Statement on Marikana court case by Acting National Director of Public Prosecutions (NDPP), Advocate Nomgcobo Jiba

2 Sep 2012

As the National Prosecuting Authority (NPA) we would like to add our voice of concern and distress to the national tragedy that unfolded in Marikana. We also express our condolences to the families and all those affected.

The NPA has noted the concerns voiced on the charges brought against the miners who were arrested in Marikana. The NPA views the public violence that resulted in injury and death of so many people in a very serious light. In view of the significant public interest in this matter, I have decided to call this press briefing to explain our decisions as well as provide direction on this matter.

It is the duty of the NPA to prosecute those who are responsible for all crimes that have been committed in the series of events associated with this incident, and we will not hesitate to prosecute without fear, favour or prejudice wherever there is evidence of criminality by anyone.

In terms of the NPA Act, Directors of Public Prosecutions are heads of prosecutions in their respective areas of jurisdiction. They are responsible for prosecutions in their respective areas of jurisdiction and they therefore have the legislative mandate to take the primary decisions with regard to prosecutions.

The National Director of Public Prosecutions, in terms of the same Act  has powers to review prosecutorial decisions taken by Directors of Public Prosecutions after consulting the DPP and taking representations from the complainant and the accused.

In this specific case of the Marikana miners, all decisions, including those to add murder charges were taken by the DPP for the North West, Adv. Johan Smit SC and members of his prosecutions team.  When I picked up the various concerns from various parties reported in the media, I sent Senior Deputy Directors in my office to observe the court proceedings and to establish the status of the case.

I subsequently requested a full report from the Director of Public Prosecutions, Adv Johan Smit for a report explaining the rationale for charging the miners for murder. Adv Smit duly submitted the report to me on Friday afternoon.

I also received a copy of the representations addressed to the President by the attorneys representing the accused persons late on Friday, 31 August 2012, to which I was copied.

I convened a meeting of the leadership of the NPA the following day, Saturday, 1 September to consider the report and the representations, and to further consult with Adv Smit where we required clarification. I then decided to review the decision of the DPP to add murder charges, and then consulted the DPP, and the National Commissioner of SAPS and the Provincial Commissioner for North West, Gen Mbombo, as required by the NPA Act.

I wish to emphasise that the decision to institute murder charges against the miners is based on a sound legal principle which has not only been part of our legal system for decades, but continues to remain relevant and applicable in our democratic dispensation.

The NPA has applied the principle in many cases before. Its application to this specific case would therefore not be unique.

It is set out in the case of S v Lungile and Another 1999 (2) SACR 597 (SCA) and is to the effect that where a group of armed robbers meet resistance and a violent confrontation ensues during which one of the robbers or bystanders is killed by either the police or co-robbers, then the co-robbers may be charged with the murder of the co-robber or bystander in the instance where they foresee the death and reconcile themselves with the it. See also S v Nhlapo and Another 1981 (2) SA 744 (A) and S v Dube and Others 2010 (1) SACR 65 (KZP).

It must be emphasized that the DPP's decision was not a final decision on the charges that the suspects are to face.  That decision will be made when investigations have been finalized and all factors taken into account and a formal indictment with final charges has been served on the accused before the commencement of trial.  At this stage the investigations in this matter are far from being completed. 

In our deliberations, the NPA has taken into account the following factors:

• The President has announced a judicial commission of inquiry into the incident and the ANDPP has received and considered the scope of the work of the commission. 
• The Independent Police Investigative Directorate (IPID) is also conducting investigations relating to the conduct of the police on the day of the incident.
• The police are also continuing with their investigations against the suspects with regard to their conduct.
• The scope of the commission is broad and involves the conduct of both protestors and the police who must be afforded an opportunity to present them and participate in the commission.
• The commission has to finalize its work within four (4) months and shall where appropriate refer any matter for prosecution or further investigation.

Following the intense deliberations by the leadership of the NPA and after consulting the leadership of the police, I have taken the following decision:

• The decision and pronouncement on final charges to be preferred against any person/s involved will only be made once all investigations have been completed.
• The murder charge against the current 270 suspects, which was provisional anyway, will be formally withdrawn provisionally in court on their next court appearance.  Other provisional charges will remain.
• The protestors are to be released conditionally on warning and their case postponed pending the finalization of investigations including the investigations by the commission.  This will be done in phases as follows:
  • Those whose physical residential addresses that the police have been able to verify will be requisitioned for court tomorrow, Monday 3 September 2012, and an application made for their release from custody.
  • Those whose physical residential addresses have not been confirmed by the police will remain in custody until the next court appearance which is, Thursday, 6 September 2012.

Police will work around the clock to verify their addresses to ensure that they may also be released.  In this regard we request that they cooperate with the police and furnish them with correct addresses. 

Thank you

Statement issued by the National Prosecuting Authority, September 2 2012

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