Common purpose: Thebus, Marikana and unnecessary evil

Authors James Grant

ISSN: 1996-2126
Affiliations: Associate Professor of Law, University of the Witwatersrand, Johannesburg
Source: South African Journal on Human Rights, Volume 30 Issue 1, 2014, p. 1 – 23


This article will engage 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 will conclude that this is entirely possible, on the law as it stands. However, I will argue that the law is not what it ought to be. I will argue 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. I will note also that Thebus does not seem to answer the charge that common purpose violates the dignity of an accused. In addition, I will argue 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, I will argue that common purpose has an effect which can, in many instances, be met with a valid defence of mistake of law. I will conclude 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 our criminal law.