'Grotesque irony in post-apartheid South Africa' | Law

'Grotesque irony in post-apartheid South Africa'

Associate Professor Andrea Durbach writes in ABC The Drum (5 September 2012).

The manipulation of an English legal doctrine to repress South Africa's striking miners is a grotesque irony in a post-apartheid democracy.

Despite the release over the weekend of the 270 striking miners held on distorted murder charges, there is little space for relief if the doctrine can be invoked to serve unjust ends.

The legal principle at the centre of turmoil which followed the shootings of striking miners by South African security forces at the Lonmin platinum mine in mid-August is, in itself, arguably sound.

Prosecutors most often rely on the common purpose doctrine when a group of individuals plan an unlawful enterprise, like a bank robbery during which a bank teller is harmed. The doctrine makes every participant potentially responsible for the all the consequences of the group's action, including the shooting of a teller, regardless of who fired the gun.

The doctrine became notorious in apartheid South Africa when wielded against political activists, especially during the volatile dying days of apartheid South Africa. However, its use against the striking miners has rightly shocked the world and South Africans hopeful that democracy and the rule of law has replaced apartheid brutality.

The murder charges against the 270 striking miners relied on their supposed common purpose with the South African security forces – none of whom have been similarly charged – who shot and killed 34 miners and injured scores more.

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