James Grant

In one video of the shooting of Mthokozisi Ntumba, it seems that a police vehicle stops where Ntumba and others were walking, two police officers jump out firing their weapons, followed by a third, who is the driver, who is unarmed (except perhaps a sidearm) and who walks into one of the shops. On this understanding of the shooting of Ntumba, there appears to to be a clear case of murder against the officer who actually shot Ntumba – he is guilty of murder if he foresaw that his conduct may cause the death of Ntumba or anyone else. But a question arises with respect to the 2nd officer who jumped out of the vehicle and also started shooting. Another question arises regarding the driver and yet another regarding the commanding officer of these two officers. The reason questions arise is because our law provides that in certain circumstances, what one person does is to be regarded as what others also do. This is the doctrine of common purpose and it is applied on a daily basis in our courts. If it is applicable here, and depending on who it is applicable to, it may mean that every officer on the scene – and the commanding officer – wherever s/he was, is guilty of the murder of Ntumba. Before we commence though, it is necessary to set aside concerns with superior orders. A superior order is only valid if it is not unlawful. Was the order to shoot protestors with metal bullets or at near point blank range with solid rubber bullets lawful? No – it couldn’t have been. To use lethal force on unarmed protestors, and in particular on ordinary civilian passers-by, must be unlawful. I don’t believe that these is any realistic prospect that a court would take a defence of superior orders seriously. But it may well, indeed ought to take the doctrine of common purpose seriously. Common purpose may arise in one of two ways, where there is a prior agreement or by active association. Prior agreement common purpose is formed where two or more people agree to a course of conduct. By ‘agree’ our law takes it that one agrees to all conduct that is foreseen as possible. Thus one does whatever one foresees might be done by someone with whom you have a prior agreement. Did the officers, the driver and the commanding officer agree – foresee the possibility that someone in the group may do X? If so, once anyone does X, it is attributable to everyone in the agreement. Thus, if the commanding officer, the driver, and the other officers were ‘agreed’, it doesn’t matter who fired the gun which killed Ntumba – under our law, they all fired the gun which killed Ntumba. And so on up the chain of command as unlawful decisions and instructions were given while foreseeing the possibility of the death of innocent civilians or unarmed or otherwise peaceful protesters. There is no reason that this liability can’t creep all the way up the chain of command to whoever was ultimately in command of the Saps response, and then perhaps further still. Common purpose may also arise by active association. Both officers who jumped out of the police vehicle seem to fire either metal bullets or solid rubber bullets at close range. To form common purpose by an active association one need only be present, know of the attack upon the civilians, intend to form common cause with the other, and do some act which shows your association. It seems to me that both officers were present, both knew of the attack upon the civilians, intended to form common cause with the other, and both did some act (fired at civilians) which shows their association. Thus, at the very least, the two officers seem to have acted in common purpose so that, in law, arguably, both murdered Ntumba. I expect that there was probably some mix of common purpose by prior agreement and active association that ultimately killed Ntumba. What seems clear though is that it will not be enough for the police to pretend that this was the work of one crazed lone gunman.