Recent Case: Criminal procedure

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Pages: 452-464
• Date: 16 August 2019
• Citation: (2018) 31 SACJ 452
• Author: Murdoch Watney

Criminal procedure

MURDOCH WATNEY

University of Johannesburg

1 The discretion to institute a criminal prosecution

In Patel v National Director of Public Prose cutions 2018 (2) SACR 420

(KZD) the plaintiff, a former judge president of the KwaZulu-Natal

High Court, instit uted action for malicious prosecution against t he

defendants. The cause of action arose from his prose cution on a

charge of crimen injur ia. A brief overview of the struct ure of the

national prosecuting authority as well as t he discretion to exercise

prosecutorial powers, is provided in order to provide context to the

discussion. The procedure pert aining to the inst itution of a private

prosecution in terms of s 7 of the Cr iminal Procedure Act 51 of 1977

will not be considered as it falls outside the ambit of t his discussion.

Section 179 of the Constitution of the Republic of South Africa,

1996 provides for the creation by an act of parliament of a single

national prosecuting authority in t he Republic with the power to

institute crim inal proceedings without fear, favour or prejudice on

behalf of the state and to carr y out any necessary func tions incidental

thereto. Effect was given to these requirements of the Con stitution in

s 20 of the National Prosecuting Authorit y Act 32 of 1998 (the Act),

which vests the power in the prosecuting authority to i nstitute and

conduct criminal proceed ings on behalf of the state (see E du Toit et al

Commentary on the Criminal Procedure Act (RS 61, 2018) 1-7; General

Council of the Bar of South Africa v Jiba 2017 (1) SACR 47 (GP) at

para [12]). Section 32(1)(a) provides that ‘a member of the prosecuting

authority shall ser ve impartially and exercise, car ry out or perform his

or her powers, duties and functions in good faith and without fear,

favour or prejudice and subject only to the Constitution and the law.’

The National Director of Public Prosecut ions (NDPP) is required in

terms of ss 21(1) and 22(2) of the Act to determine prosecution policy

and issue policy directives to be obser ved in the prosecution process

in accordance with s 179(5)(a) and (b) of the constitution. A policy

manual containing the requi red prosecution policy and the polic y

directives was issued with the concu rrence of the Minister of Justice and

Correctional Ser vices and after consultation with t he directors of public

prosecutions on 1 October 1999 (revised June 2013). The policy manual

also contained a code of conduct for prosecutors issued by the national

director in terms of s 22(6) of the Act (GG 33907, 27 December 2010)

(A Kruger Hiemstra’s Criminal Procedure (2018) 1-5).

452 SACJ . (2018) 3

(2018) 31 SACJ 452

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