Clarifying the constitutional status of the National Prosecuting Authority

• Citation: (2023) 140 SALJ 413
• DOI: https://doi.org/10.47348/SALJ/v140/i2a7
• Published date: 12 May 2023
• Pages: 413-452
• Author: Wolf, L.
• Date: 12 May 2023

413

https://doi.org/10.47348/SALJ/v140/i2a7

CLARIFYING THE CONSTITUTIONAL

STATUS OF THE NATIONAL

PROSECUTING AUTHORITY

LOA MM I WOLF †

Research Associa te, UFS Centre for Human Right s,

University of the Free Sta te

Chapter 8 of the C onstitution aligns the st atus of the National P rosecuting

Authority (‘NPA’) to the separation of p owers typical fo r constitutional stat es where

two princip al organs developed in t he third branch of state po wer during the mid-

nineteenth cen tury to rene Montesquieu’s model of sepa ration of powers. The organs

for the ‘administration of ju stice’ consist of the judiciar y (adjudication) and prosecutors

(prosecuting c rime). Therefore, the st atus of the NPA entails b oth structural and

functional in dependence fr om the executive. The r easons for the NPA’s failures are

manifold and compl ex. The main reason i s that the political elit e continued to treat

the NPA as a part of the e xecutive branch, partly perpet uating the practic e under the

former Westminster c onstitutions and par tly due to the ANC’s policy of ‘demo cratic

centralism’. This has res ulted in a chaotic state orga nisation of crimin al justice where

the powers allo cated to prosecutors by s 179(2) are not clearly demarca ted from policing

powers under s 205(3) of the Constit ution. For the proper f unctioning of the N PA

to uphold the rule o f law, it is important to deli neate clearly the pow ers of the NPA

from those of the judic iary, the executive — espe cially the Minister o f Justice — the

President, the p olice, and the watchdog f unctions of Cha pter 9 institutions.

Separat ion of powers – Nationa l Prosecuti ng Authorit y – independence

from the execut ive

I IN TRO DUCTION

The main i mpetus for thi s article is the hypothesis that the constitut ional

status of the National Prosec uting Authority (‘NPA’) entails both

structural and functional i ndependence from the execut ive. Chapter 8 of

the Constitution aligns the status of t he NPA to the separation of powers

typical for constitutiona l states. In the mid-nineteeth century, the model

of separation of powers of Mont esquieu was rened to create t wo principal

organs i n the third branch of stat e power responsible for the ‘admin istration

of justice’ — the judiciary (adjudicat ion) and prosecutors (prosecuting

crime). In 1994, South Africa switched to the constitutiona l state model.

Yet, in practice, the political elite has cont inued to treat the NPA as a part

of the executive branch, partly per petuating the previous Westmi nster

constitut ions and partly due to t he ANC’s policy of ‘democrat ic centralis m’.

The reasons for the N PA’s failures are ma nifold and complex. The focus

will t herefore be on salient constitutiona l issues of particular i nterest to

† LLB (UF S) LLM (Vir ginia) LL D (Unisa).

(2023) 140 SALJ 413

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414 (202 3) 140 THE SOUTH AFR ICAN LAW JOURNAL

https://doi.org/10.47348/SALJ/v140/i2a7

the proper funct ioning of the NPA. The rst par t of the article wil l briey

focus on state pros ecutions under the previou s Westminster const itutions to

show how deeply embedded the idea became that state prosecutors belong

to the executive bra nch. Next, their nomina l functional ind ependence will

be contrasted w ith prosecutors’ institutiona l and funct ional independence

in constitut ional states. This is important for the interpretation of s 179 of

the Constitution, which now regul ates the status of prosecutors.

To uphold the rule of law and separat ion of powers, it is import ant

to demarcate clearly the powers of the N PA from other state organs

such as the judicia ry, the executive — especially the M inister of Justice

— the President, the police, and the watchdog fu nctions of Chapter 9

institutions. At issue is that the legislation in terms of s 179(3) of the

Constitut ion regulat ing detai ls of the NPA’s functioning does not reect

their inst itutional a nd functiona l independence but created a dierent

prosecutin g model to implement a policy of ‘democr atic centralism’ where

the NPA is executively control led.

The NPA’s powers under s 179(2) ‘to carr y out any necessar y functions

incidenta l to instituti ng crimin al proceeding s’ are juxtaposed w ith policing

powers under s 205(3) of the Const itution to investigate cr ime. The NPA’s

incidental functions have not been construed to mea n prosecutor-led

crim inal investigations. This creates confusion about t he scope of polici ng

competencies to invest igate crime. The legislature also fails to d isting uish

between dierent categories of policing powers, namely administrat ive-

law powers to secure publ ic order and safet y and crim inal-l aw powers

to assist the prosecuting author ity with criminal investig ations. It even

assign s prosecuting powers to the police.

In conclusion, the discussion is li nked to the sign icant failures of

the NPA exposed by the State Capture Com mission due to execut ive

interference i n crimi nal justice (enabled by misguided legislat ion)

that contributed to rampant cor ruption occur ing with i mpunity.

The recommendat ions of the Comm ission can easily be implemented if

the relevant legi slation is aligned w ith the applicable constitutional norms.

II A PROSECUTING PAST DEEPLY EMBEDDED IN

EXECUTIVE CONTROL

In 1910 the Union of South Africa s ettled for the British pro secuting model

where the police, and later prosecutors, instituted cr imin al proceedin gs

under the auspices of va rious provinci al attorney s-general.1 This model

1 Sec tion 139 of the South Af rica Act of 1909 cr eated the post of a Jus tice

Minister i n the national Cabi net vested with powers re lating to the ad ministr ation

of justice ‘save and e xcept all powers , authorities , and funct ions relatin g to the

prosecution of c rimes and o ences, which sha ll in each prov ince be vested in

an ocer to be appoi nted by the Governor -General i n Council, a nd styled the

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CLARI FYING THE CONST ITUTIONAL STATUS OF TH E NPA 415

https://doi.org/10.47348/SALJ/v140/i2a7

was characterised by its feudal origi ns. The Attor ney-General, whose

oce dates back to the  fteenth century, acted as the law ocer of the

Crown and was a member of the Cabinet.2 In the n ineteenth centu ry,

when continental European states went through a development where

the judiciar y was split into two oces to separate criminal prosecut ions

from adjudicat ion, an Oce of the Director of Public Prosecutions was

establi shed. The Director was appoi nted by the Attorney-G eneral.3 Duri ng

legislat ive debates in the 1870s, it was proposed that public prosecutors

in Great Brit ain should generally conduct cr iminal investigations and

prosecutions, a s in France, but the motion was not ca rried. These fu nctions

were left in the ha nds of private solicitors and the police.4 The Director of

Public Prosec utions only oversaw crim inal prosecutions of a sm all number

of importa nt or complex cases. The police conti nued to have responsibility

for most prosecutions until 1986.

The domina nt model in the Ang lo-American tradit ion is that the

prosecution ser vice is located in the justice depar tment. The prosecut ing

authorities have varyin g degrees of ‘f unctional independence’ from the

executive but are subject to t he oversight of the Justice Minister. In B ritain,

in terms of t he Prosecution of Oences Act, 1985, the Crown Pros ecution

Service wa s nally adopted to confer the power upon lega lly tra ined

prosecutors to institute cr iminal proceedings in court. T hese reforms

attempted to st rengthen the independence of prosecutors. However, until

today the decision lies initially wit h the police to decide if the evidence

justies a prosecution in Eng land, Wales and Irel and. Only once they so

decide do the police refer the case to the Crown Prosecution Serv ice.

The Act did not aboli sh the police’s right to prosecute in minor ca ses.5

Attorney- General of the p rovince’. According ly, the prosecution of cr imin al

matter s were entrust ed to Attorney s-Genera l by s 7 of the Crim inal Proc edure

and Evidence Act 31 of 1917.

2 Bl ackstone recorde d that the Attor ney-Genera l was ‘the ki ng’s immediat e

ocer and the ki ng’s nomina l prosecutor’: W Blackstone & G Sh arswood

Commentar ies on the Laws of E ngland vol 2 (1867) 253.

3 Prosecution of O ences Act of 1879. See P N Kurland & D W M Water s

‘Public prose cutions in En gland, 1854 –1897: An essay in Engl ish legisl ative

histor y’ (1959) 4 Duke LJ 499 at 501, 526 and 550.

4 Kurland & Waters ibid at 528, 555 –62.

5 R Brazier Constitutional Practice 3 ed (1999) 109–111; Paul Jackson & Patric ia

Leopold O Hood Phillips and Jackson: Const itutional and Administrat ive Law 8 ed

(2001) at 372–4, 425; J Fionda P ublic Prosecutor s and Discretion: A Com parative

Study (1995); G Manseld & J Peay T he Director of Pub lic Prosecutions: Pr inciples

and Practice s for the Crown Prosec utor (1987); J Hirschel, W Wakeel d & S Sasse

Criminal Just ice in England and th e United States (20 08). Anton Girg inov & Barr y

Hancock ‘Repor t on the Crown Prosec ution in Eng land and Wales’ in Yonko

Grosev & Mar tin Schönteich (eds) Promoting Prosecuting Accountability, Independence

and Eectiv eness — Comparative Re search (2008) 143 at 157 note that t he Crown

Prosecut ion Service is a ‘gover nment department th at, because it has no min ister

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