible evidence deployed against him.  I raise this matters not for didactic point-scoring but to sensitize you to potential legal landmines you are likely to stumble upon should you acquiesce in the importunings of those who may be well-meaning but misguided in their view of the law.


C.         Mandela’s Government and our Constitutional Court Have Fully Accepted The Common Purpose Doctrine.

What must we make of the accusations that the NPA has abused its powers by invoking the common purpose doctrine in the prosecution of the Marikana miners?  The most odious example of this unsavoury assault on your integrity is the reaction of Pierre De Vos.  He launches a sledge-hammer attack on you as the NDPP and claims that the NPA’s decision to charge “is bizarre and shocking and represents a flagrant abuse of the criminal justice system, most probably in an effort to protect the police and/or politicians like Jacob Zuma and Nathi Mthethwa.”  This rabid obsession with politics of the ANC leads these so-called academics to resort to far-flung conspiracy theories instead of focusing on informed and principled legal analysis that deepens the public’s understanding of our constitutional democracy.  Almost as if to underscore the bankruptcy of his own approach, De Vos condemns the NPA’s reliance on the doctrine of common purpose which he dubs "an outdated apartheid law [which] has been hauled out and dusted off to press [the] charges".  Further, he claims that it "was discredited during the time of apartheid"; and that the charges are "bizarre and shocking", without merit or any hope of success and must have been brought for other nefarious purposes.   De Vos’s approach reflects a sad reality of modern day pseudo-academics who are always in a gadarene rush to provide media sound-bites on very complex legal issues without minimal scholarly research on the subject they are called to comment about.  I have already addressed the hypocrisy of the so-called analysts who pay lip service to prosecutorial independence ; they only speak out against the executive’s attempts to interfere with prosecutorial independence when it suits their political agenda.  

I will now focus on the fallacy of De Vos’s argument to prove conclusively that the doctrine of common purpose was never the exclusive preserve of the apartheid criminal justice system.  De Vos’ reckless statements reflect the highest form of demagoguery and are designed to mislead the public.  Without a scintilla of evidence he accuses you of flagrantly abusing the criminal justice system “most probably in an effort to protect the police and/or politicians like Jacob Zuma and Nathi Mthethwa.” He falsely implies that the doctrine of common purpose was abrogated by disuse and that you took ““an outdated apartheid law [which] has been hauled out and dusted off to press [the] charges".  That is a despicable lie- in fact the vitality of the common purpose doctrine was reaffirmed in the post -1994 period and our judiciary has wholeheartedly endorsed and applied the principle in a plethora of cases as my research has revealed.  Equally nonsensical is De Vos’ unsubstantiated claim that the doctrine "was discredited during the time of apartheid" – I demonstrate conclusively that his hot air assertion finds absolutely no support in the many judicial decisions issued before and since the advent of our democracy.

Under our democratic government, the doctrine has been applied in a variety of circumstances including vigilante killings, faction fighting, cash heist robberies, service delivery protests, attacks on striking workers by rightwing racists and countless other cases.  You may recall that the doctrine was even applied (albeit unsuccessfully) against the apartheid police involved  in the notorious ”Trojan horse killing” or murder of young activists in Athlone Western Cape. See, Magmoed v Janse van Rensburg and Others [1992] ZASCA 208; 1993 (1) SA 777 (A) at 818D-F where the court held that the doctrine is applicable in culpable homicide cases provided the negligence of each accused is not imputed but determined independently. It is undisputed that the application of the doctrine of common purpose is best epitomized by three leading cases during the apartheid era, namely,  S v Safatsa and Others 1988 (1) SA 868 (AD); S v Mgedezi and Others 1989 (1) SA 687 (AD), and S v Nzo and Another [1990] ZASCA 10; 1990 (3) SA 1 (AD).    

The first case, Sefatsa,  involved the “Sharpeville Six” and arose out of the following scenario: On 2 September 1984, residents of Sharpeville, Sebokeng, Boipatong and Bophelong clashed with the police. There were 50 people killed. Four of these were Town Councillors who were attacked by mobs. On 3 September 1984 Mr Kuzwayo Jacob Dlamini,the deputy major of the town council of Lekoa, was murdered outside his house in Sharpeville, near Vereeniging.  A mob of people numbering about 100 had attacked his house, first by pelting it with stones, thus breaking the windows, and then by hurling petrol bombs through the windows, thus setting the house alight. Mr Dlamini's car was removed from the garage, pushed into the street, flipped on its side, and set on fire. As his house was engulfed by fire, Mr Dlamini fled from it and attempted to seek shelter in a neighbouring house. Before his journey was cut short; he was caught by some members of the mob, who disarmed him of a pistol which had been his companion up to that point – he even refused the police offer to leave with them at an earlier point believing in the power of his gun. Suffice it to say he was then assaulted. Stones were thrown at him and some members of the mob went up to him and battered his head with stones. Thereafter he was dragged into the street, where petrol was poured over him and he was set alight. He died there.  Professor Devenish of the University of KZN simply labels the gruesome murder as “militant political protest.” 

These events led to eight persons being charged in the Transvaal Provincial Division before a judge strangely named “Human J” and assessors on two counts. Count one was a charge of murder, arising out of the killing of Dlamini, and Count two was a charge of subversion .  Six of the accused were found guilty of murder without extenuating circumstances and were sentenced to death. On the 13 December 1985, they applied and were granted leave to appeal. On December 1, 1987 the Appellate Division of the Supreme Court of South Africa, in decision authored by Botha J with the concurrence of Judge Hefer and three other judges (Hefer was later handpicked by Mbeki to investigate the spying allegations against NDPP Ngcuka in 2004) dismissed the appeals by the appellants against their convictions for murder and the death sentences imposed upon them.  Owing to the stellar work done by the ANC in mobilizing the international community against apartheid, the conviction and sentencing of six of the accused to death, sparked worldwide condemnation.   Particularly damnable in the eyes of the international community was the court’s departure from its own precedent and that of other South African courts’ pronouncement that a murder conviction required proof of a causal connection between the actions of the accused and the victim's death.  At the time when world opinion was solidly galvanized against apartheid which was also viewed as a crime against humanity, the unbridled heartlessness evidenced by the death sentences imposed on the six convicted persons further exposed the brutality of the system.

I was full-time law student at New York University (NYU) and part-time UNISA student at the time.  As a South African I was personally enraged by the court decision and participated in meetings, lectures etc. to highlight the plight of the condemned accused.  To simplify the message and to appeal to those incensed by the harshness of the death sentences, the explanation regarding the court decision was over-simplified and packaged for those without any legal training.  It was wrongly suggested that the court had ruled that mere presence at a crime scene would be enough to secure a murder conviction and that was effective in convincing Americans (who have their own harsh “felony-murder doctrine”) that apartheid was beyond the pale. But that position was incorrect under South African law: neither the Sharpeville Six judgment nor legal scholars within South Africa, ever suggested that mere presence at a crime scene was sufficient to invite liability.   The campaign was understandable; these were not times for intellectual niceties and academic debates – the condemned Sharpeville six were racing against time and something had to be done.  Immediately upon being notified that their appeal was dismissed, the applicants sent a clemency petition the State President in terms of S327 (1) of the Criminal Procedure Act No.51 of 1977. In short order, this was unsuccessful and the applicants were informed that they would be executed on 18 March 1988. They then launched an application for the stay of the executions pending an application to re-open the trial on the basis that one state witness Joseph Manete had perjured himself and made contradictory statements during the trial. The applicants argued that the Supreme Court had an inherent right to re-open a criminal trial (after all appeals have been dismissed) where the decision was based on perjured evidence.  On the eve of the execution date, 17 March l988 a stay of execution was ordered pending an application to re-open the case.  

May I digress here to point out that it is a fallacy to imply that the common purpose doctrine was embraced only by unrepentant or die-hard apartheid jurists.  In fact the most prominent use of the doctrine was by Michael Corbett, the first Chief Justice of a democratic South Africa under Mandela.[5] You may recall that Justice Corbett who is hailed as a hero by modern day white liberals was amongst the judges who refused the Sefatsa application to reopen their case thus upholding the other court’s findings that no extenuating circumstances existed in the case of any of the petitioners and confirming the death sentence.  Corbett, who was an aficionado of the common purpose doctrine, rejected the petitioner’s application even in the face of credible allegations that the state secured a conviction by offering the perjured testimony of its witnesses.  As if to highlight white liberal hypocrisy, when Corbett was elevated to the position of Chief Justice under Mandela, there was not even a whimper of protest from these academics and lawyers who are now masquerading as paragons of constitutional wisdom and born-again opponents of the common purpose doctrine. Even worse, Judge Hefer, who was one of the judges that upheld the death sentence of the Sharpeville Six in Sefatsa was allowed to continue serving for many years as a judge after the advent of our democracy.  Without doubt, Hefer also continued to champion and apply the common purpose doctrine in numerous written judgments without any hint of criticism from the loudmouths now attacking Jiba today.

Since the release of the Sharpeville Six in early 1991, I have revisited the Sefatsa decision in order to digest fully its doctrinal basis and to explore further the theory that the decision was itself the epitome of apartheid misuse of the criminal justice by the white judiciary to legitimize and perpetuate white minority rule.  To my utter amazement, I found the decision, and the common purpose doctrine upon which it is founded, to be sound in law and can state without fear of contradiction that it passes constitutional muster in our democracy. This is why.  To the Judge, Botha the question “that must be faced squarely is this: in cases of the kind commonly referred to in our practice as cases of "common purpose", in relation to murder, is it competent for a participant in the common purpose to be found guilty of murder in the absence of proof that his conduct individually caused or contributed causally to the death of the deceased?”  Botha assiduously avoided dealing with the large numbers “of articles in legal journals, in doctoral theses, and in textbooks” and decided  “not to deal pertinently with the various divergent and often conflicting opinions and views expressed by particular authors.”   To do so “would turn this judgment into an academic treatise and would defeat my object, which is to attempt to clarify the law as it is applied in practice, as briefly as possible and with a minimum of references to legal subtleties and jurisprudential philosophizing.” The judge referred to the “English” origin of the doctrine and stated that in relation to cases of common purpose, there was no requirement that some kind of causal connection be proved between the conduct, of a particular participant in the common purpose and the death of the deceased before a conviction of murder can be justified in respect of such a participant.  The judge’s approach and evaluation of the facts showed that there was no short-shrift treatment, no cutting of corners in his approach – only a rigorous analysis of the evidence was undertaken.

In Sefatsa, the eight accused were part of the attacking mob of approximately 100. Their participation may be summarized as follows:
(1) Accused 1 was one of the persons who caught the deceased when he fled his house. He wrestled with the deceased, and was the first who struck the deceased with a stone.

(2) Accused 2 was one of the mob who stoned the deceased’s house. When the deceased fled his burning house, the accused threw stones at him which struck his back, presumably causing him to fall and be caught by the other pursuers.

(3) Accused 3 was one of the small group of men who caught the deceased as he fled his house. He wrestled him to the ground and disarmed him.

(4) Accused 4 was part of the crowd, carrying a placard. She shouted repeatedly: He is shooting at us, let us kill him” (the deceased). When petrol was poured over the deceased a member of the crowd objected to him being set alight. The accused slapped this woman in the face, ostensibly to stop her from complaining.

(5) Accused No. 5 and 6 were part of the vanguard of the crowd, but they were not seen to throw stones. Save for being present and part of the leaders of the vanguard, there was no evidence against them of any active participation in any acts which contributed to the death of the deceased.

(6) Accused 7 was part of the stone-throwing mob. He made petrol bombs, poured petrol over the kitchen door of the deceased’s house and set it alight. He assisted in pushing the deceased’s car into the street.

(7) Accused 8 made petrol bombs which he handed to other members of the mob with instructions to surround the house and set it alight

The court a quo found, which was confirmed on appeal, that with the exception of accused no. 5 and 6 all other 6 accused “…had actively associated themselves with the conduct of the mob, which was directed at the killing of the deceased.” ( at 893G).

Contrary to what was later propagated around the world, the “apartheid judge” never ruled that mere presence and being part of the leaders of the vanguard without any evidence of active participation in any acts which contributed to the death of the deceased was sufficient to found liability.   This is further buttressed by the acquittal of accused No.5 and 6 in the Sharpeville case.    As to the remaining accused, the judge ruled that “there can be no doubt, in my judgment, that the individual acts of each of the six accused convicted of murder manifested an active association with the acts of the mob which caused the death of the deceased. These accused shared a common purpose with the crowd to kill the deceased and each of them had the requisite dolus in respect of his death. Consequently the acts of the mob which caused the deceased's death must be imputed to each of these accused.”  He also rejected the argument that “the final act of setting the deceased alight fell outside the purview of any common purpose to which the accused were parties and that they could therefore not be held responsible for the deceased's death.” He concluded that on the “particular facts of this case the precise manner in which and the precise means by which the deceased was to be killed were irrelevant to the achievement of the common purpose.” Effectively, the appeal court ruled that it was enough if someone with murderous intent engages in overt conduct associating himself with the murderous actions of others. 

Of course, it did not help that the court meted out the death sentence while claiming to clarify the doctrine of common purpose – this led to a distortion and oversimplification, and outright misrepresentation of the judgment.  To highlight the insouciance of apartheid judges to human life, especially African, the court’s ruling was misinterpreted and misrepresented around the world - It was wrongly suggested that the court had ruled that mere presence at a crime scene might be enough to secure a murder conviction. The judgment required that an accused must himself have murderous intent, and must moreover engage in overt conduct that associates himself with the murder actions of the actual perpetrators.  It betrays intellectual laziness when activists and pseudo-intellectuals continue to put the propagandist’s spin on such judgments instead of approaching them with scholarly discipline and objectivity they deserve.

To highlight the hypocrisy of the white reactionary groups and their black puppets further, I must discuss the position of former chief justice Corbett in this regard.  In S v Botamane (266/88) [1989] ZASCA 37 (30 March 1989), Corbett was part of a panel which applied the doctrine of common purpose and made several observations relevant to the prosecution’s theory in the Marikana case.   The court upheld the notion that the common purpose principle can undergird criminal liability not only of an accused who was actually responsible for the killing of the deceased but it applies equally to an associate who acted with common purpose. The court cited with approval case law including R v Lewis 1958(3) S.A. 107 (AD) at 109 H and S v Nhlapo and Another 1981(2) S.A. 744 (AD) at 750 E - G. In the last-mentioned decision van Heerden AJA said in reference to the facts of that case:

    ".... I have no doubt that the robbers must have foreseen the possibility that one of them might kill one of the guards, and that they were reckless as to whether or not this consequence ensued. If they did not foresee the further possibility of a guard being killed by a shot fired by one of his co-guards, the question would arise whether the unforeseen manner in which a foreseen consequence was caused, is legally relevant; in other words, whether dolus eventualis requires foresight not only of a consequence but also of the causal sequence leading to the consequence. 

The court ruled in the case that the use of the revolver in order to escape was a “foreseen as a possibility.” It concluded by stating that “[w]hatever doubts may have existed as to the legal position before the decision in S v Safatsait is now settled law that a participant who, like the appellant, agrees beforehand to the commission of an offence, in this case the robbery, may be found guilty of murder without his conduct having caused or contributed causally to the death of the deceased.”  Accordingly, in cases of common purpose the act of one participant in causing the death of the deceased is imputed, as a matter of law, to the other participants provided, of course, that the necessary mens rea is present.  When dealing with armed protesters who are acting with common purpose and who have already killed police officer and security guard, it is not far-fetched to suggest that a shot fired by a protester at the police which then elicits a retaliatory shooting by the police fits within the scenario envisaged by Botamane.

What Sefatsa would also not allow is a situation where immediately upon arrest of the suspects numbering in their hundreds, frenzied calls are made for the prosecutor to be stampeded into articulating his entire legal theory and evidence justifying the arrest.  The acquittal of some of the Sefatsa is ample testimony to the fact that a conscientious court in our democracy can separate wheat from chaff and free the Marikana miners in a trial.  It is disingenuous for some individuals to manipulate and misuse the doctrine simply for the purpose of cheap political point-scoring and simply because they have an axe to grind with the current NDPP. 

Corbett and his colleagues spoke of an eventuality “foreseen as a possibility” not even a probability.  It is an open question whether this low threshold may be met in a hypothetical volatile situation where a mob including persons armed with an assortment of dangerous weapons including guns, machetes, pangas etc. and labouring under the belief that a sangoma’s muti will render them impervious to police bullets defy police orders to disarm and disperse.  In Marikana, Joseph Mathunjwa, a union leader was in tears as he related how he had pleaded with the thousands of striking miners who had been squatting on the Wonderkop hill for a week. "I pleaded with them - (I told them) the writing is on the wall, they are going to kill you."  RW Johnson states:

            For there was no doubt that the police meant business. Earlier in the week two policemen had been slashed to death, another hospitalized and seven other people killed. The police were in a grim mood, wore bulletproof vests and metal helmets, were armed to the teeth with automatic weapons and had brought a whole fleet of Nyala armoured cars with them. They had announced that Thursday was D-day, that whatever happened the protest would be forcibly ended that day. In the end about 200 of the men rushed down at the police who fired indiscriminately at them, killing 34, injuring 78. Another 259 were arrested.”[6] 

Juxtapose to this hypothetical situation the fact that some members of the same mob had allegedly killed policemen, security guards and their non-striking colleagues a few days preceding the day of the bigger confrontation.  It is asinine to argue that in that scenario, members of the mob did not “foresee a possibility” of violent confrontation with the police.   The fact that the police had the upper hand this time around cannot change the fact members of the agitated mob did foresee a possibility of violent confrontation.  It does not matter that some people had unshakable belief that a sangoma’s muti would neutralize police firepower.  According to Corbett’s reasoning in the S v Botamane  case, even if the police had accidentally shot some of their fellow officers in the ensuing cross-fire, it is theoretically possible that the miners could be charged with the murder of the police officers.  I shall back this up with legal authority below.

On a superficial level and based on a shallow reading of the Sefatsa judgment, it is arguable that some criticism can be leveled at the alleged over-exuberance of the NPA for the manner in which it simply used a dragnet to arrest 267 people it later charged with murder.  After all, Sefatsa avoided an approach which would have rendered the prosecution unwieldy an unmanageable.  But Sefatsa does not place numerical limit on people that police may arrest or the NPA may charge in mob violence situations.  It simply teaches that there is no substitute for careful individualized determination of liability even where the accused were picked out of a large crowd of people. This much appears from the tenor of the judgment of Botha which is that the test for imputing to the accused the actions of the group is the active association with the conduct which caused the deceased’s death. At 901 H-I the learned Judge of appeal states: “… there can be no doubt, in my judgment, that the individual acts of each of the six accused convicted of murder manifested an active association with the acts of the mob which caused the death of the deceased.” (my emphasis).  Sefatsa also teaches that the participation of each accused in the death of the deceased must be separately analyzed. Absent evidence that a particular accused actively participated or associated him or herself with the conduct which caused the death or other crime, the actions of those who caused the death cannot be imputed to the particular accused and he must be acquitted. The object and purpose of the doctrine was therefore to overcome an otherwise unjust result which offended the legal convictions of the community. It did so by removing the element of causation from criminal liability and replacing it, in appropriate circumstances, with imputing the deed (actus reus) which caused the death (or other crime) to all the co-perpetrators.  That the doctrine is aimed solely at removing the obstacle of proving causation and not any of the other requirement, is clear from the leading case of Safatsa (supra). Having referred to a number of authorities, Botha JA said at 898A-B: “In my opinion these remarks constitute once again a clear recognition of the principle that in cases of common purpose the act of one participant in causing the death of the deceased is imputed, as a matter of law, to the other participants.”  Accordingly, the logic of the Sefatsa case which requires individualized and fact-specific determination of the role of each accused for conviction must be put in proper perspective.  Where the NPA has not finalized the charges and where the case is at its incipient stage, it is downright ludicrous to demand from the NPA that it produce the quality and quantity evidence of sufficient to secure a conviction at trial.   Such actions are premature and are emblematic of a balkanized approach which poses an unacceptably high risk of distorting reality.    They are nothing more than political interference with the independence of the NDPP.

In S v Mgedezi and others the facts are crisply stated as follows: The violence involving mineworkers affiliated with NUM followed simmering tensions between two groups of workers living in a hostel, team leaders on the one hand and shaft stewards on the other. [7] A team leader is a foreman in charge of a number of workers, possibly up to 30,depending on the work situation. The function of a team leader is to supervise the workers in his team, inter alia by seeing to it that the working place underground was safely maintained and that the production was kept up. It is safe to infer that team leaders enjoy the confidence of the mine management, and also that instances of misdemeanour or dereliction of duty on the part of workers would be reported by the team leaders to the mine management.  They are in reality the eyes and ears of management. Shaft stewards, on the other hand, are members of the work force who are elected by their work-mates to act as representatives for the National Union of Mineworkers in negotiations on their behalf between the Union and the mine management. Part of the functions of a shaft steward, is to receive complaints from workers who have been disciplined or who feel aggrieved for some reason, and to represent such workers, on behalf of the Union, in taking up their complaints or grievances with the mine management. 

About the middle of 1985 a complaint on behalf of the team leaders was lodged with the mine management against accused No 1. The complaint was that the team leaders had been threatened and intimidated by accused No 1. who routinely called team leaders "mpimpi's"  (sell-outs) who ought to be burnt to death. He denied the allegations. The result of the enquiry was that accused No 1 was found guilty and warned to desist from threatening the team leaders. Over time, the team leaders began carrying weapons or there were rumours they were secreting or stockpiling weapons for an eventual attack on the shaft stewards.  In the words of one witness, the "the hostel was very, very tense, extremely so". The cause of the tension, according to Pollack, was twofold: on the one hand, team leaders had been complaining that they were being openly threatened and intimidated by members of the Union, who, with accused No 1 as their leader, had been running around, dancing and singing threatening songs, which frightened the team leaders; on the other hand, members of the Union and shaft stewards had been complaining that certain team leaders were collecting weapons with the intention of attacking them, and that they had information that the weapons were being stored in the compound for the purpose of attacking them.  It turned out the accusations were not without substance – a limited search at the compound actually produced weapons which were found stored in a drain at the back of block 5.  On the following morning, however, a further search was carried out, and a number of weapons were found in the compound, such as sticks, iron bars and the like.

The violence which led to the trial erupted in room 12 of the mine compound. The eight men who resided in room 12 of block 1 were all team leaders at the mine.  A vicious attack was launched in room12 by group members of the Union killing all the six persons who were inside that room. The deceased persons were attacked with stones and sharp instruments and room 12 was set alight by a group of people. Only three of the accused were identified near room 12 at the time of the attack on it. The other accused persons were seen elsewhere in the compound. The attacking group was singing a song with the words “ that impimpis must be killed”. Only accused nos 1,3 and 4 were seen in the immediate vicinity of the room 12 at the time of the attack on it. No state witness saw any of the accused actually inflicting any injury upon any of the four deceased which caused or contributed causally to the death of any of the deceased nor was any of the accused seen physically to assault any of them.  The extent of the evidence offered against the accused was as follows:

Accused no. 1 was the leader of the group that was singing kill the impimpi. He threw a chair which was lit into the window of room 12 and it caught alight. He did not enter the room. It was held that by so doing he had actively associated himself with the acts of the members of the group which killed the deceased persons.

Accused no. 2 came across the deceased who had already been assaulted by an unknown assailant having inflicted two fatal stab wounds in his back but was still alive when accused no.2 arrived at him. Accused no. 2 inflicted wounds on the upper body and on the head. The post mortem report showed that the deceased was not killed by the injuries which were inflicted by accused no. 2 but by those which were inflicted by unknown assailant. In terms of the principle in State vs Safatsa (supra), accused no.2 could only be convicted of the murder of that deceased if the state had succeeded in proving common purpose between accused no.2 and unknown assailant. In order to succeed the state would have to prove that accused no.2 was present at the scene where the violence was being committed; that he was aware of the assaults on the inmates of room 12 ; that he must have intended to make common cause with those who were actually perpetrating the assault; that he manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of the others and that he had the requisite mens rea, namely, he must have intended that the room mates of room 12 should be killed or he must have foreseen the possibility of their being killed and performed his own act of association reckless as to whether death was to ensue or not. Accused no.2 was acquitted on the murder charge of this deceased because the state had failed to prove that he had common purpose with the unknown assailant who had inflicted fatal injuries on him.

Accused no.4 was carrying a knob kerrie and an assegai. He threw stones at room 12. He shouted “ons het hulle klaargemaak die mpimpis” It was held that by throwing stones at room 12, he had made common cause with those who inflicted the injuries on the occupants of room 12.

Accused no.6 was among the group which was singing. He was not carrying any weapon. It was held that he did not form common purpose with the people who killed the deceased. He was convicted of public violence.

The Mgedezi trial court found that members of a large mob had attached and killed the deceased. The accused were part of the mob. The court a quo found that the accused foresaw the death of the deceased and associated themselves with such consequences. Three of the appellants, Nos 1, 2 and 3, were sentenced to death on each of the four counts of murder, and to 15 years' imprisonment each on the fifth count, i.e attempted murder. Appellant No 4 was sentenced to 10 years' imprisonment on each of the five counts, the sentences to be served concurrently. The remaining two appellants, Nos 5 and 6, were each sentenced to 7 years' imprisonment on each of the five counts, such sentences also to be served concurrently. The trial Judge granted leave to the appellants to appeal against all their convictions and sentences.

However, there was no evidence that any of the accused committed any act which was directly and physically linked to the causing of the death of any of the deceased. (at 698 F-G).  When it came to an analysis of the evidence in light of the common purpose doctrine the apartheid Court of Appeal (again per Botha JA) undertook credible and disciplined legal analysis.  It held that a view of the totality of the evidence cannot legitimately be used as a brush with which to tar each accused individually, nor as a means of rejecting the defence versions en masse (at 703B). The Judge of Appeal made the following remark at 703B-C:

“A view of the totality of the defence cases [of all the accused] cannot legitimately be used as a brush with which to tar each accused individually, nor as a means of rejecting the defence versions en masse. The global view taken by the trial Court of the defence cases led it to draw two inferences: (a) that each accused was present at the scene (at room 12) and participated in the execution of the threat against the mpimpi’s; and (b) that the defences of all of them were false beyond reasonable doubt. With respect, as a matter of simple logic I consider both inferences to be wholly insupportable.”

  At 703E-F he said:

“The trial Court erred by precluding itself from performing its duty to consider the evidence of each accused separately and individually, to weigh up that evidence against the particular evidence of the individual State witness or witnesses who implicated that accused, and upon that basis then to assess the question whether that accused’s evidence could reasonably possibly be true.”

At 703H-704A he concluded:

“The reference, in purely general terms, to liability on the basis of common purpose, in para (3) of the above quotation from the judgment, cannot warrant an inference of liability in respect of all the accused en bloc. The trial Court was obliged to consider, in relation to each individual accused whose evidence could properly be rejected as false, the facts found proved by the State evidence against that accused, in order to assess whether there was a sufficient basis for holding that accused liable on the ground of active participation in the achievement of a common purpose. The trial Court’s failure to undertake this task again constituted a serious misdirection.”

 It is quite evident from the above that the conduct and activity of each individual accused in the participation of the crime must be considered – there is no one size fits all approach. The general finding on the totality of the evidence that an accused was merely present and formed part of the crowd, without any evidence of his or her active participation in events which resulted in the death or other crimes with which he or she is charged, is insufficient to warrant a finding of “active participation.”  The requirement that in the absence of a prior agreement the State must prove an active association with the events which are causally connected to the death, and that the accused must have been present at the scene where these events occurred, appear from the following extract of the judgment in Mgedezi (supra)at 705E-I:

“It would appear from the judgment of the trial Judge … that the trial Court might have based its decision on a finding that there had been a prior agreement between the accused to kill the mpimpi’s, i.e. the team leaders. There was, however, no evidence to substantiate such a finding. The attack which resulted in the killing or wounding of the team leaders was confined to room 12 and its occupants. Consequently any enquiry into common purpose must be directed at the events that occurred there. As far as accused No 6 is concerned, there is nothing in the evidence to show that he had agreed that the inmates of room 12 were to be assaulted. There is no suggestion of an express agreement and there is no proof of an implied agreement. As to the latter, the acts that accused No 6 was proved to have committed in the vicinity of blocks 4 and 5 do not give rise to an inference beyond reasonable doubt that he had agreed with any other person that the occupants of room 12 were to be killed. At the time when, and at the place where, accused No 6 participated in the activities of the group who were calling for mpimpi’s to be killed, those activities constituted no more than threats and intimidation, which had not reached any stage of actual execution, as we know from what happened in room 108, and it would be too much of a leap in time and place to infer from those events that accused No 6 had agreed to the events that occurred at room 12.”

The restrictive meaning of “active association” is evidenced by the four requirements for liability under common purpose as formulated in Mgedezi (supra) at 705I-706C as follows:

“In the absence of proof of a prior agreement, accused No 6, who was not shown to have contributed causally to the killing or wounding of the occupants of room 12, can be held liable for those events, on the basis of the decision in S v Sefatsa and Others 1988 (1) SA 868 (A), only if certain prerequisites are satisfied. In the first place, he must have been present at the scene where the violence was being committed. Secondly, he must have been aware of the assault on the inmates of room 12. Thirdly, he must have intended to make common cause with those who were actually perpetrating the assault. Fourthly, he must have manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of the others. Fifthly, he must have had the requisite mens rea; so, in respect of the killing of the deceased, he must have intended them to be killed, or he 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.”


The rule in Safatsa and Mgedezi was constitutionally challenged before the Supreme Court of Appeal in S v Thebus and Another 2002 (2) SACR 566 (SCA). It was held to pass constitutional muster and one year later the judgment was confirmed by the Constitutional Court in S v Thebus and Another [2003] ZACC 12; 2003 (2) SACR 319 (CC.  The doctrine passed constitutional muster notwithstanding that it dispensed with causation as a requirement for criminal liability.  The Concourt was not obsessed with the apartheid pedigree of the common purpose doctrines the matter was put beyond any doubt by Moseneke J at 341e (para 34) as follows:

              “In our law, ordinarily, in a consequence crime, a causal nexus between the conduct of an accused and the criminal consequence is a prerequisite for criminal liability. The doctrine of common purpose dispenses with the causation requirement. Provided the accused actively associated with the conduct of the perpetrators in the group that caused the death and had the required intention in respect of the unlawful consequence, the accused would be guilty of the offence. The principal object of the doctrine of common purpose is to criminalise collective criminal conduct and thus to satisfy the social ‘need to control crime committed in the course of joint enterprises’. The phenomenon of serious crimes committed by collective individuals, acting in concert, remains a significant societal scourge. In consequence crimes such as murder, robbery, malicious damage to property and arson, it is often difficult to prove that the act of each person or of a particular person in the group contributed causally to the criminal result. Such a causal prerequisite for liability would render nugatory and ineffectual the object of the criminal norm of common purpose and make prosecution of collaborative criminal enterprise intractable and ineffectual.”

The approach to adjudicate the actions of the accused individually and not to paint his conduct with a collective brush is described by the Constitutional Court in Thebus (supra) at 345, para [45] as follows:

“[45] A collective approach to determining the actual conduct or active association of an individual accused has many evidentiary pitfalls. The trial court must seek to determine, in respect of each accused person, 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.”

No one has had the audacity to accuse Justice Moseneke of endorsing apartheid jurisprudence despite the fact that he endorsed the ruling in both Sefatsa and Mgedezi.  Instead some were clamoring for him to be appointed Chief Justice.  It is mind-boggling why a law professor, De Vos, would in a display of emotional outburst attack the NPA for using a doctrine which has received endorsement from the Concourt, the highest court in the land? As a corollary why would high-ranking ANC members and cabinet ministers allow themselves to be exposed for their intellectual bankruptcy in this manner?   The intimidation tactics used against the NPA sets us on the slippery slope towards a direct assault on judicial independence and that certainly have a spill-over effect into the judiciary itself.  A judge seized with a case involving common purpose doctrine would be under scrutiny and could be rendered vulnerable to attacks for his judgments if he issues rulings anchored on the common purpose doctrine.  The Concourt teaches that instead of intimidating a prosecutor at the indictment stage or demanding that he withdraw charges, folks must leave it to the trial court which “must seek to determine, in respect of each accused person, 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.”  It is simply wrong to demand that a prosecutor try her case through the news media and in the court of public opinion or that she publicly disclose every strand of evidence or plead every conceivable theory for prosecuting the Marikana case.

The travel of the Thebus case itself highlights very interesting issues about the hypocrisy of those who rail against the NPA for allegedly using an ‘apartheid doctrine”.  The doctrine was endorsed by SCA judge Navsa – the latter recently became an instant darling of white liberals when he ruled that Simelane’s appointment as NDPP was unlawful.   On 14 November 1998, a group of protesting residents in Ocean View, Cape Town, gathered and approached the houses of several reputed drug dealers in the area, including the house of one Grant Cronje. They allegedly caused damage to the property of Cronje before moving on. The protestors drove through the area in a motorcade of about five to six vehicles. As the motorcade approached a road intersection Cronje opened fire on the group. In response, some members of the group alighted from their vehicles and returned fire. In the resulting crossfire, a seven-year old girl, Crystal Abrahams, was fatally shot and two others, Riaan van Rooyen and Lester September, were wounded.

 The majority of the SCA confirmed the convictions without reference to the basis of the conviction being common purpose. In his minority judgment, Navsa JA upheld the finding of the trial court that the requirements of common purpose had been met. Navsa JA found that on the facts the members of the vigilante group who were at the scene were party to a common purpose that rendered them liable for the murder of the child and the attempted murder of two other persons. It was on this basis that Navsa JA confirmed the second appellant’s conviction of murder and attempted murder. In this regard he endorse a far-reaching application of the doctrine by stating as follows:

With reference to S v Mgedezi 1989 (1) SA 687 (A) the Court below convicted the two appellants on the basis of the doctrine of common purpose. It reasoned that members of the group were armed and that no member who participated in or associated with its actions on the day in question could be heard to say that he or she did not contemplate the possibility of violence erupting and that the arms carried by members of the group would be used and that persons might be killed. It held that the people who fired the shots and those associated with them had the requisite intention in the form of dolus eventualis. The Court below rejected the submission on behalf of the appellants that members of the group were acting in self-defence, stating that it was clear from the evidence that the group returned Cronje’s fire after he had fled.

“By coming to Ocean View armed and behaving in the manner described earlier in this judgment members of the vigilante group were demonstrating that they were intent on confrontation and violence. By stopping and standing in the middle of a populated area, firearms blazing away wild-west style, members of the group placed themselves and others in the community in danger. It is clear that members of the vigilante group acted in concert as they went about their business in Ocean View. No member of the group, whether in motor vehicles or in the street, dissociated himself from violent actions perpetrated by others in the group.  I am satisfied that the requirements for holding individuals liable for acting in common purpose with others on the basis set out in the Mgedezi case, supra, at 705 I – 706 C have been satisfied insofar as the second appellant is concerned. The second appellant's conviction in the Court below is, in my view, well founded. ”

 The majority judgment accepted the findings of Navsa JA on common purpose. Judge Carole Lewis, (another white judge known for leniency on murderous criminals and for political speeches denouncing affirmative action[8]) also stated:

 “In so far as sentence is concerned, I agree with Navsa JA that the crimes committed by the appellants fall within the ambit of s 51 of the Criminal Law Amendment Act 105 of 1997, and in particular that the appellants were part of a group acting in furtherance of a common purpose. In the circumstances the prescribed minimum sentence is life imprisonment for each unless substantial and compelling circumstances, warranting the imposition of a lesser sentence, are shown to exist.
[17] I agree also with the views expressed by Navsa JA on the abhorrent nature of the crimes, and on the dangers of appearing to condone the conduct of the appellants in taking the law into their own hands. Vigilante action must be visited with severe consequences.”
[20] The killing of Crystal Abrahams, and the injuring of Riaan van Rooyen and Lester September was not premeditated. They were caught in the middle of the shooting by the vigilante group. The appellants, although guilty by virtue of being part of the group and having a common purpose, were not themselves the men who fired the shots. The first appellant stood at the scene of the shooting and the second collected spent cartridges.

As I have previously complained in my writings, the deliberate targeting of blacks in higher positions in the judiciary and now the NPA, for partisan political attacks shows a disturbing pattern of sweeping white incompetence[9] under the carpet while blacks are subject to relentless attacks based on false and manufactured reasons.  In the mad rush to denounce persons like Advocate Jiba, some whites and their black puppets have consciously suppressed facts in order to win their argument.  Imagine the lie that the doctrine of common purpose was a moribund or discredited doctrine?  This flies in the face of reality because this doctrine received clear endorsement from both the legislature and our judiciary post-1994.  Under President Mandela, parliament enacted Section 51 of the Criminal Law Amendment Act 105 of 1997 Section 51 (1) of the Act obliges a court which convicts an accused person of committing murder, as part of a group acting in the execution or furtherance of a common purpose or conspiracy, to impose a sentence of life imprisonment, unless in terms of section 51 (3) "substantial and compelling circumstances" exist, justifying the imposition of a lesser sentence.  Mandela would never have assented to such a statute with very harsh penalties if he thought that he was perpetuating an apartheid law and thereby exposing South African citizens to greater risks occurred to him even for a nanosecond.  The Concourt’s ringing affirmation of the common purpose doctrine raises a question about the respect for judicial independence by the NPA’s detractors – in what way does labeling the common purpose doctrine under these circumstance promote respect for judicial independence or promote the cause of justice.

As Judge Navsa stated a case such as Thebus was the kind of case contemplated by the provisions of section 51 (1) of the Act passed by the Mandela government.   He stated:

“…this is precisely the kind of case that the legislature had in mind. The legislation is directed against mob and gang rule and general lawlessness. The second appellant and his comrades were intent on violence. They went about their business in the most violent and dramatic manner. With the intention of rooting out drug dealers who terrorised a township they then proceeded to terrorise the community even further. It is surprising that more people were not killed or injured. No member of the group can now be heard to say that he or she did not foresee the possibility of the violence and mayhem that ensued. It was all too predictable. In my view, it is fallacious to lay any blame for what transpired at Cronje's door. Armed, the group intended to tackle drug dealers. Members of the group could have been under no illusion that those targeted by them would be meek and submissive. In my view, the Court below erred in finding that there were substantial and compelling circumstances justifying a sentence less than that prescribed by section 51 (1). The group as a whole displayed a bloody-mindedness. The individuals in the group did not and now cannot distance themselves from group behaviour. They associated themselves fully with the group's methods and purpose. “ 

Can De Vos and his gang really accuse the Mandela government, with a straight face, of having opted for the continuation of discredited and moribund apartheid doctrines, including “common purpose”? 

Why is it acceptable for judges like Navsa to fully endorse the common purpose doctrine but not acceptable for the NPA to prosecute cases relying on the same doctrines approved by both the legislature and the judiciary?  After all, every single criminal case including those based on common purpose doctrine are formulated by prosecutors and not the judges.  If a prosecutor fails to get it right, that prosecutor will be embarrassed when the judge tosses out his case in court.  Both the prosecutor and the accused have the absolute right to battle it out in court.

In regard to the judiciary both Judge Farlam and Navsa have relied on the common purpose doctrine on numerous occasions in their judicial careers.    In S v Whitehead and Others (197/07) [2007] ZASCA 171; [2007] SCA 171 (RSA); [2008] 2 All SA 257 (SCA) ; 2008 (1) SACR 431 (SCA) (30 November 2007) (a judgment involving both Farlam and Navsa),  the doctrine of common purpose was used in the context of culpable homicide and public violence charges against white vigilantes who mercilessly attacked striking black workers.    On 15 August 1995, the Municipal and Regional Services Council workers of Kuruman went on strike and on 30 and 31 of that month they decided to demonstrate to highlight their grievances. To this end they marched through the streets of Kuruman, chanting and waving placards. In the course of the march they emptied rubbish bins and threw the trash in the streets. The following day they again staged a march through the town. Their numbers were estimated variously to be between 60 and 200. They again started trashing the streets but after the arrest of five of their numbers they desisted and the demonstration continued peacefully. They halted at the taxi rank which is in the middle of the town and sat down on a grassy area where they were addressed by their leader. The next moment a posse of white men armed with pickhandles and sjamboks came running down the street and without warning set upon the seated workers and beat them indiscriminately with their weapons. The workers fled in all directions pursued by their attackers. They, (the attackers), then proceeded to smash cars belonging to blacks and attack other black people who had nothing to do with the striking workers. After the attack at least nine people remained lying on the grass with various injuries. Mr Gaoretelwe Adam Brown, (‘the deceased’), a municipal worker, was found next to a fence close to the grass area unconscious with a wound to his head. He was taken to hospital where he subsequently died. The cause of death was an injury to the head caused by a blunt instrument.

  Navsa and Van Heerden separately wrote and made the following poignant observations about the behavior of the white vigilantes: 

 [15] Before addressing that question we consider it necessary to place our perspective of the behaviour of the appellants and their cohorts on record. A white librarian, Ms Greyling, testified that shortly before the attack she witnessed a number of vehicles and white people gathering in an area which she was clearly able to see. One of their number addressed the assembled crowd. A bakkie arrived bearing a pile of new pick-axe handles which were then distributed. It is common cause that, apart from these pick-axe handles, others of the group bore sjamboks or kieries. A municipal ambulance accompanied this crowd as they set off in the direction of where the black workers had gathered. It is also common cause that at some stage during the attack either an iron rod or a kierie was seen lying on the seat of the ambulance and those black persons who had been injured had understandably been most reluctant to be transported by that ambulance to the hospital. The driver of the ambulance refused to allow at least one injured person entry to the ambulance; the perception of this person was that the driver formed part of the white crowd.


[16] An important aspect of the attack which we deem necessary to record is that the first victim of the attack was a nature conservation official who had arrived at the taxi rank near where the workers had gathered to drop his aunt off there. He was oblivious of the workers’ strike and was totally unconnected to the protest action. The white crowd had, without any provocation, set upon his car as he reversed to leave the area. The car was damaged and he was physically threatened to such an extent that he felt in danger of his life. Without prompt police intervention he would, at the very least, certainly have been seriously injured.

[17] Other important details of the attack and its consequences are set out hereafter. Later that day, one black person was pursued by a small group of white assailants (including appellant seven) into a doctor’s waiting rooms where he was set upon and severely assaulted.

18] A group of attackers proceeded partly on foot and partly in bakkies to a parking area alongside a shopping centre and attacked people in the vicinity, wielding pick-axe handles and sjamboks.

[19] An attack was also unleashed on customers at a fast food outlet within a shopping complex. The attacks were indiscriminate, certainly not limited to members of the group of striking workers, and with women and elderly people also being victims.

[20] One man was attacked as he was attempting to close-up at his place of employment. He was severely beaten and a woman at his place of employment, who was attempting to leave the scene, was pulled out off her vehicle and set upon.

[21] It is common cause that the police had to intervene to prevent attackers in a bakkie from proceeding to the nearby black township.

[22] An additional important fact is that at least some members of the police appeared sympathetic to the attackers.

[23] Seen in proper perspective the attack was intended to put the workers, who had dared to go on strike, in their proper place. It was an unashamed racist attack perpetrated more than a year after the introduction of a constitutional order. It was arrogant in the extreme and incited terror amongst the black citizens of Kuruman.

[24] Cars of innocent passers-by were also attacked and damaged by the marauding white assailants.

[25] During the course of the attacks referred to above, Mr Garoetelwe Adam Brown (the deceased) was so severely injured that he subsequently died in hospital of blunt trauma to the head. Another tragic consequence of these events was the revenge attack on a white correctional services official in the nearby black township, who was burnt alive in his vehicle.

[26] Lest the incorrect impression be created, it is necessary to point out that the appellants in their heads of argument did not attempt to challenge the conviction of culpable homicide on the basis that it constituted a duplication of convictions with the conviction on the public violence charge. Indeed, the following part of the notice of application for leave to appeal is to the contrary:

‘[H]oewel dit afsonderlike skuldigbevindings regverdig het, moes die verhoorlandros die aanklagte saamgeneem het vir doeleindes van vonnis.’

[27] In respect of the charge of culpable homicide the State’s case was that, in perpetrating excessively violent assaults with dangerous weapons on unarmed people, the white attackers ought reasonably to have foreseen that the death of one or more of the victims might result. The defence to this charge throughout the trial was that the death of the deceased was caused by people unconnected to the group of assailants and, in the alternative, that there was no reasonable foresight of death of any person. From a careful perusal of the record as a whole, it is in our view evident that neither the State nor the defence would have conducted the trial any differently had paragraph (c), as referred to earlier,1 not been included in the public violence charge sheet.

In regard to the legal theory, I believe the NPA is on solid ground.  In your public statement you correctly mentioned that the “NPA has applied the (common purpose) principle in many cases before. Its application to this specific case would therefore not be unique.” You also pointed out that this doctrine “is set out in the case of S v Lungile and Another 1999 (2) SACR 597 (SCA) and is to the effect that where a group of armed robbers meet resistance and a violent confrontation ensues during which one of the robbers or bystanders is killed by either the police or co-robbers, then the co-robbers may be charged with the murder of the co-robber or bystander in the instance where they foresee the death and reconcile themselves with the it. See also S v Nhlapo and Another 1981 (2) SA 744 (A) and S v Dube and Others 2010 (1) SACR 65 (KZP).”

The judgment in S v Lungile (by Olivier with Hefer JA, Harms JA, concurring) was delivered on 30 November 1999, more than five(5) years into our democracy.  Olivier JA stated the following in regard to the determination as to whether the required subjective insight was present in a case of common purpose:

“In the present case, the crucial question therefore is whether the State proved beyond a reasonable doubt that the first appellant in fact did foresee…that the death of a person could result from the armed robbery in which he participated. In this case, as in many others, the question whether an accused in fact foresaw a particular consequence of his acts can only be answered by way of deductive reasoning. Because such reasoning can be misleading, one must be cautious. Generally speaking, the fact that the first appellant had prior to the robbery made common cause with his co-robbers to execute the crime, well-knowing that at least two of them were armed, would set in motion a logical inferential process leading up to a finding that he did in fact foresee the possibility of a killing during the robbery and that he was reckless as regards that result.”

The likes of De Vos did not denounce the decision or call for the resignation of Hefer and Harms who participated in the judgment but they have now suddenly found it expedient to use it as ammunition against the NPA in general and Advocate Jiba in particular.  It is interesting that De Vos’ statements have been parroted by George Devenish, a DA party hack, who stated in Business Day, LETTER: NPA’s conduct brings shame to SA,[10] 4 September 2012 the following:

These charges have subsequently been withdrawn. The extended and erroneous application of this controversial doctrine of common purpose was discredited during the last decade of the apartheid era when, during a period of intense civil commotion caused by the opponents of the apartheid regime, the state used it to secure convictions and to criminalise the militant protest action of political activists in the townships.
During this period, two cases involving this questionable doctrine resulted in notoriety for our apartheid criminal justice system. The first was the Upington case, where 26 people were convicted of the murder of a councillor since the state was able to prove, albeit on the flimsiest of evidence, that they were all part of a crowd who gathered outside the councillor’s house prior to the homicide.
Equally notorious was the criminal case designated the "Shapeville Six". The accused were convicted and sentenced to capital punishment on the basis of the common purpose doctrine. Only the moratorium placed on the death penalty saved them from the gallows.
It is surprising that the NPA has resurrected this doctrine in an absurd and outrageous manifestation by reasoning that ". .. in legal terms, when people attack or confront the police and shooting takes place which results in fatalities ... suspects arrested, irrespective of whether they shot police members or the police shot them, are charged with murder".
This is an unprecedented, irrational and distorted application of the doctrine and will undoubtedly taint the NPA with notoriety internationally. In effect, the NPA and the criminal justice system are rendered the laughing stock of the world.
Further, this foolish conduct of the NPA could have, if it was not withdrawn, prejudged the outcome of the commission of inquiry into the tragedy, violating the sub judice rule.
The horrific death of the miners at Marikana is a tragedy of the first order for the country. The events need to be handled with extreme sensitivity and in a manner that reflects wise and strong political leadership by all concerned.
The NPA has exacerbated a tragic crisis by its conduct, and brings shame to the government and people of SA. By instituting the charge and then summarily withdrawing it, the impression is created is that the leadership within the NPA does not know what they are doing and, in effect, are fumbling in the dark to the great detriment of this country.

Please note the intellectual claptrap by Devenish here- he baldly asserts that the “doctrine of common purpose was discredited” but offers no credible empirical evidence to back up his claim.  Just like De Vos, he categorically asseverates that “the state used it to secure convictions and to criminalise the militant protest action of political activists in the townships.” The cases discussed in this document clearly fall under the category of gruesome murders but Devenish euphemistically calls them “militant protest actions.”  Devenish cites the Sefatsa case but assiduously avoids telling his readers that the Concourt itself has endorsed Sefatsa by name and the decision has even been applied in Namibia and Botswana to name just a few places.  He ignores amplitudinous evidence from our courts’ rampant use of the doctrine and deceptively accuses you of having “resurrected this doctrine.” Devenish also claims that the NPA decision is “an unprecedented, irrational and distorted application of the doctrine and will undoubtedly taint the NPA with notoriety internationally.”   Once again, Devenish’s demagoguery bursts out into the open.  He assiduously avoids telling his readers that the provisions of Rome Statute Article 25(3) of the International criminal Court recognizes individual criminal responsibility as follows:

In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
… d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
(ii) Be made in the knowledge of the intention of the group to commit the crime;

Devenish cannot explain why the so-called “international” community will target the NPA for ostracism and ridicule when international treaties have used language recognizing the common purpose doctrine in a form indistinguishable from its South African counter-part.  In fact, it’s worth pointing out that Article 25(3)(d) of the Rome Statute is copied almost  verbatim  from  Article 2(3)(c) of the  International  Convention  On  the  Suppression  of  Terrorist  Bombings of  1997 (ICSTB).   Devenish, in a bold-faced misrepresentation states that in “effect, the NPA and the criminal justice system are rendered the laughing stock of the world.” Once again, he is disassembling to score cheap political points.

As the Safatsa court pointed out, the common purpose doctrine is of English origin and is still being applied in UK courts and other Commonwealth countries. See, for example, Regina v Powell (Anthony) and English, 1 AC 1 (HL 1999) (UK) and Regina v Smith (Wesley), [1963] 1 WLR 1200 (UK) (“In the view of this court, that is a wholly unexceptionable direction on the law except, of course, where the act can be said to be wholly outside the subject-matter of the concerted agreement. The terms ‘agreement,’ ‘confederacy,’ ‘acting in concert’ and ‘conspiracy’, all pre-suppose an agreement express or by implication to achieve a common purpose, and so long as the act done is within the ambit of that common purpose anyone who takes part in it, if it is an unlawful killing, is guilty of manslaughter.”).  Why would the British choose to laugh at or ridicule the NPA’s use of common purpose doctrine when they also have a similar doctrine to deal with crime in their country?

I recognize that the British have leveled criticism at the doctrine in their own country using language very similar to that of South African scholars.  However, the doctrine is still applied vigorously because of society’s interest in combating crimes.  In the House of Lords case of R v Powell [1999] 1 AC 1, 23. counsel for the appellants vigorously argued against the common law test in extended common purpose cases involving homicide as follows: “If foreseeability of risk is insufficient to found the mens reas of murder for a principal then the same test of liability should apply in the case of a secondary party to the joint enterprise…it is wrong for the present distinction in mental culpability to operate to the disadvantage of a party who does not commit the actus reus and that there is a manifest anomaly where there is one test for a principal and a lesser test for a secondary party.   The court rebuffed the argument on the basis that the public policy argument of deterring criminals from engaging in joint criminal activities holds dominance in the common law. Lord Hutton expressed this public policy argument of “deterrence” succinctly in response to the above argument in R v Powell (which upheld the present test) as follows:

 I recognise that as a matter of logic there is force in the argument advanced on behalf of the appellants, and that on one view it is anomalous that if foreseeability of death or really serious harm is not sufficient to constitute mens rea for murder in the party who actually carries out the killing, it is sufficient to constitute mens rea in a secondary party. But the rules of the common law are not based solely on logic but relate to practical concerns and, in relation to crimes committed in the course of joint enterprises, to the need to give effective protection to the public against criminals operating in gangs…In my opinion there are practical considerations of weight and importance related to considerations of public policy which justify the principle…and which prevail over considerations of strict logic. R v Powell [1999] 1 AC 1, 25 (Lord Hutton).

Likewise, in Australia, court decisions have articulated a theory of the common purpose doctrine indistinguishable from its South African counter-part.  See, Gillard v The Queen (2003) 219 CLR 1, [46] where Kirby J said: ‘Where criminal liability is imposed on the basis of a common unlawful purpose, one person (the secondary offender) is rendered liable for the acts of another person (the principal offender) although the secondary offender has not actually performed the acts in question and may not have agreed to, or specifically intended, that such acts take place.’ (My emphasis).   The test for extended common purpose liability as expressed in Gillard is as follows:

According to the principles stated in McAuliffe, the culpability of the [secondary participant] in the event that [the primary participant] shot and killed [the victim] would depend upon the scope of their common design [joint criminal venture], and what [the secondary participant] foresaw as a possible incident of the design. If [the secondary participant] foresaw, as a possible incident of carrying out the common design, that [the primary participant] might shoot [the victim] with intent to kill or cause grievous bodily harm, then [the secondary participant] would be guilty of murder.
The possible consequences which can be taken into account are those within the subjective contemplation of the participants to the original understanding or arrangement.  This is so even if the secondary participant did not agree to the incidental crime being committed. Id.
According to Gillard, to “hold the individual liable for the commission of the incidental crime, when its commission is foreseen but not agreed, accords with the general principle that “a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it.” The criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight.” Id. (My emphasis). 

Just like our own courts, the Australian courts have based the liability of a secondary participant on the social policy argument of “deterrence”. This argument is well-expressed by Justice Kirby in Gillard as follows:

Those who participate in activities highly dangerous to life and limb share equal responsibility for the consequences of the acts that ensue. This is because, as the law’s experience shows, particularly when dangerous weapons are involved in a crime scene, whatever the actual and earlier intentions of the secondary offender, the possibility exists that the primary offender will use the weapons, occasioning death or grievous bodily harm to others. The law then tells the secondary offender not to participate because doing so risks equal inculpation in such serious crimes as ensue.

It is noteworthy how this statement accords fully with the Concourt’s view in S v Thebus and Another 2003(2) SACR 319 (CC) at 343(f) – 344(a) (para 40) which stated:

“[40] Common purpose does not amount to an arbitrary deprivation of freedom. The doctrine is rationally connected to the legitimate objective of limiting and controlling joint criminal enterprise. It serves vital purposes in our criminal justice system. Absent the rule of common purpose, all but actual perpetrators of a crime and their accomplices will be beyond the reach of our criminal justice system, despite their unlawful and intentional participation in the commission of the crime. Such an outcome would not accord with the considerable societal distaste for crimes by common design. Group, organised or collaborative misdeeds strike more harshly at the fabric of society and the rights of victims than crimes perpetrated by individuals. Effective prosecution of crime is a legitimate, 'pressing social need'. The need for 'a strong deterrent to violent crime' is well acknowledged because 'widespread violent crime is deeply destructive of the fabric of our society'. There is a real and pressing social concern about the high levels of crime. In practice, joint criminal conduct often poses peculiar difficulties of proof of the result of the conduct of each accused, a problem which hardly arises in the case of an individual accused person. Thus there is no objection to this norm of culpability even though it by passes the requirement of causation.”

There you have it; so much for the so-called international jurisprudence claimed by Professors Devenish! 

Not to be outdone, De Vos has also chimed in claiming that “the miners cannot be “convicted of murder by relying on the common purpose doctrine. No court is going to find that those charged intended to make common cause with the police to shoot their own comrades. Neither will a court find that the miners acted in a way to demonstrated that they associated with the actions of the police who killed the 34 miners. I cannot imagine that even the out-of-their-depth prosecutors and members of the NPA leadership really believe that any court will find the miners guilty of murder for the killing of their comrades by the police. This means they charged the miners with murder, knowing full well that the charges would never stick, with an entirely different aim.”  I have perused the published law reports for De Vos’s track record and experience as a trial lawyer in criminal cases and have found nothing.   In any event, his argument is foreclosed by the case law cited in this document particularly cases dealing with shootings by third parties not forming a part of the gang.  The specific cases cited by the NPA refute De Vos’ ludicrous argument.

What both Devenish and De Vos leave omit from their false narrative is of course that political pressure was brought to bear on the NPA based on deliberate distortions of the law.  Just like De Vos, ANC leaders and Cosatu, Devenish falsely asserts that the NPA’s actions “prejudge the outcome of the commissions of inquiry into the tragedy” and goes further to make an alarming statement that the NPA action violates the “sub judice rule.”  The NPA is prosecuting its case before a court established under our Constitution and is entitled to express its prosecution theory and formulate charges before that court.  Under what theory would the NPA defer to a commission appointed by the President, especially where the Commission has no power to bind anyone and its reports can be ignored will-nilly by the President?   The danger here is that some people may harbour secret agenda to effect a political solution to the Marikana problem – if the Farlam commission favours NUM instead of AMCWU then Zuma may be urged to exercise his prerogative to accept the commission’s findings, thereby solidifying the image of AMCWU as a reactionary outfit serving imperialists and capitalists.  On the flip side of that, if the commission’s findings cut against NUM and other politically powerful persons, Zuma will be urged to reject the commission’s finding consistent with his powers under Section 84 of the Constitution.  Those who preach that the Farlam commission will bring finality to the crisis are being delusional.

The statements of the NPA detractors are long on political rhetoric but short on legal analysis and substance.  They do not tell us why a theory discredited under apartheid was endorsed by Mandela’s government and the Concourt.  They do not shed any light on why they have remained silent in the face of rampant use of the common purpose doctrine by our post-apartheid judiciary.  They offer no credible explanation of why the doctrine was recently relied upon in Le Roux v The State (444/2008) [2010] ZASCA 7 (5 March 2010) (where Mpati P, Nugent, Mlambo JJA  reaffirmed the validity of the common purpose doctrine).    These opportunists did not use the same judgment against Nugent when he declared his candidacy for the Concourt vacancy in 2012.   Nor did Mlambo’s endorsement of the doctrine derail his appointment as Judge President of the Gauteng High court.  In a similar vein, they offer no explanation as to why they failed to raise any objection to Judge Maya’s candidacy for the same Concourt vacancy in view of the fact that she had just utilized the same doctrine of common purpose in Scott v The State (473/10) [2011] ZASCA 121 (31 August 2011).   They could not do so because these decisions were based on sound legal principles.  In the Scott case, Judge Maya reiterated the following:

[22] As to the appellants’ culpability or otherwise for the attempt on Conrad’s life by Singh and the second and third appellants’ guilt or otherwise for both offences on the basis of the doctrine of common purpose which the magistrate applied, it is necessary to consider their individual conduct to determine whether there is a sufficient basis for holding that each one of them is liable, on the ground of active participation in the achievement of a common purpose that developed at the scene. (See S v Le Roux (444/08)[2010] ZASCA 7; 2010 (2) SACR 11 (SCA) at 19e; S v Mgedezi 1989 (1) SA 687 (A) at 703B-I.)

[23] In the absence of proof of a prior agreement to commit the offences, as here,  the appellants can be convicted on the basis of the doctrine of common purpose, if (a) they were present where the violence was being committed; (b) they were aware of the assault on Conrad and the deceased; (c) they intended to make common cause with the perpetrator(s) of the assault; (d) they manifested their sharing of a common purpose with the perpetrator(s) of the assault by themselves performing some act of association with the conduct of the perpetrator(s); and (e) they had the requisite mens rea concerning the unlawful outcome at the time the offence was committed, i.e. intended the criminal result or foresaw the possibility of the criminal result ensuing and nevertheless actively associated themselves reckless as to whether the result was to ensue. (See S v Safatsa 1988 (1) SA 868 (A); S v Mgedezi above at 705I-706C; S v Thebus 2003 (2) SACR 319 (CC) para 49.)

These loudmouth reactionaries cannot intelligibly answer the question of why the highest court of a democratic and independent Namibia has endorsed and applied the common purpose doctrine.  The Supreme Court of a free Namibia expressly approved the application of the law of common purpose in  S v Gurirab and Others (SA 12/2002) [2008] NASC 1 (7 February 2008).   There the court expressly stated that:
 
I respectfully agree with the reasoning and findings by the learned Judge in the Safatsa-case, supra. The various Namibian cases referred to by Ms Miller show in my opinion that the doctrine of common purpose is also firmly embedded into the criminal law and procedure of this country and, although the issue of causality was not always pertinently addressed, there can be no doubt that the clarification of the principles of the doctrine, as set out in the Safatsa-case, has found application in our criminal law. (See in general S v Haikele and Others, 1992 NR 54 (HC); S v Alexander and Another, 1992 NR 88 (HC); S v Ipinge Andreas Leonard Amalovu and Another, CC72/2000, unreported judgment by Mtambanengwe, J, delivered on 7 June 2001; S v Christiaan Nicolaas Jones and Three Others, CC04/2004, unreported judgment by Mainga, J, delivered on 2 November 2005; S v Elia Avelino and Five Others, CC 06/2003, unreported judgment by Gibson, J, delivered on 22 November 2005 and S v Joseph Garisweb and Another, CC 05/2003, unreported judgment by van Niekerk, J, delivered on 16 October 2006).

 I must also point out that the doctrine has been exported to Botswana, Lesotho and Swaziland owing to the influence of South African judges who often moonlight in the courts of those countries. In Democratic Botswana, the common purpose doctrine is recognized and enshrined in their Penal Code[11]. See, S v Galebonwe and Another (CRTF-3-05) [2008] BWHC 233 (24 June 2008) and Kemoreile v The State The State [1996] BWCA 17; [1996] BLR 34 at p. 39G-H-40A (CA) which show that the Botswana courts have expressly adopted the South African version of common purpose doctrine.  In Kemoreile Schreiner J.A affirmed that “…The requirements for conviction on the basis of common purpose are dealt with in S v Mgedezi and Others …” See, also Diboneng & Others v The State [1997] BLR 675 at 688 C-F (C.A) where Steyn J.A. said:

“…It is my view that the murder of the deceased and the injuries inflicted upon the first prosecution witness were probable consequences of the joint criminal enterprise and accordingly all the appellants are guilty of these two offences irrespective of who it was that struck the fatal blow that killed the deceased. It was not necessary for the State to establish an explicit prior conspiracy to murder and to assault. A common purpose can arise on the spur of the moment and as long as the offence committed by one or more of those involved was a probable consequence of such purpose they are all to be held equally liable for such an offence. See in this regard R v Bergstedt 1955 (4) S.A. 186 (A) at p. 188 of the judgment where Schreiner A.C.J. says:

“For common purpose to create liability in such cases there must have been actual knowledge that there was some probability that, in circumstances that might well arise, the further criminal act would be committed. The knowledge may, of course, be established by inference, so that it would be proper to tell the jury that they should apply common purpose if satisfied that the accused, whose responsibility of the act of another is under inquiry, ‘must have known’ of the probability.”

It follows that no matter who actually did the stabbing of either the first prosecution witness or the deceased, all four of the appellants were jointly liable on the application of the principle of common purpose and were properly convicted on both counts as charged.”

I found almost comical De Vos’ reaction to Zuma’s decision to appoint Farlam as the head of the Commission into Marikana.  He stated:

I am impressed by the terms of reference of the commission of inquiry into the Marikana massacre, as well as the fact that Judge Ian Farlam will head the Commission.
Judge Farlam is a highly respected retired judge, who served for a long time on the Supreme Court of Appeal (SCA). Although judge Farlam cannot be described as young, he is no “doddering old fool”. He has vast experience, is highly intelligent and is very hardworking and efficient – as the impressive stream of reported judgments emanating from his pen attests.
It might well be that some union members might find fault with the fact that Judge Farlam, although progressive in outlook, has no Struggle record and is not closely associated with the liberation movement. However, this might well count in his favour, as he is not seen as being politically close to the president, a faction within the ANC or either of the unions whose activities will be probed by the commission.
The fact that President Jacob Zuma appointed him to head the commission of inquiry suggests that the presidency is alive to the fact that the inquiry must not only be fair and impartial, but must also be seen by reasonable South Africans to ensure that any findings made are not seen as a whitewash. One hopes that the Farlam Commission will do its work in an open and transparent manner and will conduct public hearings where all role players will get the chance to provide their version of events. The Commission should be alive to the words of US Supreme Court Justice Louis Brandeis, who famously said: “Sunlight is the best disinfectant”.[12]

What De Vos’ astutely leaves out of his self-serving narrative is that “the impressive stream of reported judgments emanating from [Farlam’s] pen” include judgments in which Farlam embraced the very common purpose doctrine assailed by De Vos.   Even more interesting, Farlam and his former SCA colleague Craig Howie exported the doctrine to Lesotho and applied it against accused persons there.  They both sat as the Court of Appeal in the matter of Khohlane Boi and Rex, C OF A (CRI) NO. 8/09, Delivered: 23 April 2010[13].  They affirmed that:

“An individual’s guilt on the basis of common purpose requires proof of five facts: his presence on the relevant scene; his awareness of an assault in progress; his making common cause with the perpetrators(s); his performing some act of association; and his having the intent to kill, at least because he foresees the possibility of the victim’s death and performs his particular act reckless as to whether that death results.  S v Mgedezi 1989 (1) SA 687 (A) 705I–706B.  These facts were proved in respect of all the appellants who took part in the stone throwing.  I accordingly conclude that they were, on the basis of the doctrine of common purpose, guilty of murder.

Another case involving Farlam and common purpose is S v Dlepu (567/06) [2007] ZASCA 81; [2007] SCA 81 (RSA) (1 June 2007).  The opinion is authored by Mlambo and stated as follows:

 [30] Evidence was necessary direct and/or circumstantial to find that the appellant was involved in the robbery plot based on the common purpose doctrine, which the regional court also relied on. No such evidence was led, the only evidence being that he was a passenger. If he was, as the regional court found, acting in common purpose with the robbers, the regional court had no evidence to make this finding. The law is clear that certain requirements are necessary before a finding of common purpose can be made. In this regard no evidence was led to show how the appellant was causally connected to the robbery, there was no evidence that he was present at the scene of the robbery, that he was aware of the robbery, that he showed a common purpose with the robbers. Without this evidence there is no basis for the finding that he was connected to the robbery. S v Mgedezi 1989 (1) SA 687 (A) at 705I-706B and S v Thebus [2003] ZACC 12; 2003 (6) SA 505 (CC) at 521D-E.

Mlambo’s acceptance of the doctrine did not prevent his ascendancy to the position of Judge President of Gauteng in 2012. Likewise, Farlam’s concurrence in the decision was not considered negatively- he is Zuma’s point man for Marikana, the same case where the common purpose doctrine is likely to come under scrutiny.  Not surprisingly, Farlam receives panegyric from the likes of De Vos while the NDPP is being lambasted for invoking the same doctrine.  Other instances of Farlam’s use of the doctrine are S v Malefane and Others (261/94, 59/96, 245/94, 230/94, 320/94) [1998] ZASCA 53 (1 June 1998)  (Farlam with Hefer concurring.).  In the Malefane matter, Farlam stated the following:

In my view the trial court was entirely correct in finding that accused 1 was a party to a common purpose to rob and that in all the circumstances he foresaw homicide as a possible consequence of the execution of the plan to rob and that he associated himself with that possibility in a reckless fashion: See S v Majosi and Others, 1991 (2) SACR 532 (A) at 537 j - 538 e. It follows that the convictions on counts 1 and 2 were clearly correct…
It must have been an inherent part of the plan hatched by accused 1 and his confederates to use the firearms which they assembled for the purposes of the robbery not only to overcome resistance so that they could obtain cash boxes and the money they contained, but also to ensure their successful flight. They must have foreseen that someone might give the alarm, that they or some of them might be pursued and that shots might well be fired at their pursuers so as to enable them to escape. In the circumstances I am satisfied that the acts of those robbers who shot at Van Reeuwyk and Lourens must be regarded also as the acts of accused 1 with the result that he was rightly convicted in respect thereof: see S v Shaik and Others 1983 (4) SA 57 (AD) at 65 A. It follows that the trial court correctly convicted accused 1 on counts 5 and 6…
 In the present case the finding of common purpose liability against
accused 1 is based on a prior agreement to which he was party that an armed robbery would be committed in circumstances where it is clear that the arms to be used were not lawfully possessed by the users. In other words the commission of the crimes of unlawful possession of firearms and ammunition by some at least of the robbers fell within the common design. I can see no basis - nor was one suggested in argument - why all persons who were party to the common purpose would not be guilty of all crimes committed in pursuance of the common purpose. 

The most nauseating aspect of the orchestrated attacks on the NPA is the disingenuous position adopted by CASAC.  The real svengali for this group is Kriegler but he is hardly mentioned in their tirade against the NPA.  This is the same Kriegler who approved of the common purpose doctrine in Magmoed v Janse Van Rensburg and Others where Corbett CJ pointed out that it is seldom that there is direct evidence of an agreement and that usually the Court is asked to infer it from the proven facts.  Attacking a prosecutor before she has even started presenting evidence is simply perverse.

As I see it, the quandary presented to President Zuma is as follows: Given that Farlam has endorsed the doctrine of common purpose enthusiastically and given that the doctrine is now roundly condemned as an apartheid legal relic, what are the implications of the outlandish remarks of senior ANC politicians, members of the Tripartite alliance and academics for the fairness, impartiality and credibility of the commission?  Is prosecutorial independence being undermined by forcing a prosecutor to withdraw charges amidst intense political attacks in which his judgment regarding the applicability of the common purpose principle is being challenged by those demanding that all prosecution should be deferred pending a commission appointed by the President?  Given the fact that political activists, opposition politicians and even the judiciary abused the laws governing commissions of inquiry in the Simelane matter why should any member of the public have confidence that the Farlam commission would not be misused in similar fashion? 

I remain convinced that the use of the Farlam Commission as an investigative tool to gather evidence for use in prosecutions of anyone in the Marikana tragedy is constitutionally suspect.  Some like Devenish erroneously suggest that the Farlam Commission is imbued with characteristics similar to a court.  If that be the case, individuals affected or involved in this matter have a legitimate right to have the use of the Commission declared unconstitutional – only to the extent it is used to perform the functions assigned to the police and prosecutors under the constitution.  In any event, why defer the prosecution of a case to a commission whose reports and findings are not binding on anyone, not even the President who appoints it, and are not admissible in court to establish criminal liability?  

In conclusion, I remain convinced that the highly personal and defamatory attacks on the NDPP do not have their genesis in the plight and subsequent prosecution of the Marikana accused.   There is a sinister white agenda to undermine blacks in higher positions by using the tactics and stratagems similar to those employed against the NDPP.  I saw a similar pattern emerging in the wholesale attacks on Jimmy Manyi and Judge President Hlophe even from within the ranks of the ANC and its Tripartite alliance. In Jiba’s case, the unpardonable sin she committed is having the gumption to suggest that Glynis Breytenbach a white prosecutor should be subject to disciplinary action.  The latter has already fired the first salvo by claiming in her Labour Court application that you suspended her in an attempt to protect former intelligence boss Richard Mdluli.  That tactic has partially succeeded in portraying her as a victim and shifting the focus away from her conduct in the Kumba/ICT matter.   South African whites cherish and nurture blacks they can dominate intellectually or at least those self-hating blacks who regard approval from whites as their ticket to success. 

At the risk of appearing paranoid, I see the writing on the wall for NDPP Jiba.  Given the hundreds of jurists and prosecutors who have used the common purpose doctrine, it is just baffling why the attacks on Jiba were so venomous and highly personal.  This unmistakable call for the Presidency to undermine judicial independence along with the lynch-mob agenda must be rejected.  After all, the DPP's decision was not a final decision on the charges that the suspects are to face.  That decision will be made when investigations have been finalized and all factors taken into account and a formal indictment with final charges has been served on the accused before the commencement of trial.   The attacks on Jiba are puzzling in light of the fact that white jurists, including Farlam, who are  still hero-worshipped by whites liberals were enthusiastic supporters of the doctrine of common purpose. It is a fallacy to imply that our state made a clean break with apartheid laws and its judiciary.  Our post-apartheid judiciary, including the Concourt itself has continued to uphold the validity of the common purpose doctrine.  The fact that the doctrine was used effectively against anti-apartheid struggle activists is not a reason for discarding it on political grounds.  It is certainly not a justifiable ground for launching personal attacks on the integrity of prosecutors who are in a better position than their detractors to formulate charges based on evidence and not speculation or rumours.

Finally, I must comment on your abiding sense of humour.  At the time when you were accused of relying on an apartheid doctrine, you presented a white guy named Smit to argue with passion, gusto and firm conviction that the common purpose doctrine is legally sound.  I am sure Smit is a consummate professional.  But truth be said, your detractors do not really care for the correctness of your theory as such; theirs was a political hatchet job and they may have succeeded.   In the eyes of skeptical members of the public especially those who believe South Africa has seen little transformation, your apparent reliance on Smit appeared to confirm rather than dispel the notion that you reached for the tools used by apartheid legal order in order to deal harshly with the miners.  Unfortunately, perceptions are reality and facts to those who believe them. 

I wish you Godspeed in the execution of the arduous tasks that lie ahead!

Respectfully Submitted.


[2] The salutary purpose served by the principles justifying the grant or refusal of an s. 174 application are well entrenched and have been enunciated, developed and applied in many South African court decisions which include the following: S v Shuping and others 1983 (2) SA 119 (B); S v Mpetha and others 1983 (4) SA 262 (C);  S v Phuravhatha and others 1992 (2) SACR 544 (V); S v Lubaxa 2001 (4) SA 1251 (SCA), S v Nakale and others 2006 (2) NR 450; S v Ggozo and another 1994 (1) BCLR (10) (CK); S v Kapika and others (2) 1997 NR 286.  The trial judge is the one making credibility determination at all stages of the trial.  In such situations, the judge has considerably more leeway in granting a motion for judgment of acquittal, at either the close of the prosecution case-in-chief or the close of all of the evidence
[3] ISSUED BY THE PRESIDENCY ON 8 DECEMBER 2008 THE UNION BUILDINGS  http://blogs.timeslive.co.za/hartley/2008/12/08/motlanthe-why-im-firing-pikoli-full-text/


[4] In Erebus (No 2) at p 653, Cooke, Richardson and Somers JJ.
[5] Former Chief Justice Michael Corbett who was white attained retirement age in 1993 but former apartheid President  De Klerk (having consulted with President Mandela in the transitional process then in place) announced that Chief Justice Corbett had been requested to continue in office for a year.  In 1994 President Mandela  renewed the request for Corbett to serve a further two years. There were none of the frenzied shrill voices of the latter day paragons of constitutional virtue similar to those condemning Ngcobo’s extension of term.  Corbett was white and his stewardship of the Court was seen as an assurance of white dominance in the judiciary.
[7]  Very reminiscent of the current tension between NUM and AMCWU in Marikana.  See, http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=324680&sn=Detail&pid=71616

[8] Paul Ngobeni: Will the JSC debunk the myth of white judicial competence? September 18, 2009 http://www.thoughtleader.co.za/paulngobeni/2009/09/18/will-the-jsc-debunk-the-myth-of-white-judicial-competence/


[9] See, Ngobeni: Will the JSC debunk the myth of white judicial competence?  18 September 2009. http://www.thoughtleader.co.za/paulngobeni/2009/09/18/will-the-jsc-debunk-the-myth-of-white-judicial-competence/
[11] See,  s. 22 of the Penal Code which reads as follows: “When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”