On Sunday, I was feeling depressed. I had to go to work in the afternoon. I hadn't slept well. It was hot, windy weather; what's calledkhamsin in the Middle East. My left knee injury - the one that kept me out of the Springbok team during the last world cup - was playing up again.
My novel about a guy who offed his wife wasn't going well; actually it wasn't going at all. My 14-year-old daughter beat me at arm wrestling. My wife had arranged for some builders to demolish half of my humble abode - for the umpteenth time this last decade - without arranging for them to put it back together again. The big SIX ZERO was way too close for comfort. (It's on Thursday. Please send cheques c/o the Editor, Politicsweb, or to JG's Bucket Fund cc, Parkview, Johannesburg.)
So, as I was saying, I was feeling very depressed when, lordy mama, the National Prosecuting Authority (NPA) came to my rescue.
They/it appeared on eTV or, as it's now called, eNCA (e News Channel Africa). For some reason - she's been making unexpected appearances at odd times lately - I think it has to do with the launch of the channel in London - the anchor (this on a Sunday afternoon) was Debra Patta or, as Darrel Bristow-Bovey used to call her, Orange Debra (something to do with her tan in winter).
The sight of her always cheers me up. It's something about her winsome attempt at gravitas, something about her wanting so badly to be one of the most influential women in SA (as she told a gathering of women that she indeed is).
With her, everything's a cliff-hanger, dramatic, incredibly serious, just between you and me, on the q.t., and also she has this wonderful machine-gunner's stare, above thin lips.
Anyway, what had happened - in an absolutely stunning display of Seffrican ineptitude and stupidity - the kind of thing that makes people like me, Andrew Donaldson, and David Bullard exhale and relax - because it reminds us that the world, especially the Seffrican world, is in fact as absurd and fugged up as we suggest it is. We have a QED moment, if you follow my drift.
What had happened was that the morons at the National Prosecuting Authority (NPA) had, in the Ga-Rankuwa Magistrate's Court, provisionally charged those Marikana miners, who had not been gunned down by the cops, with the murder of 34 of their comrades.
Come on, now; isn't that cool? Morons United. Not even Vladimir Putin could have thought of that. Geez, not even Andrew Donaldson could have thought of that.
So, as might have been expected, there was a huge and confusing outcry; not every one loves the Kafkaesque quality of Seffrican life as much as I do.
One story was that the miners had been charged in terms of "common purpose". Now I know a little about common purpose; the men I struggled to get out of jail (successfully), Fusi Mofokeng and Tshokolo Mokoena, had been jailed in terms of common purpose.
Pierre de Vos puts it rather elegantly, methinks, in one of his latest blogs:
Section 18 of the Riotous Assemblies Act of 1956 (which, incidentally, was never revoked by the new Parliament and is still on the statute books) states that any person who conspires with any other person to aid in the commissioning of a crime or incites or instigates any other person to commit a crime, is guilty of a crime - as if he or she committed the actual crime him or herself. Incitement to commit a crime is also a criminal offence in our common law.
The Apartheid state often used this provision to secure a criminal conviction against one or more of the leaders of a protest march, or against leaders of struggle organisations like the ANC (and later the UDF) whose members (on the instructions of the leader or leaders), had taken part in sabotage activities or the assault or killing of representatives of the Apartheid state. Even where that leader had not taken part in the sabotage or killing, he or she would be convicted of inciting the assault or the killing.
Later the state began to fall back on the common purpose doctrine, which originated in English law and was introduced into South African law via the ominously named "Native Territories Penal Code". At the time the courts interpreted this doctrine to apply to all members of a crowd who had "actively associated" with criminal conduct committed by one member of the crowd - even if those charged were not involved at all in the commissioning of the crime.
Then the Saturday Star seemed to suggest that it wasn't a matter of "common purpose" but of dolus eventualis (indirect intention). This, as we all of course know, exists when the possibility of a particular consequence or circumstance is or could be foreseen, but there is a reckless disregard as to whether it is going to happen or not.
For example, if my wife were to drive on the wrong side of the road in a busy street knowing full well that she might collide with other traffic and kill someone, but she goes ahead uncaringly - well, we'd have good reason to come after her and her indirect intentions.
But back to the Sunday afternoon press conference and - meet Johan Smit.
He is our secret weapon in this country: a person who is going to restore faith in this country and its systems, especially the legal system. I say: Johan Smit for president. Smit is the director of public prosecutions (DPP) in the North West province. Some say he's a senior counsel (SC); like the canny Scotsman, I hae m'doots about that.
He is the fellow who charged the Marikana miners with murdering their fellows. Now then, he bounced up to the microphone and cheerily greeted the female journalists present as "all the pretty ladies". First of all, it is rather provocative to have referred to that bunch of press corps broads as "pretty". What had this oke been smoking at lunch time?
Second, even a fusty MCP (male chauvinist pig) such as I knows that you don't say that sort of thing any more. Did he have a death wish? Doesn't he know that nowadays chicks do not like to be addressed in such a manner? If Colleen Lowe Morna and/or Lisa Vetten had been there, they'd have found a common purpose and gunned him down without a second thought.
Another thing was that Smit was really dressed up for the event. The tie was pretty common or garden variety Woolworth's, but he was wearing one of those shirts that former President Thabo Mbeki used to fancy - you know, the ones with bird shit on the collars and cuffs. (In the army, we used to call officers "okes with bird shit on their shoulders".) Really, Smit's pretty wife should help him dress in the morning.
Anyway, our Johan then proceeded not to refer to common purpose but to some case about "robbers and cops" (did he mean cops and robbers?):
"During the course of policing intervention in an armed robbery in progress, there is an exchange of gunfire between a policeman and a robber, and the bullet discharged by the policeman kills an innocent bystander, the fact that the policeman was acting lawfully when he discharged the fatal shot does not avail the robber ...
"A case like this, ladies and gentlemen - please remember - it is not a dead thing. It is a live thing. It is being investigated daily. New evidence comes in. We consider the evidence and you might find...on a daily basis [that] you may have to reconsider what you intended yesterday to do, because of new evidence that is valid. It is a live thing, and once that live thing is full-grown and all the evidence has been accumulated, as far as possible, and then the decision is taken to go finally to court with whom, and with what charges."
[I thank Daily Maverick for this verbatim transcript, by the way.]
But then my old china from Moscow (we once were part of the same press junket), Sophie Mokoena, asks what robbers and so forth have to do with a bunch of miners whose brothers have just been gunned down?
Well, our Johan lost his cool. "I am talking about the evidence that I have. I am not in the habit of arguing my cases in the media; I prefer to do that in court. ... Madam, if you feel you are in a better position to argue for the defence, you are welcome to do so."
I thought the DPP was supposed to argue the prosecution's case. Never mind. But did I forget to mention that the point of the afternoon - though the day was somewhat hijacked by Johan - was for Acting National Director of Public Prosecutions, Nomgcobo Jiba, to do a little soft-shoe shuffle and withdraw the murder charges?
This she did. But did you know that the ANDPP is about 12-and-a-half years old - shades of Bulelani Ngcuka! shades of Vusi Pikoli! - and that all that stands between us and lawlessness is Ms Jiba and Mr Smit?
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