Recent Case: Criminal procedure

• Citation: (2023) 36 SACJ 317
• DOI: https://doi.org/10.47348/SACJ/v36/i2a7
• Published date: 14 November 2023
• Pages: 317-328
• Author: du Toit, P.
• Date: 14 November 2023

Criminal Procedure

PIETER DU TOIT

Faculty of Law

North-West University

Potchefstroom Campus

1 Prosecutorial conduct

Prosecutors play a vital role in upholding due process and the rule

of law. For a detailed discussion on the role of the prosecutor in

the criminal justice system see DWM Broughton ‘The South African

prosecutor in the face of adverse pre-trial publicity’ (2020) 23 PELJ

1 at 3–5. Also see the discussion of Nohour v Minister of Justice and

Constitutional Development 2020 (2) SACR 229 (SCA) by MM Watney

‘Recent cases – Criminal procedure’ (2020) 33 SACJ 761 at 766–8.

Our courts have stated time and agai n that the paramount duty of a

prosecutor is not to procure a conviction at all costs but rather to assist

the court in ascert aining the trut h (S v Rozani; Rozani v Director of

Public Prosecutions, Western Ca pe 2009 (1) SACR 540 (C) at 549H-I;

S v Van der Westhuizen 2011 (2) SACR 26 (SCA) atpara [10]; S v

Macrae 2014 (2) SACR 215 (SCA) atpara [28]; S v Maliga 2015 (2) SACR

202 (SCA) at para [20]). The Code of Conduct for Members of the

National Prosecuting Authority (GN R1257, GG 33907, 29 December

2010) requires prosecutors to ‘conduct themselves professionally, with

courtesy and respect to all and in accordance with the law and the

recognised standards and ethics of their profession’ (Part A para (e)).

In Bur t v The Additional Magistrate 2023 (1) SACR 527 (WCC) the

applicant brought a review application in the high court following

his conviction in a magistrate’s court on a charge of theft. Neither

the magistrate nor the prosecuting authority opposed the application

(atpara [1]). The factual background to the matter is that the applicant

was represented by a Legal Aid attorney. The attorney unsuccessfu lly

made representations to the senior prosecutor. At a later stage, the

senior prosecutor approached the applicant in the absence of his legal

representative and threatened him with i mprisonment if he pleaded not

guilty. The senior prosecutor persuaded the applicant to plead guilty

and the matter was transferred to another court for plea proceedings,

without the knowledge of the applicant’s legal representative (atpara

[3]). The prosecutor at that court informed the mag istrate that the

applicant had terminated the services of his attorney. The applicant

pleaded guilty and was convicted and sentenced. In the review

proceedings, the applicant averred that he had never terminated his

Recent cases 317

https://doi.org/10.47348/SACJ/v36/i2a7

(2023) 36 SACJ 317

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