Legal precedent for murder charges - NPA

2012-08-30 22:39

Johannesburg - National Prosecuting authority spokesperson Frank Lesenyego said on Thursday that the law  under which the 270 Lonmin miners were being charged with the murder of their colleagues has been used before.

The miners are being charged with the deaths of 34 colleagues who were shot dead by police during violence at Lonmin's Marikana mine, under the common purpose law.

Lesenyego said it was case law, meaning it has been used in previous cases and that there is legal precedent even though it is not in the constitution.

"The State has placed murder charges against all of them. Finer details around the charges will emerge in court when their bail application starts next week," he said.

He said every one of the miners was being charged with murder, attempted murder and public violence.

Earlier, Magistrate Esau Bodigelo ruled that the group be kept in custody as not enough information had been provided to start their bail applications.

"My ruling is that it will be in the interest of justice that the State be granted another postponement not exceeding seven days. This matter will be postponed until next week."

The matter resumes next Thursday.

'We must be strong'

Expelled ANCYL president Julius Malema said charging the 270 miners with murder was madness, Sapa reported.

He was speaking after the postponement of the case

"The policemen who killed those people are not in custody, not even one of them. This is madness," he told protesters at the Ga-Rankuwa Magistrate's Court, outside Pretoria.

"The whole world saw the policemen kill those people. We are going to be seized (sic) with this matter. We have asked the lawyers [representing the 270 men] to consider making an urgent application at the High Court."

Malema said arrangements had been made for the group to be held at the Pretoria Central Prison and the Mogwase Prison, in the North West.

"At the prisons, the comrades will not be mixed with other people already serving sentences there. Their families will be allowed to visit them," Malema, speaking in Sotho, told the crowd.

"Visiting days at the prisons are Tuesdays and Thursdays. We are going to get the lists [of which members of the group are detained at which prison] and will give them to your leaders. We must be strong."

Malema urged the protesters to remain steadfast and to return to court next week for the group's next appearance.

"We will come back next week, hopefully in larger numbers. We must not be demoralised by this postponement," he said.

"We have organised lawyers for these comrades. We have organised buses for you to go to the funerals this weekend."

Malema was introduced to the protesters as "president" by suspended ANC Youth League spokesperson Floyd Shivambu.

  • nardus.pretorius.5 - 2012-08-30 23:02

    Why is there still reference made to JM as the expelled ANCYL president? Can he not just be referred to as "some person of no importance what so ever"? He has as much relevance in speaking to the public as I do. I'm sick and tired of hearing anything he has to say, and I know for a fact I'm not the only one who feels this way. Cut him out of all media, maybe then he'll shut the hell up!

      leon.scheepers.58 - 2012-08-31 06:17

      What is happening here is VERY dangerous....the masses are led like sheep....calling JM president before them may very well make some uninformed, uneducated, illiterate, superstitious guy think that he actually is president...

      sandra.j.rennie - 2012-08-31 09:57

      Ignore the Fool ! He is of no importance - only to the sheep that follow him blindly!

      AyGeewils - 2012-08-31 10:22

      I think Malema is a director of N24 and they have an agenda to see him as president of SA - Sycophantic and pathetic - virtually every news item has to have his ridiculous comments attached!

      alf.pop - 2012-08-31 14:07

      Better still - ignore him completely. Let him spend his time playing hide and seek with his chum Shivambu!

  • christelle.james.7 - 2012-08-30 23:02

    I certainly hope they go ahead with this and make an example of what happens when laws are transgressed. Furthermore, an example to miners who foolishly want to follow Malema in making mines ungovernable. You can think you are above the law, but it appears it is not so.....

      psalm.proverb.3 - 2012-08-31 11:39

      @ Christelle, What you are hoping for is, in fact, contrary to the principles of a sane legal system. The miners are being charged with the death of their fellow miners - who were killed BY THE POLICE. That's a bastardization of justice. I would be very surprised if the NPA suceeded in this vendetta. How do they expect to prove that there was an intention, on the part of any accused, to kill the 34 miners? The bullets that killed those 34 were police bullets. As you are in support of this shocking abuse of the law by the NPA, I hope you will never complain if you are ever a victim of such an appalling blatant disregard of sound legal judgment.

  • mogale.tshidi - 2012-08-30 23:14


      glen.e.huysamer - 2012-08-30 23:31

      You on the mark but the previous government sucked tits the new one is no better.

      hein.huyser - 2012-08-31 05:44

      @mogale, we all wished for a true democratic government to replace the old regime. Sad but true. I have to agree with you, the anc have failed us as badly as the np of old.

      kevin.watson.7906 - 2012-08-31 09:09

      So accurately and succinctly put. It reminds me of an incident at a political meeting in Worcester in 1969 where NP members assaulted members of the HNP and the police charged one of the HNP members with assault. His statement on the witness stand was "I suppose I threw the chairs at myself and then threw myself off the stage and landed on my head and so caused my serious injuries."

      steve.ritchie.739 - 2012-08-31 11:02

      Yup Mogale. Very true. Things are so very complicated now. At least with the NP, you knew where you stood.

  • khwanis - 2012-08-30 23:59

    eish ya

  • khwanis - 2012-08-30 23:59

    Pure madness

  • mario.dippenaar - 2012-08-31 00:17

    In the US they have a similar law called Felony murder. If two men rob a store and the clerk shoots one of the robbers, then the surviving robber will be tried for murder. This is because he didn't do what an ordinary law abiding citizen would do and discouraged his partner from commiting the crime. So the fact that not one miner said, "hey guy, this is stupid, let's not attract the police" means that they should all be charged with proxy murder. And before you say it is a old Apartheid law, it isn't. It's a law that predates The limit of legal memory.

      mario.dippenaar - 2012-08-31 00:19

      *attack... Honestly News24, how hard is it to program an edit button?

      sally.lewitt - 2012-08-31 03:59

      We live in SA! Seems like our government make up their own law as the go along.. Dangerous!

  • gghtssmop - 2012-08-31 01:20

    This is purely stupid!!!

      hein.huyser - 2012-08-31 05:59

      @wellie. This is what responsible citizenship require of you. If, by your actions place me in such a situation that the outcomes could have been foreseen and predicted by a reasonable person, then you are as guilty as me. Most people do not understand what responsibilities a democratic society demands of citizens, and thats at the foundation of the squibles between a lot of people. Some are educated in democratic citenzinship and others see it as a licence to act the way they wish without consequences. And don't worry Wellie, half your government don't understand this either, or at least, they act as if they do not.

      thomas.obrian.92 - 2012-08-31 06:13

      @ hein, I support you 100%

      dnxumalo2 - 2012-08-31 06:49

      wellie is right stricking is allowed in south africa and these people did not call any police.whoever sent police to the mine caused the situation to take place then.also who ever decided that live ammunition should be used and not rubber bullets and water canons should be arrested.miners would have to be accused only if water canons and rubber bullets were used to kill the people.they had no control on choice of ammunition whatsoever.

      hein.huyser - 2012-08-31 09:07

      @dnx, the miners had a right to strike, nobody denies that, but they had NO RIGHT in killing ten people, and that is what caused the police to get involved. Their own actions called the police.

  • dee.980 - 2012-08-31 01:26

    More and more disturbing ..... birth of fascim in the extreme for those who don't toe the line with ANC and Cronies? For EXTREMELY distrurbing reporting, but excellent journalism - this is really worth reading :

  • blip.noodlum - 2012-08-31 02:29

    They're probably working on the point of law called "the doctrine of common purpose" used to punish 25 people for killing one policeman (Constable Lucas Sethwala) in 1985. The mob were throwing stones at the cop's house, so he fired his weapon at them. They then set upon him in a rage and killed him. Fourteen of them -- "The Upington 14" , including a grandmother, Evelina de Bruin, -- got the death penalty and the others got custodial sentences from Judge Basson, even though there was no way the State prosecutors could ever pin the deed on any one or two or three identifiable accused. Human rights advocates all over the world roundly condemned the apartheid government for invoking this "doctrine of common purpose". In 1991 the Appeal Court overturned the verdict and convicted all but three of them on the minor charge of public violence and they were released for time served.

  • Steven Trollip - 2012-08-31 04:27

    When will this fat face boy P@es shut the f@uck up

      AyGeewils - 2012-08-31 07:23

      I am not given to profanity - but the moment I saw 'Expelled ANCYL president Julius Malema said' I exploded! WTF has he got to be in every report from N24 - makes me want to vomit!

  • piet.boerie - 2012-08-31 05:13

    Diferent government, same system, same beneficaries. Aparthied was an econonmic policy started by the British, continued by the NP to get people off the land (read early stories of Govenor Generals trying to get more mine labour) into work in the mines and reliance on money and not self sufficient subsistance farming. The same super rich benfit now as under successive British, NP and Alliance governments. In a Democracy we still use oprression laws from the previous regimes to control our people. Race is still used to divide us when the real enemy of the working man has once again corrupted another government.

  • brionyl.french - 2012-08-31 05:24

    Charge them, because the murders wouldnt have happened if they didnt start the strike... When people die in clashes like this those people need to take a hard look at themselves as they are murderers for being there...

      hein.huyser - 2012-08-31 06:11

      @Frenshie andnxumaloj. They had a right to strike, no argument there, but any reasonable person could've foreseen that to charge an armed man with a knobkierrie and a panga had only one outcome. That could've been prevented, and for that they must take responsibility. They and their leaders. Democracy calls for responsible citizens, and those actions were not responsible actions,. The moment they went from striking miners to miners charging down on armed policemen with their yeilding pangas, they went from in the law to against the law and that makes them all guilty. The least that must happen here is that we all, collectively must learn a lesson in democratic responsible citizenship, and what it really means. Maybe then we will move forward in SA, but as long as people (some) just do as they please without taking responsibility for their actions, our young democracy is doomed

      hein.huyser - 2012-08-31 09:09

      @QQ, cheap shot there. Reverse argument, but a good try:-)

  • Tobie Vd Vyver - 2012-08-31 06:41

    WTF is malema doing there? Why is he sticking his nose into everything? He needs to disappear or shut the hell up! Always trying to score points...

      hein.huyser - 2012-08-31 09:12

      @Tobie, do not be surprised if he sat behind the whole strike, new union etc. This guy will destroy everything in its path to the top, even fellow citizens, which he sees as colatoral dammage or cannon fodder. His own people must see him for who he is, then only will he be exposed

  • ingi.raikes - 2012-08-31 06:49

    Nail the Bastards!!! When they all arrived with their 'weapons', they meant business and what about the two security guards and two policemen which were savagely killed??? Nail Malema too at the same time, he is banned. B A N N E D!!! Why is he still shouting off his mouth which looks like a dogs 'chocolate starfish'???

  • dnxumalo2 - 2012-08-31 07:05

    The miners common purpose was to strike for a raise of salary scale.The common purpose of govenment and police was to kill the miners.Is it also a law that does not appear in the constitution that police should use live ammunition when dispersing crowds? I would fully agree with NPA if the people were killed using the legal methods to disperse crowds i.e water canons and rubber bullets.whoever decided that live ammunition should be used should be charged with masterminding the common purpose of the police to kill people.thats my ruling.Acccountable and responsible government!

      AyGeewils - 2012-08-31 07:52

      why all the weapons - and the killing of ten people - what does that have to do with striking for higher wages? Their common purpose - AFTER being inoculated (Ghomiwe) by a Sangoma to protect them from POLICE BULLETS and to cause the police GUNS TO MALFUNCTION - was to MURDER POLICE OFFICERS.

      jws.paterson - 2012-08-31 08:01

      Why then had they killed 10 people, if they were only striking for pay. Why then were some of the people killed not even miners? What you're saying does not make sense: police didn't go there to kill. Miners already had killed. Police had been using water cannons and tear gas ALL DAY already. Just consider this simple fact: if strikers had acted within the law, would anyone have died?

      dnxumalo2 - 2012-08-31 08:30

      Fair enough but we could still argue thath the arrested miners did not die because they were by standers.Those that were killed were the ones who had an urge to attack and kill.Meaning all the killers were killed unless we can prove beoyond reasonable doupt that the people in custody had weapons in their posession when they were captured.regardless, looking at the numbers of people arrested versus those who got killed, can we surely state that more that ten weapons were used to kill each person.Because as far as I know two people can be arrested for shooting dead a person but eventually the triger man must be held accountable.who hacked a police officer and who pulled the trigger that killed this miner.You guys should know better that if someone attacks you at your home and you kill them the case still has to go through court sessions to identify the reasons and to see if you were really protecting yourself or it is you that was in the wrong.

      jws.paterson - 2012-08-31 08:32

      They were arrested on site. They were part of the group involved in the shooting. When you've been ordered to disburse, and you don't, there is no longer such a luxury as an "innocent bystander". As for weapons; they wouldn't necessarily need weapons in this instance. It's a reasonable assumption that they weren't rushing up to the police to discuss macroecnonmic policies, and the latest JENGA strategy. Their disregard for the law got people killed. Not the fact that they had a gun/knife/panga in their hand.

      dnxumalo2 - 2012-08-31 08:44

      But I wonder if you saw the news report stating that miners rushed to the other 'wing' of the police because the other wing was shooting at them.they were seeking protection or they were trying to used the other wing to shield themselvs from continued to say that most of the people were shot from the back.yesterday or day before on e news.

      lukombo.cliff - 2012-08-31 09:23

      Let us not forget that among those previous ten deaths, 3 were already caused by the police!

  • raymond.kok3 - 2012-08-31 07:06

    what about the common purpose of the police to kill ,they were out for revenge it will be a cold day in hell if they find any of the miners guilty of murder.where is advocate Norman Arendse or William Booth when you need them, come guys there is money to be made from the goverment moocho moocho money

  • andre.vandeventer.16 - 2012-08-31 07:21

    I suppose it is all about the causality, in other words, was the death of the deceased caused by the actions of the still living.

  • martin.britchford.9 - 2012-08-31 07:21

    When you charge the armed forces and it results in the death of your mates, you are responsible cos if you behaved it would never have happened.

      AyGeewils - 2012-08-31 07:56

      It astounds me why so few can understand that obvious fact!

  • samuelbowker - 2012-08-31 07:45

    They could have protested peacefully, but they broke the law by carrying weapons and inciting violence. These simple bastards don't know the difference.

  • dolce.mapheto - 2012-08-31 07:47

    People fought for a true democratic government to replace the old regime. ANC or NP, all have failed its people. The NPA should charge the ANC Government with murder, they should be in those prison cells. THIS IS SICKENING

  • Dlangalala Teddy Jabulane - 2012-08-31 07:55

    ha ha ha..... what the fak! My advise to the legal representatives of the miners is that go and make representations to the DPP. Here is your version: All those who are in custody were bystanders and the deceased were the perpetrators. This case is not winable. Prosecutors are just creating a room for mass legal action viz wrongful arrest.

      AyGeewils - 2012-08-31 08:03

      what about video evidence that can identify individuals - all these murdering strikers were brazen enough to show themselves to the media.

      jws.paterson - 2012-08-31 08:04

      That makes no sense at all. I would advise those arrested (they aren't all miners, by the way) to not seek your legal opinions; they may just end up in more trouble. I am, however, interested in this "wrongful arrest" bit. You're not trolling here, right? Illegal strike, public disorder, charging the police. 10 people dead already (at their hands). And you're claiming wrongful arrest?

      dnxumalo2 - 2012-08-31 08:13

      In the end the people will be happy to have worn the case and there will be no dark cloud hanging over govenment..what in idea!

  • psalm.proverb.3 - 2012-08-31 08:51

    Oh, the wonderful irony will not be lost on some! "Common Purpose" is the controversial principle that was often thrown by the Apartheid regime at freedom fighters and Black protestors. The reality is that by resorting this principle ONLY NOW, the NPA is appears to be resorting to politics of controversy. To my knowledge (and I may be wrong here), common purpose has NEVER been used by the NPA against rioting Cosatu or its affiliated unions. It has NEVER been used against service delivery rioters even where death resulted. Now the NPA has pulled the genie from the bottle! Why only now? Afterall, common purpose should have been used against ALL groups of rioters/protestors. Why only this group? Time for the popcorn...

      raynard.looch - 2012-08-31 09:25

      @Psalm. YOU get a grip! The judge accepted that Motloung was responsible for the actual killings, but since he had been so brutally beaten during the course of his capture, he had suffered severe brain damage and was unfit to stand trial. However, as common purpose had been formed, Mahlangu was therefore found guilty on two counts of murder and three charges under the Terrorism Act. He was sentenced to death by hanging on 2 March 1978.

      psalm.proverb.3 - 2012-08-31 09:35

      @ Raynard, Again, 1978 was during APARTHEID. Do get a grip.

      psalm.proverb.3 - 2012-08-31 10:03

      @ Raynard, Now, for your lesson in criminal law and Constitutional law: please see an article by Prof Pierre De Vos who, as I have JUST discovered, supports my point. De Vos considers the NPA common purpose decision "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." He states further "under increased internal and external pressure from opponents of Apartheid, the state relied more and more on the provisions of the Riotous Assembly Act as well as the common purpose doctrine in an attempt to CRIMINALISE the actions of all people involved in PROTEST against the National Party government."

  • jbm.moate - 2012-08-31 08:52

    What a wonderful country we live in... the only precedent this case will give is that NO ONE IS ACCOUNTABLE for their crimes in this country... "(Rea Phiyega, the police minister and the police should be charged with these murders) they might as well charge the murdered miners as well...

      hein.huyser - 2012-08-31 09:21

      @JBM! If you can't see that the opposite is what they (the police) are trying to achieve then we have a bigger problem here. Deocracy demands responsibility from all its citizens, and if you, by your actions have forced me to disobay the law then you have first guilt. You can not charge me with a wielding panga and be surprised or call foul if I defend myself. So how do you think the police should've acted when a bloodthirsty mob, who already killed ten people very, very, very violantly, charged down on them? Invited them for tea? These striking miners went overboard and the police defended themselves. They are fathers and sons as well, they have a right to life as much as the next person. First guilt lies with the leaders and organisers of this strike as well as collectively with every person aiming at killing those cops

  • raynard.looch - 2012-08-31 09:24

    @Psalm. YOU get a grip! The judge accepted that Motloung was responsible for the actual killings, but since he had been so brutally beaten during the course of his capture, he had suffered severe brain damage and was unfit to stand trial. However, as common purpose had been formed, Mahlangu was therefore found guilty on two counts of murder and three charges under the Terrorism Act. He was sentenced to death by hanging on 2 March 1978.

      psalm.proverb.3 - 2012-08-31 09:34

      @ Raynard, My apologies, I thought you were talking about another Mahlangu - more relevant to the democratic dispensation. The fact remains, 1978 is prior to 1994 - under the Apartheid regime. Feel free to read my first comment on this irony - or not.

  • Trevorcentury - 2012-08-31 09:41

    Julius and his bum chum floyd should be arrested for trying to incite violence

  • mickey.mouseman.581 - 2012-08-31 10:01

    Why only 34 charges of murder?? What about the other 10 people they brutally killed?

  • elaine.greenblatt.1 - 2012-08-31 10:03

    Can they prove "intent"

  • dnxumalo2 - 2012-08-31 10:20

    In the interest of the wonderful Common Purpose (CP) please do me a favour and arrest the bosses of the two Unions who encouraged these miners to go on strike.Next time the Youth League breaks my lights and robots do the same to them as well.I wonder if thers someone who will get arrested for the common purpose of dubula song that malema went to court alone for previous.

      boltonbarry - 2012-08-31 11:55

      Yes they have to be arrested to for enticing violence and while you aer at ti arrest that sangoma too

  • Linds - 2012-08-31 11:15

    There is a similar principle used to convict people before 1994 - "guilty by association." I do not think it will pass constitutional master.

      boltonbarry - 2012-08-31 11:52

      WHAT????? Please show us where this was written down as law!!!!!!! I have never in all my years as an ex policeman heard of anyone being convicted because of this and please please show me a one case that this was the judgement one

      Linds - 2012-08-31 12:04

      The most prominent case is that of two Bethlehem ANC members convicted of murder in the early 1990s through this principle. They were not even at the scene but were still convicted. They were sentenced to life and were released and pardoned about 2 years ago (after a human rights lawyer took up their case). So go read up.

      Linds - 2012-08-31 12:15

      I have just realised that "common purpose" and "guilty by association" are one and the same principle. But still go read it up.

  • martin.mcghee.54 - 2012-08-31 12:17

    If "President" Malema should ever become a reality then I will thankfully no longer have to defend my expat status.

  • jacques.grove1 - 2012-08-31 12:52

    What everyone here must understand is that this never was a wage strike. If Lonmin had paid up the 12500, they would just have asked for more. This is a planned agenda. Julius Malema and his cronies want to nationalise the mines. Easiest way, simply demand unpayable salaries, grind the mines to a halt and then the government HAS to step in. Nationalisation achieved. Do not think Julius Malema is not involved in this from the word go. This is a planned and orchestrated event, and this is supported by the fact that this is now popping up everywhere. Miners represent a huge voting block, and there is no simpler way to pave Malema's ascension to the presidency. What people must remember is that Malema is using the miner vote, and if there were an easier way to do it, he would not consider the miners or their welfare for one second, had there been a bigger block of voters that he could get on his side with his antics. I just hope that, for now, the true ANC sees this, and has the power and will to prevent this from happening.

  • raynard.looch - 2012-09-01 07:21

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