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Do the English and South African Criminal Justice Systems Share a ‘Common Purpose’?

Do the English and South African Criminal Justice Systems Share a ‘Common Purpose’? The decision to charge 270 miners from the Marikana platinum mine with the murder of 34 of their colleagues shot by the South African Police Service was greeted with shock. How could workers standing up for their rights be charged with the death of their colleagues? Was the African National Congress cynically using an `Apartheid law'1 to impose its power? In other countries we may well sit comfortably in the belief that such an affront to justice could never happen under our legal systems. But things are not so simple. In fact, there is quite a lot of truth in the assertion by National Prosecuting Authority (NPA) spokesman Frank Lesenyego that the `common purpose' doctrine, under which the miners are being tried, is part of the common law.2 I. TWO FICTIONS Under English law, a violent protest which results in the participants being killed by police officers could also lead to the prosecution of the other protesters. This requires a two-step exercise. Both elements are `legal fictions'. They are devices which the courts have decided to use in order to spread the net of liability wider than natural principles of justice and causation might otherwise dictate, in order http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png African Journal of International and Comparative Law Edinburgh University Press

Do the English and South African Criminal Justice Systems Share a ‘Common Purpose’?

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Publisher
Edinburgh University Press
Copyright
© Edinburgh University Press 2013
Subject
Articles; African Studies
ISSN
0954-8890
eISSN
1755-1609
DOI
10.3366/ajicl.2013.0063
Publisher site
See Article on Publisher Site

Abstract

The decision to charge 270 miners from the Marikana platinum mine with the murder of 34 of their colleagues shot by the South African Police Service was greeted with shock. How could workers standing up for their rights be charged with the death of their colleagues? Was the African National Congress cynically using an `Apartheid law'1 to impose its power? In other countries we may well sit comfortably in the belief that such an affront to justice could never happen under our legal systems. But things are not so simple. In fact, there is quite a lot of truth in the assertion by National Prosecuting Authority (NPA) spokesman Frank Lesenyego that the `common purpose' doctrine, under which the miners are being tried, is part of the common law.2 I. TWO FICTIONS Under English law, a violent protest which results in the participants being killed by police officers could also lead to the prosecution of the other protesters. This requires a two-step exercise. Both elements are `legal fictions'. They are devices which the courts have decided to use in order to spread the net of liability wider than natural principles of justice and causation might otherwise dictate, in order

Journal

African Journal of International and Comparative LawEdinburgh University Press

Published: Jun 1, 2013

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