Comment: The draft National Prosecuting Authority Bill 1997: A critique

• Jurisdiction: South Africa
• Citation: (1997) 10 SACJ 64
• Published date: 28 August 2019
• Date: 28 August 2019
• Author: Jeremy Sarkin
• Pages: 64-74

COMMENTS • AANTEKENINGE

The draft National Prosecuting

Authority Bill 1997: A critique

Jeremy Sarkin* and Susie Cowen**

1

Introduction

The criminal justice system continues to be in crisis. It is seen by many to be

ineffective (see J Sarkin 'Panic over crime could poison South Africa' (1996) ????

Democracy In Action. It

is in this context that perceptions exist that decisions

around prosecutions have been motivated by political factors. This has

contributed to the undermining of the legitimacy of the criminal justice system.

The establishment of a national prosecuting authority is an important step

towards ensuring an effective and fair criminal justice system. Its establishment

signals recognition of the need to balance the twin requirements of

independence and accountability that the prosecutorial function demands. It

also signals recognition of the need to ensure that a uniform prosecution

policy is implemented throughout the country and that safeguards are in place

to promote the proper functioning of the office.

Failure to achieve these imperatives in the past has reduced the legitimacy

of the prosecuting office in the eyes of the public and undermined the criminal

justice system. Until 1992, when the Attorney-General Act 92 of 1992 was

passed, the prosecutorial office was tainted by perceptions that it was subject

to political manipulation and a tool of oppression in the apartheid system.

Since the passage of the 1992 Act, which recreated the office as a politically

independent structure, the legitimacy of the prosecutorial office has been

challenged by insufficiently checked independence. It has been alleged, for

example, that despite the existence of sufficient evidence to warrant a

prosecution, some Attorneys-General have failed to institute prosecutions and

that such decisions have been politically motivated.

The problems associated with the prosecutions office have taken on new

dimensions since the democratic era began in 1994 and several key issues

* Associate Professor, Law Faculty, University of the Western Cape.

** Researcher, Human Rights and Legislation Monitoring Project, Human Rights Committee.

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(1997) 10 SACJ 64

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