Prosecutorial Discretion and Judicial Review: An Analysis of Recent Canadian and South African Decisions

Published date01 July 2020
Date01 July 2020
Southern African Public Law
ISSN 2522-6800 (Online), ISSN 2219-6412 (Print)
Volume 35 | Number 2 | 2020 | #7124 | 35 pages
© Unisa Press 2021
Prosecutorial Discretion and Judicial Review: An
Analysis of Recent Canadian and South African
Chuks Okpaluba
Research Fellow, Centre for Human Rights, University of the Free State
The question whether the functions performed by the prosecutor in the criminal
justice system are subject to judicial scrutiny has been a matter for concern in
common-law jurisdictions for quite some time. The courts in the
Commonwealth generally agree that prosecutors must function independently;
act fairly and responsibly in the interests of the public; and must be free from
political interference. Their role in the administration of justice is to uphold the
rule of law. Therefore, the exercise of prosecutorial discretion should ordinarily
not be interfered with by the courts except in rare cases. However, the extent to
which the courts, in respective Commonwealth jurisdictions, review
prosecutorial discretions differs. A comparative study of the Canadian
experience and the South African approach, where the judicial approaches to
the review of prosecutorial discretion significantly differ, is a clear illustration.
In Canada, the courts hardly interfere with, or review the manner in which the
prosecutor performs his or her duties, except that prosecutorial discretion is not
immune from all judicial oversight, since it is reviewable for abuse of process
(see R v Anderson [2014] 2 SCR 167). In South Africa on the other hand, the
exercise of the powers of the prosecutor and their ramifications are, like every
exercise of public power, subject to the constitutional principles of legality and
rationality. The recent judgments of the Full Bench of the Gauteng Division,
Pretoria in Democratic Alliance v Acting National Director of Public
Prosecutions 2016 (2) SACR 1 (GP) as affirmed by the Supreme Court of
Appeal in Zuma v Democratic Alliance 2018 (1) SA 200 (SCA)the so-called
spy-tape sagaare the latest illustrations of this approach.
Keywords: Prosecutorial discretion; immunity from judicial oversight; judicial review
of prosecutorial discretion; legality and rationality; discretion to
prosecute, discontinue or to continue prosecution, or withdraw
Prosecutorial discretion represents the fact that in some common-law jurisdictions such
as the United States of America, a prosecution attorney has almost absolute and
unreviewable powers in the performance of prosecutorial duties. In other words, a
prosecuting attorney has power on various matters including those relating to choosing
whether to bring criminal charges, deciding the nature of the charges, plea bargaining
and sentence recommendation.
Even at the risk of repetition,
in this context it is
necessary to state that the question whether prosecutorial discretion to institute, or not
to institute, to continue or discontinue prosecution is subject to judicial review is one
that has troubled common-law courts over the years. In South Africa, the constitutional
that the prosecuting authority be independent, and should exercise its
functions without fear, favour or prejudice,
makes the courts hesitant to interfere with
prosecutorial discretions.
Accordingly, the court will only interfere where the
prosecutor has acted patently illegally or irrationally
or where he or she acts mala fide
or for ulterior purposes.
Therefore, the prosecutor is, like every public functionary,
subject to the tests of legality and rationality.
However, the Canadian approach is more
attuned to the general common-law approach which, as shown in the Sharma
would review prosecutorial discretion only where it constitutes an
See USLEGAL.COM, ‘Prosecutorial Discretion Law and Legal Definition’
accessed 15 October 2016.
See Chuks Okpaluba ‘Judicial Review of Executive Power: Legality, Rationality and Reasonableness
(2)’ (2015) 30(2) SAPL 380 para 5.6.
Section 179(4) of the Constitution of the Republic of South Africa, 1996 (‘the Constitution’).
Section 179(4) of the Constitution. The SAPS Act 1995 was declared unconstitutional in Glenister v
President of the Republic of South Africa 2011 (3) SA 347 (CC) para 251 for establishing the
Directorate of Priority Crime Investigation, a crime busting body, without securing a degree of
adequate independence for it from political interference.
See Pieter du Toit, ‘Recent Cases, Criminal Procedure’ (2015) 28 SACJ 85 at 87.
Highstead Entertainment (Pty) Ltd t/a ‘The Club’ v Minister of Law and Order 1994 (1) SA 387 (C);
Booysen v Acting NDPP 2014 (2) SACR 556 (KZD) paras 3436.
Mitchell v Attorney General, Natal 1992 (2) SACR 68 (N).
NDPP v Zuma 2009 (2) SA 277 (SCA) para 38. Although the recent decision of the SCA in Gauteng
Gambling Board v MEC for Economic Development, Gauteng 2013 (5) SA 24 (SCA) paras 4143 and
48 did not concern the exercise of prosecutorial discretion, it illustrates the exercise of statutory powers
for ulterior purposes. The MEC had sacked members of the Gambling Board and it was clear that she
had done so because they had refused to accommodate a company, the African Romance, at the behest
of the MEC. It was hel d that in doing so, she had failed to consider the confines of the statutory
provisions on which she relied or the consequences on the fiscus and on transparent and accountable
governance. In other words, she had acted beyond her legal powers and contrary to the principle of
legality hence her decision to dissolve the Board was set aside.
Masetlha v President of the Republic of South Africa 2008 (1) SA 566 (CC) paras 7881; Affordable
Medicines Trust v Minister of Health 2006 (3) SA 247 (CC) paras 4849. See generally, Chuks
Okpaluba, ‘Judicial Review of Executive Power: Legality, Rationality and Reasonableness (Part 1)’
(2015) 30(1) SAPL 122 para 3.
See Sharma v DDPP Trinidad and Tobago [2007] 1 WLR 780 (PC).
abuse of process or where it amounts to malicious prosecution or misfeasance in public
This article sets out to explore the similarities and the divergences in the approaches of
the Canadian and South African courts on the issue of prosecutorial discretion and
judicial review, and to probe the extent to which the universal common-law non-
reviewability approach is practised in each jurisdiction. Although state liability is not
the subject of the present discussion,
a clear understanding of the state’s responsibility
in respect of its investigating and prosecuting powers depends on the limits of judicial
review of the prosecuting powers of the state. Incidentally, initial research on state
liability led to the present investigationthe original idea being to introduce that subject
by demonstrating how the courts treat review of prosecutorial discretion.
In conducting the research, it became clear that prosecutorial independence and
impartiality could stand as a separate article, and would, due to spatial constraints, not
be dealt with in this article. This article therefore, deals with the general common-law
attitude towards judicial reviewability of prosecutorial discretion, using Canada and
South Africa as case studies. While the Canadian experience tends towards the
traditional common-law approach, South Africa provides what could be described as a
completely different approach. In addition to discussing the judgments elucidating such
issues as the distinction between prosecutorial discretion and tactics and conduct as
well as distinguishing prosecutorial discretion from constitutional obligations, there are
other principles distilled from the Court Martial Appeal judgment in R v Wehmeier,
on prosecutorial discretion and abuse of process which are discussed here. In South
Africa, the principle that prosecutorial discretion is not an exception to the general rule
and that the performance of all public functions is subject to judicial review, is
illustrated by the decision of the Full Bench of the Gauteng High Court in Democratic
Alliance v Acting National Director of Public Prosecutions
and the Supreme Court of
Appeal in Zuma v Democratic Alliance
which concerned whether the court could,
upon judicial review, order that the prosecutorial decision to discontinue prosecution be
reinstated, albeit ten years later.
See Chuks Okpaluba, ‘Prosecutorial Negligence and Negligent Police Investigation: An Analysis of
Recent Canadian and South African Decisions (1)’ (2018) 32(1) Speculum Juris 34; ‘Prosecutorial
Negligence and Negligent Police Investigation: An Analysis of Recent Canadian and South African
Decisions (2)’ (2018) 32(1) Speculum Juris 154; ‘Prosecutorial Negligence and Negligent Police
Investigation: An Analysis of Recent Canadian and South African Decisions (3)’ (2019) 33(1)
Speculum Juris 69.
2014 CMAC 5 (15 April 2014).

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