Recent Case: Criminal procedure

• Jurisdiction: South Africa
• Pages: 387-402
• Author: Pieter du Toit
• Published date: 24 May 2019
• Date: 24 May 2019
• Citation: (2015) 28 SACJ 387

Criminal procedure

PIETER DU TOIT

North-West University, Potchefstroom

1 Prosecutor as dominus litis

In S v Sehoole 2015 (2) SACR 196 (SCA) the question arose as to

whether a court may interfere with the st ate’s discretion to elect the

charges to bring in against a n accused. The respondent was convicted

in a regional magistrates’ cour t of inter alia contravening s 3 of

the Firearms Control Act 60 of 2 000, in that he was found in the

unlawful posses sion of a rearm. On appeal the high court set a side

the conviction and sentence on the ground that the respondent should

have been charged with the more serious offence of contravening

s 4 of the Act, having been in possession of a rear m, the serial

number of which had been led off (at para [5]). The state appealed

against the judgment of the high cour t on questions of law in terms

of s 311(1) of the Criminal Procedure Act 51 of 1977. The Supreme

Court of Appeal held that ss 3 and 4 of the Firear ms Control Act

share one essential feature, namely that both proh ibit the possession

of unlicensed rear ms. The court also pointed out the essent ial

differences between the two sect ions. Section 3 contains a general

prohibition against the possession of a rear m without a licence,

whilst s 4 deals with prohibitions i n instances where rearm s may

not be possessed at all, except under exceptional circumst ances, and a

rearm where the serial num ber has been changed or removed without

the written perm ission of the Registrar of Firearm s. Furthermore the

Act prescribes a maxi mum penalty of 15 years’ imprisonment for a

breach under s 3, and a maximum penalt y of 25 years in respect of

s4 (at para [8]). The two sections each prohibit possession of rearms.

However, for a successful prosecution in term s of s 4(1)(f)(iv), the state

must also prove that the rearm’s serial number or identi fying mark

has been removed or altered without the written perm ission of the

Registrar (at para [9]). The court held that the state as dominu s litis has

a discretion regarding prosecution and pre -trial procedures. The st ate

may, for instance, decide whether or not to institute a prosecution; on

what charges to prosecute; in which court or forum to prosec ute; and

when to withdraw charges. The state can also elec t to charge a person

with a less serious offence (at para [10]). The court found that there

is no statutory provision which compels the state to charge a person

with the more serious offence (at para [11]) and, ordinarily, courts are

not at liberty to interfere wit h the prosecutor’s discretion unless there

387

(2015) 28 SACJ 387

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are truly exceptional circu mstances for doing so. This might happen

where a prosecutor has not exercised his or her discretion properly.

When preferring a part icular charge against an accu sed, courts are not

at liberty to inter fere with the discretion exercised by the prosecution

during a trial (at para [12]). As a result the conviction of the respondent

for the contravention of s 3 of the Firearms Control Act was reinst ated.

In S v Mashinini 2012 (1) SACR 604 (SCA) at para [15] it was stated:

‘It is a well-known fact that the state is dominus litis. After the police have

concluded their investigations, the docket is given to the prosecutor. He

or she gains access to all documents and statements in the docket. Based

on this, he or she decides on which charge(s) to prefer against an accused

person.’

E du Toit et al Commentary on the Criminal Procedure Act (RS 54

2015) 1-41 point out that no exaggerated import ance should be given

to the notion of dominus litis. It merely means that the prose cution can

do what is legally permissible to set crim inal proceedings in motion,

such as determining the ch arges and the date and venue of the trial.

Fairness to the accused requires t he courts to retain a measure of

residual control over decisions taken by the prosecution as dominus

litis. Apart from t he discretionary powers that t he prosecution as

dominus litis possesses (and pointed out in Seho ole), case law also

reveals that the prosecutor may in terms of t his notion, accept a guilty

plea on an alternative or lesser charge. However, once an accused

has pleaded not guilty, a court is seized with the dut y of determining

the issues between the state and the accused r aised by the accused’s

original plea of not guilty a nd the prosecutor cannot interfere with

the exercise of this duty (S v Sethoga 1990 (1) SA 270 (A) at 274I-275G;

Sv Brown 2015 (1) SACR 211 (SCA) at paras [96]-[100] and A Kruger &

VG Hiemstra Hiemstra’s Crimin al Procedure (2015) 17-12). In Brown

v Director of Public Prosecutions 20 09 (1) SACR 218 (C) at 224A-C the

court held:

‘There is no obligation on ... the State, in any intended prosecution, to

approach a suspect for an explanation about the intended charges, nor does

the suspect have a right to demand that he or she be approached for an

explanation prior to the State applying for a warrant of arrest. I can, in any

event, imagine that in certain circumstances it would be rather unwise for

the State to adopt such an approach. Similarly, an accused person cannot, as

of right, demand that additional charges brought against him or her should

be joined to any existing charges. The State, or second respondent in this

instance, is dominus litis.’

There are sound policy considerations for court s limiting their own

power to interfere in prosecutorial decisions. The indep endence of the

prosecuting authority must be safegua rded by limiting the extent to

which review of its decisions can be brought. Fur thermore the great

388 SACJ . (2015) 3

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