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[Article] South African miners charged with murder (they didn't commit)


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From the BBC - http://www.bbc.co.uk...africa-19424484

South African Marikana miners charged with murder

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_62575928_62575559.jpg Six of the 270 arrested miners remain in hospitalContinue reading the main story

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Workers arrested at South Africa's Marikana mine have been charged in court with the murder of 34 of their colleagues shot by police.

The 270 workers would be tried under the "common purpose" doctrine because they were in the crowd which confronted police on 16 August, an official said.

Police opened fire, killing 34 miners and sparking a national outcry.

The decision to charge the workers was "madness", said former ruling ANC party youth leader Julius Malema.

"The policemen who killed those people are not in custody, not even one of them. This is madness," said Mr Malema, who was expelled from the ANC (African National Congress) earlier this year following a series of disagreements with President Jacob Zuma.

"The whole world saw the policemen kill those people," Mr Malema said, adding that he would ask defence lawyers to make an urgent application at the high court.

The killing of the 34 was the most deadly police action since South Africa became a democracy in 1994.

Six of the 270 workers remain in hospital, after being wounded in the shooting at the mine owned by Lonmin, the world's third biggest platinum producer, in South Africa's North West province.

The other 264 workers appeared in the Ga Rankuwa magistrates court near the capital, Pretoria.

Their application for bail was rejected and the hearing was adjourned for seven days.

About 100 people protested outside the court, demanding the immediate release of the men.

'Flagrant abuse'

National Prosecuting Authority (NPA) spokesman Frank Lesenyego told the BBC the 270 workers would all face murder charges - including those who were unarmed or were at the back of the crowd.

"This is under common law, where people are charged with common purpose in a situation where there are suspects with guns or any weapons and they confront or attack the police and a shooting takes place and there are fatalities," he said.

South African lawyer Jay Surju told the BBC's Focus on Africa programme that the "common purpose" doctrine was used by the former white minority regime against activists fighting for racial equality in South Africa.

"This is a very outdated and infamous doctrine," he said.

"It was discredited during the time of apartheid."

The decision has also been condemned as "a flagrant abuse of of the criminal justice system" by constitutional lawyer Pierre de Vos.

The best known case was that of the "Upington 14", who were sentenced to death in 1989 for the murder of a policeman in 1985.

The trial judge convicted the 14 activists, even though he acknowledged that they did not carry out the killing.

_62572843_62572842.jpg The strike has halted production at the mine for three weeks

Anti-apartheid activists around the world protested against the ruling, which was overturned on appeal.

During a visit to the mine after the Marikana killings, President Zuma told workers he "felt their pain" and promised that a commission of inquiry would investigate the killings.

Mr Lesenyego said the commission would rule on the conduct of the police.

"It's a separate case," he said.

The commission and an internal police review are expected to take several months to complete.

Police said they started shooting after being threatened by large groups of miners armed with machetes.

Ten people, including two police officers and two security guards, were killed during the protests before the police shooting.

The protests were triggered by demands for a huge pay rise and recognition of a new union.

Talks are continuing to resolve the dispute, which has shut the mine for the past three weeks.

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Opinion column, also from the BBC - http://www.bbc.co.uk/news/world-africa-19440245

Viewpoint: South Africa shoots itself in the foot

By Ralph Mathekga South African political analyst

South Africa's Justice Minister Jeff Radebe has called for an explanation from the National Prosecuting Authority (NPA) on why 270 striking Lonmin miners were charged with the murder of their colleagues in what has become known as the "Marikana massacre".

This is the question on the mind of many South Africans.

"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," he said in a media statement.

But I think this is merely a facade to create the impression that the NPA's decision has been made independently and the government did not play a role.

There are indications that the government has been meddling with the NPA's decision to prosecute some high profile cases, for example its decision to drop corruption charges against President Jacob Zuma in 2009. The courts ruled that the decision should be reviewed.

Continue reading the main story

“Start Quote

Business relationships between some of the African National Congress (ANC) elites and the mining companies have also been questioned”

The decision to prosecute Lonmin miners may also lend itself to the suspicion that the NPA is tainted by political influence.

In the eyes of ordinary South Africans, the government is trying to appease foreign investors at the expense of aggrieved Lonmin miners who are suffering further victimisation.

At the same time, the government is trying to create the impression that it empathises with the people.

High burden of proof

The miners were charged under the "doctrine of common purpose". Many commentators have already pointed out the absurdity of this charge, focusing particularly on the decision to apply a law commonly used during apartheid.

This highlights two major issues.

Firstly, will the state be able to demonstrate beyond reasonable doubt, as required by the criminal law in South Africa, that the miners had intended to kill their fellow miners during that fateful day?

While the police are clearly on the defensive regarding the role they played during the Lonmin shootings, the NPA's decision to pursue charges against the striking miners raises serious questions as to whether the NPA is being executive-minded in this matter.

The burden of proving criminal liability for murder is very high under South African law.

_62607019_malemaap.jpg Julius Malema says the government is ignoring the plight of the poor

Secondly, what does this latest development mean for those miners still on strike? The murder charges will render it even more difficult to resolve the ongoing stalemate at the mine.

In light of the Lonmin disaster, the state has been criticised as aloof and insensitive to the plight of the miners in Marikana and elsewhere.

Business relationships between some of the African National Congress (ANC) elites and the mining companies have also been questioned.

Julius Malema, the former president of the ANC Youth League, continues to make a compelling case that this relationship compromises the state's ability to mediate in labour conflicts. By pursuing murder charges, the state is seen as choosing business over its people.

This entire situation plays into the hands of President Jacob Zuma's critics who believe that his leadership style has become a liability for the ANC and has to be replaced.

Anyone within the ANC who has intentions to challenge Mr Zuma as the party's president could also use this as a stepping stone to indicate the declining confidence in his leadership, and his ability to deal with crises.

'Bound to fail'

Regarding the Marikana case, the prosecution would have to demonstrate before court that the miners, now murder suspects, had a clear intention to have their fellow colleagues murdered.

Crucially, this can only be done by proving a causal link between the conducts of the miners and the police decision to open fire.

In other words, by charging towards the police, did the miners clearly foresee the possibility of officers shooting and killing 34 miners? Personally, I do not believe they were able to do so.

_62608050_lonminpoliceafp.jpg Police are also being investigated over their role in the Lonmin shootings

This is where I think the state's case would fail irrespective of common purpose.

According to the doctrine of common purpose, had all the miners had an opportune moment to materially commit the crime, they would have done so because they actually had a common intention to do so.

While this law lessens the burden on the state to prove criminal liability on each and every individual separately, it does not lessen the burden to prove connection between the actions of individuals and the resultant crime.

The miners cannot be said to be liable for the decision by the police to shoot and kill 34 miners. The murder charges will not stick, and far lesser charges will have to be considered.

There are currently at least two other investigations into the Marikana shootings, including a probe by the Independent Police Investigative Directorate.

So how would the decision to pursue murder charges against the miners impact upon the impending investigations into the role of the police in the killing of 34 miners?

By pursuing murder charges against the miners, the state aims to neutralise the investigations into the incident, and intimidate miners to keep them from testifying.

This effectively builds a siege environment, under which it will be difficult to attain sufficient testimonies by the miners to ascertain the nature of the conduct of the police in the Lonmin shooting.

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