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 law” as 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 Safatsa … it 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.
[1] http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=320136&sn=Detail&pid=71619
[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.
[6] http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=320136&sn=Detail&pid=71619
[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.”
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