ON May 26, Judge J. Basson sentenced 14 black South Africans to death by hanging for the murder of a black municipal policeman. Judge Basson had earlier found 25 of 26 defendants - known collectively as the Upington 26 - guilty of murder. Yet of the 14 sentenced to die only one was found to have struck the blows that killed the policeman. Ten others had taken no other action against the deceased than to chant and throw stones outside his house. The judge based the conviction and sentence on a theory of criminal liability known as the common-purpose doctrine. The application of this doctrine to political protests in South Africa is ominous.
Traditionally, common-purpose liability has been applied in situations where a few people meet to plan a criminal act that results in a killing. According to theory, the law allocates the same degree of criminal responsibility to all participants in the plan. The classic example has three people planning to hold up a store at gunpoint, with the one who drives the getaway car just as liable for the owner's murder as the two who actually enter the store.
However, the application of the common-purpose theory to mass political unrest is altogether different. These situations include no meeting to plan a violent crime: Events happen spontaneously in the wake of a demonstration that becomes violent after an attack by police or soldiers.
While the demonstrators may share a common purpose of protest, a murder conviction requires a different and specific state of mind. To discern a common purpose to murder among demonstrators thrown together by chance in the swirl of a township march should require compelling evidence that each defendant in fact shared an intent to kill. In the case of the Sharpeville 6, the theory was applied against members of a crowd who were simply on the scene when a killing took place. With the Upington 26, the reach of the common-purpose doctrine has been extended even further.
According to Andrea Durbach, a lawyer working as part of the defense team, about 3,000 residents of the township of Pabalello gathered in a soccer field outside town early on the morning of Nov. 13, 1985, to protest the rent increases in the township. An hour later the police moved in with tear gas to disperse the crowd, forcing people to flee along several routes back to the township. Lucas Sethwala, a municipal policeman, happened to live along one of the routes. A crowd of 300 people stopped outside his house and began to chant and throw stones, since township policemen are seen as government collaborators. Some 30 minutes later, when most of the crowd had dispersed, Mr. Sethwala ran from his house.
The facts as found by the court are as follows: He was seen fleeing and was chased for a quarter of a mile. He was caught in a field, knocked to the ground and then struck twice on the head with the butt of a shotgun by township resident, Justice Bekebeke. These blows killed him. His body was then stoned, kicked, and set afire as a large crowd watched.
The state prosecutor had prima facie evidence to charge Mr. Bekebeke with murder. Yet he chose to argue that the murder arose from the stoning of Sethwala's house. Judge Basson found Bekebeke to be the perpetrator of the murder. He found three others to be principal offenders or ``co-perpetrators'' because they had kicked and stoned the body.
In a mind-boggling extension of common-purpose liability, the judge also ruled that 10 others, acknowledged to have taken no other action against Sethwala than throwing stones at his house and shouting threats, shared a common purpose with Bekebeke - regardless of whether they had even been present at the scene of the murder. The judge held that the act of throwing stones and chanting at the house of the deceased was sufficient basis for inferring they shared an intent to drive Sethwala from his house and kill him.
Basson made this finding despite the fact that the group had coalesced spontaneously after police broke up the community meeting, despite an absence of any premeditated plan to kill, and despite the killing's taking place some 30 minutes after the house had been stoned, when the 10 were not even alleged to have been present.
The purpose of applying the common-purpose doctrine in this fashion is not subtle. It makes participation in a demonstration where the death of a township policeman or official occurs a potentially capital offense. The message to residents of black townships is clear: If you get involved in a protest, you could be tried for murder and hanged.
The lack of a requirement for causal links between the actions of a participant and a killing makes township activists particularly vulnerable targets for prosecution. State prosecutors and some South African judges have turned the common-purpose doctrine into a tool of intimidation and, ultimately, of arbitrary execution.
The use of common-purpose liability in situations of mass political conflict is a new and totally unwarranted development. It is a perversion of criminal law to serve a repressive political end. Its use must be opposed by those who believe the law should serve a very different purpose.
The defense lawyers are now preparing to argue for the right to appeal the convictions and sentences. The right to appeal must be granted by Judge Basson - it is not automatic under South African law. Arguments are scheduled for June 26.