Prosecutors are using apartheid-era laws to charge 270 Marikana miners with murder after their colleagues were shot dead by police. But one expert tells Channel 4 News the charges "will never stick".
Authorities have charged the group with the murder of 34 of their co-workers, who were killed while protesting at the Lonmin platinum mine at Rustenburg.
The incident was the worst day of police violence in South Africa since the end of white-minority apartheid rule in 1994.
Under the 'common purpose' doctrine, which has rarely been used since apartheid, prosecutors will argue that the miners were complicit in the killings because they were arrested at the scene with weapons.
But constitutional law expert Pierre de Vos, from the University of Cape Town, told Channel 4 News that the case would fall apart.
He rejected the use of the common purpose doctrine, which allows an entire group to be charged for the crimes of one person, provided they have the same intention.
It simply can't work under the common purpose doctrine. They would have to prove that all the miners, including those who were unarmed, had the same intentions as the police. -Pierre de Vos, constitutional law expert at University of Cape Town
"It simply can't work under the common purpose doctrine. They would have to prove that all the miners, including those who were unarmed, had the same intentions as the police.
"I very rarely make predictions with the law, but in this case, I can say unequivocally, that it will never stick," Mr de Vos said.
He said the ANC's use of 'common purpose' was "extremely controversial" and was likely to shock many South Africans.
"It begs the question, why were they arrested in the first place? There must have some other reason to do this that's not to do with criminal conviction.
"A murder charge might make it easier to convince the court not to grant bail. Or it could be an attempt to intimidate the miners. But it's difficult to say why it happened when we don't know exactly who made the decision.
The government has already been fiercely criticised over the shooting, which has been dubbed the "Marikana massacre" and compared to the atrocities committed by apartheid-era police.
A commission and an internal police review have been launched into the shootings, but they are expected to take several months to complete. Authorities say any decision to charge police will be made after the results of the inquiry.
But Mr de Vos told Channel 4 News that the same rule should apply to charging the miners.
"The strange thing is there's a commission of inquiry to determine if someone is criminally liable. But to recommend prosecution of the miners preempts the findings of the inquiry.
"One would think charges against anyone would have to wait until the inquiry is complete."
The bitter dispute between the miners and Lonmin has intensified. The mine's operators have reported an average of 6.6 per cent of workers showing up for shifts this week, down from 50 per cent on Saturday.
Lonmin said many workers feared for their safety if they returned to work. The company's share price has plummeted since the strike began in early August and Lonmin says it may not be able to meet its debt payments.
20 August 2012