As I reported recently, the NPA, are simply following their legal duty.
Note also this article by Advocate James Grant justifying them: http://mg.co.za/article/2012-08-31-marikana-common-purpose-not-outdated-or-defunct
Must see Press release:
The National Prosecuting Authority (NPA) wishes to confirm that it has brought the following charges against the accused in the Marikana case:
- Attempted Murder
- Public Violence
- Illegal Gathering
- Possession of Dangerous Weapons
- Possession of Firearms and Ammunition
The NPA has noted the public concern arising from the decision to charge the miners with murder. Ordinarily, the NPA does not favour the stance of engaging in public about its prosecutorial strategy. Even in this instance this is no attempt to do so, but to briefly set the record straight as we recognise the significance of this case and the national and international attention it has attracted since it started in the past week.
We would like to stress that decisions in criminal cases are taken on the basis of all the facts available to the prosecution, and not only on what has been captured on television and in other media. The prosecution has evidence that it is confident is sufficient to sustain the charges that have been brought against the miners.
In terms of the law, co-perpetrators may be held liable for the death of members of their group or of others where there is enough evidence of foreseeing that death may result as a consequence of their collective action, and nonetheless proceeding with that action. This approach is based on sound legal principles that are well established in law and there is case law to support the approach the NPA has adopted.
The principle of dolus eventualis is well established in our law see S v Nhlapo and another 1981 (2) SA 744 (A). It holds that a person may be convicted of murder where someone dies as a result of an act by a person who should have foreseen that someone may die as a result of the action, and reconcile himself or herself to possible fatalities.
In such cases, co-perpetrators may be held liable for the death of members of their own group or of others where there was sufficient evidence that they foresaw that death may result as a consequence of their collective action. The NPA believes that the state is obliged to test this principle in court.
It is important to acknowledge that the Marikana incident was not isolated to one day (16 August), to which much media attention is given, but it developed over a number of days during which other people were brutally killed, including two policemen who were robbed of official firearms, one of which was later recovered from the miners.
The NPA wishes to emphasise that this matter has been dealt with at the highest level. Advocate Johan Smit, the Director of Public Prosecution (DPP) for North West and head of the NPA in the province, has personally approved the possible charges based on evidence available.
He is one of the most experienced and longest serving DPPs in South Africa, and personally prosecuted the landmark case of the murder of Constable Francis Rasuge where a murder conviction was obtained without a body being found.
The national head of the prosecutions service in the NPA has also been briefed on the matter, and is satisfied that the approach is sound legally.
Let justice be served.