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 Periodical article |
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| Title: | Common purpose: 'Thebus', Marikana and unnecessary evil |
| Author: | Grant, James |
| Year: | 2014 |
| Periodical: | South African Journal on Human Rights (ISSN 0258-7203) |
| Volume: | 30 |
| Issue: | 1 |
| Pages: | 1-23 |
| Language: | English |
| Geographic term: | South Africa |
| Subjects: | protest miners liability |
| External links: | https://doi.org/10.1080/19962126.2014.11865095 http://reference.sabinet.co.za/webx/access/electronic_journals/ju_sajhr/ju_sajhr_v30_n1_a1.pdf |
| Abstract: | This article engages with the difficult question of whether common purpose could be successfully used to prosecute the surviving Marikana miners for the murder of their fellow miners, shot and killed by the police. It concludes that this is entirely possible, on the law as it stands. However, the author argues that the law is not what it ought to be. He argues that common purpose violates fundamental principles of criminal law, beyond the arguments traditionally raised. The one traditional argument raised and rejected by the Constitutional Court in 'Thebus', which bears repeating, is that it is a violation of the presumption of innocence to attribute causation and that this is not solved, as the Constitutional Court stated, by placing the issue of causation beyond questions of proof for both parties. The author notes also that 'Thebus' does not seem to answer the charge that common purpose violates the dignity of an accused. In addition, he argues that, contrary to fundamental principles, common purpose punishes evil thoughts alone to the extent that it relies upon subjective thought to establish conduct, and it violates the requirement of voluntariness and capacity for self-control because it allows for liability where the accused did not, and could not, control the conduct in question. It allows for the resort to unreasonable force in response to an attack. Furthermore, the author argues that common purpose has an effect which can, in many instances, be met with a valid defence of mistake of law. He concludes that, if principle is observed, and while fairly broad defences are conceivable, common purpose ought to be abolished as a deep source of embarrassment in South African criminal law. Notes, ref., sum. [Journal abstract] |
