The decision to charge the protesting Marikana miners who were arrested by police with the murder of their 34 colleagues who died at the hands of the authorities is patently misguided. In this regard not only will the state’s efforts to prove the necessary dolus required for murder remain elusive but the alleged employment of common purpose as a means of tying everyone together appears to demonstrate ignorance about where this doctrine has application.
This aspect of the charge has been covered elsewhere by colleagues and will not be repeated here, what I would like to question is the motive behind utilising it.
Why charge these protesters with murder?
The answer lies in the impact of the charge rather than any sustainable belief that the state will be able to secure any convictions.
If the Marikana miners are up on a charge of murder their prospects of obtaining bail are drastically reduced. Murder is a Schedule 6 offence requiring the accused to demonstrate exceptional circumstances that make it in the interests of justice that they be given bail.
If the accused fails to discharge that onus he or she could spend years in jail awaiting trial.
As my learned colleagues are aware, multiple accused often means substantial delays in getting to trial. One need only have regard to the Boeremag trial to understand that where you have many accused the task of getting everyone the necessary documents, finalising applications and getting legal teams to agree trial dates is a nightmare.
Where you have over 200 accused it does not bear thinking about.
The questions therefore are why would anyone try to incarcerate these accused for years, over charges which are clearly unsustainable and in respect of which the cost involved in keeping them imprisoned and running a trial of this magnitude appears prohibitive?
If you can answer that then you will also be able to tell us who is the driving force behind the decision to do so.
The fact that the decision was made before the inquiry designed to ascertain what transpired on that terrible day has even begun its work says a lot about vested interests pulling against each other and demonstrates clearly the problems experienced in allowing politicians and others to tamper with the criminal justice system.