Marikana and the Doctrine of Common Purpose

On 16 August 2012 at Marikana in the North West province a confrontation occurred between a group of about 30 or more police and about 3 000 or more demonstrators (exact figures are not reliably available).  Many or all the police were armed with firearms.  Many or all the demonstrators were armed with blunt and/or sharp weapons, and some of them were armed with firearms.  During the confrontation police fired live ammunition, and several demonstrators were fatally wounded.  Police arrested about 270 of the demonstrators, and it has been reported that the arrestees will be charged, under the doctrine of common purpose, with the murder of the deceased demonstrators.

There has subsequently been a flurry of commentary on the doctrine of common purpose, much of it misinformed.

The doctrine emanates from a mid-nineteenth century English criminal case.  The doctrine is currently part of law in many countries with a historical link to England, including Australia, Canada, New Zealand, and the USA.  The doctrine was not originally part of South African law, and was introduced here early in the twentieth century following the English occupation of South African territories.  In 2003, in the case of the State vs Thebus, in which the accused was charged with murder, the Constitutional Court ruled that the doctrine of common purpose in murder is not inconsistent with the Constitution, and remains part of our law.

Common purpose requires two or more participants in some wrongdoing.  In terms of the doctrine, in a case of common purpose, as a matter of law, the act of one participant in causing the harm is imputed to all the participants.  

For instance, if a victim is beaten to death by four offenders, all hitting him with blunt weapons, it may well be impossible for the State to prove beyond reasonable doubt that a particular offender delivered the actual fatal blow that caused the death of the victim; and, absent the doctrine of common purpose, all four offenders would be acquitted of murder (and presumably found guilty of assault).  Such a result was perceived to offend the legal convictions of the community, and the doctrine was devised.  In this instance, as the four offenders acted with common purpose, as a matter of law, the act of the one who in fact delivered the actual fatal blow will be imputed to all four of them, and under the doctrine all four will be guilty of the murder.  

However, the doctrine, like so many other things, is susceptible to abuse and/or controversy.  It is at present unclear how the Marikana arrestees supposedly had a common purpose to harm fellow demonstrators.  This legal controversy is exacerbating an already untenable situation.