adminThe murder charge — and associated charges for the attempted murder of 78 miners injured at the Marikana mine — was brought by the National Prosecuting Authority under an obscure Roman-Dutch common law previously used by the apartheid government.
The move came as the men appeared in court charged with public violence over the clashes at the Lonmin platinum mine on August 16 when striking miners armed with clubs, machetes and at least one gun allegedly charged at the police, who opened fire.
Justice Minister Jeff Radebe has, meanwhile, demanded that the NPA explain why the 270 arrested miners were facing murder charges.
“I have requested the acting National Director of Public Prosecutions, advocate Nomgcobo Jiba to furnish me with a report explaining the rationale behind such a decision,” Radebe said in a statement yesterday.
“Section 179 (6) of the Constitution reads: ‘The Cabinet minister responsible for the administration of justice must exercise final responsibility over the prosecuting authority’.”
Initially, the arrested group was charged with public violence. On Thursday, the NPA announced they would also face murder and attempted murder charges for the death of their colleagues.
Julius Malema, the former African National Congress Youth League leader, who has called for President Jacob Zuma to resign over the “massacre”, told supporters of the miners outside the courthouse that the charges were “madness”.
“The policemen who killed those people are not in custody, not even one of them,” Malema told protesters at the Ga-Rankuwa Magistrate’s Court.
Radebe said in terms of the NPA Act, the NDPP had to provide the justice minister with information or a report regarding the case, and give reasons for any decision taken.
“There is no doubt that the NPA’s decision has induced a sense of shock, panic and confusion within the members of the community and the general South African public.
“It is therefore incumbent upon me to seek clarity on the basis upon which such a decision is taken,” Radebe said.
Law expert Pierre de Vos has described the NPA’s decision as “shameful” adding that it flouts South Africa’ Constitution.
De Vos said the NPA Act requires every member of the authority to act without fear, favour or prejudice.
“Instead they have acted with fear, favour and prejudice to advance some or another political agenda, further eroding the little trust South Africans might still have left in them,” he wrote on Thursday night.
“It is, indeed, shameful.”
De Vos said the decision represented “a flagrant abuse” of the criminal justice system.
“Unless what we saw on our TV screens never happened or unless the NPA is hiding shocking and bizarre conspiracy theory-type evidence from us…. there could be no possible valid reason for the NPA to have charged the miners with murder…” he said.
He said even if the miners provoked the police, this could never make them liable for the killings.
“Perhaps they (the NPA) are clumsily trying to stigmatise the miners in the eyes of the public…. Maybe they are trying to intimidate the miners in an attempt to break their spirit.”
The Congress of SA Trade Unions (Cosatu) said it was outraged by the decision.
Spokesperson Patrick Craven said it exposed the lack of proper training within the SA Police Service and the NPA for failing to find evidence and charge those responsible for the offence.
“The NPA should have waited for the findings of the judicial commission of inquiry, which is tasked with uncovering the truth…before jumping the gun and laying such charges,” he said in a statement on Friday.
“It is showing its contempt for the inquiry and potentially jeopardising its independence and relevance by pre-judging the arrested workers on the basis of their own version of the facts.”
In an open letter to President Jacob Zuma, the United Democratic Movement (UDM) called for an intervention in the matter.
“The police have blocked every attempt by the mineworkers to get bail because they claim that they are still busy with investigations,” the party’s president Bantu Holomisa said.
“Yet, the NPA has already taken a decision to prosecute the mineworkers even though the investigation is incomplete.”
He said this undermined the role of the commission of inquiry.
“We call on you (president Zuma) to halt the unfair prosecution of mineworkers and to urge everyone to allow the… inquiry get to the bottom of the Marikana massacre.”
However, the NPA has defended its position arguing that there is a legal precedent for the murder charges. NPA spokesperson Frank Lesenyego said on Thursday that the law under which the 270 mineworkers were charged with the murder of their colleagues had been used before.
Lesenyego said it was case law, meaning it has been used in previous cases and that there is legal precedent even though it is not in the constitution. “It’s the police who were shooting, but they were under attack by the protesters, who were armed, so today the 270 accused are charged with the murders (of those who were shot).” – Sapa/guardian.co.uk.
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