The recommendation of the Farlam commission that some police members can only be charged with attempted murder because it could not be proved which officers had shot which miner is, on the law as it stands, wrong.
It is important to extract the facts that this recommendation appears to concede: that these officers unlawfully fired at the miners with the intention to unlawfully kill them. This places in issue only the link between the conduct of each officer and the death of any miner.
In circumstances such as these, our law resorts to the doctrine of common purpose. It is a controversial doctrine and was certainly abused under apartheid. For what it’s worth, I am opposed to its use and believe that there are adequate alternatives in our law (see James Grant Common Purpose: Thebus, Marikana and Unnecessary Evil 2014 1 SAJHR 1). Nevertheless, common purpose is relied upon in our criminal courts on a daily basis and it has been sanctioned by the Constitutional Court (in the case of Thebus v S 2003 (6) SA 505 (CC)). To my knowledge, the doctrine has never been invoked against the police, but there is nothing in principle why it cannot be used.
The doctrine is designed for exactly the scenario that Farlam says prevents a murder conviction – when one cannot be certain, which one, of a group of attackers, actually killed a victim.
The doctrine holds that each person acting together with others in an unlawful attack, is to be regarded as having done whatever everyone did. So, if A, B and C, agree to attack and kill Y, and that A will stand as lookout, while B will strike Y with a stick, and C will shoot Y, it does not matter that C, in shooting Y, causes his immediate death, all will be liable to a murder conviction for the death of Y. It is irrelevant that B’s conduct (with his stick) only inflicted minor and insignificant wounds, nor even that A is causally irrelevant to the death of Y. Indeed, both A and B are causally irrelevant to the death of Y. Nevertheless, on our law, as it stands, all three may be convicted of murder under the doctrine of common purpose. It is equally irrelevant that it cannot be established which police officer caused the death of which miner.
It is helpful to understand the work that common purpose actually does. It allows our courts to pretend that whatever anyone in a common purpose does, is what everyone does. Thus, on the example above, A does, on our law, what he does, but also whatever B and C does. And so with B and C. B does what he does, but also what A and C does. And so on.
If a police officer can be convicted of attempted murder for his/her part of the attack on the miners, they are almost invariably liable to a conviction of murder – on an application of common purpose. Every police officer who triggers the operation of common purpose, did whatever every other police officer did in that common purpose. Thus, an officer who fired but perhaps missed, also did what his fellow officers in the common purpose did – some of whom fired, struck, and killed the miners – but it doesn’t matter who.
It is true that common purpose has its own requirements and that there are two forms of it. In this case, recognition of these different forms and the requirements of each reveal that it is not only those officers present on the scene who may be convicted of murder, but that liability for murder may stretch up, to anyone who was a party to the plan to resort to the ‘tactical option’, and who foresaw that anyone may be unlawfully killed in the execution of that plan.
The two forms of common purpose are known as prior agreement and active association. Common purpose by prior agreement for murder requires that the parties must, at some prior meeting, foresee the possibility that people may be unlawfully killed upon the execution of their plan (S v Madlala 1969 (2) SA 637 (A); S v Nzo 1990 (3) SA 1 (A)). It is certainly possible that at all and any meetings that discussed the ‘tactical’ option, the unlawful death of miners was foreseen by some. Whoever in those meetings had this foresight – on this form of common purpose – are regarded as having done what they foresaw may happen – even if they were nowhere near the scene at the time of the killing. This has serious consequences, because it allows liability for murder to creep up the chain of command, restrained only by what was foreseen as possible.
The second form of common purpose, active association, is resorted to when the first, prior agreement, doesn’t apply. It is possible that many of the officers who fired their weapons on the day, were at a previous meeting at which they foresaw the possibility of unlawful killing, and thus already satisfied the requirements for common purpose to operate. However, if not, they may have formed a common purpose (by which they can be held liable for an unlawful killing by another officer), by active association, if (Mgedezi 1989 (1) SA 687 (A); Thebus above): 1) the officer was present on the scene; 2) s/he were aware of the attack; 3) s/he intended to be part of the attack; and 4) s/he did something to manifest his/her sharing of the common purpose.
Before we consider how this may apply to the scenario at the scene we must remember what Farlam concedes: that some officers unlawfully fired at the miners and intended to unlawfully kill them. Assuming this, the requirements of common purpose by active association may well be satisfied, as follows: 1) The officers who fired at the miners were present on the scene; 2) They must have known of the unlawful attack on the miners; 3) they must have intended to be part of the unlawful attack on the miners; 4) they did manifest their sharing by virtue of firing their weapons. Thus, even if they are not liable by prior agreement, they may well be liable to a conviction of murder by operation of common purpose by active association.
This is not a suggestion that all officers on the scene are guilty of murder, nor even that those who discharged their weapons are necessarily guilty of murder. It is the argument that if, as the Farlam recommendation appears to concede, some officers unlawfully fired at the miners with the intention to unlawfully kill them, the absence of a link between the conduct of each officer and the death of any miner can be cured by an application of common purpose. It means that if any officer could be convicted of attempted murder, s/he could be convicted of murder. Of course, the opposite is true, but is worth noting: if an officer cannot be convicted of, at least, attempted murder, there will be no basis on which to convict him/her of murder, by an application of common purpose.
Thus, by an application of the doctrine of common purpose, any officer who could be convicted of attempted murder, may be liable to a conviction of murder. Furthermore, liability based on common purpose for any murder may easily creep up the chain of command to anyone in any planning meeting who foresaw that their plan may result in unlawful killings.
– James Grant