Recent case: Criminal procedure
Jurisdiction | South Africa |
Citation | (2018) 31 SACJ 127 |
Author | Managay Reddi |
Date | 24 May 2019 |
Published date | 24 May 2019 |
Pages | 127-141 |
Criminal procedure
MANAGAY REDDI
University of KwaZulu-Natal, Durban
1 Discontinuance of prosecution
The description of the prosecution as do minus litis (master of the
case) is ubiquitous and exists in most national legal systems and i n
international law. In essence, the concept of the dominus litis is a
reference to the authorit y of the prosecution to determine whet her
to institute a prosecution; what the charges should be; and when and
where the trial should be conducted (s 20(1) of the National Prosecuting
Authority Act 32 of 1998). Prosecutorial discretion also extends to the
authority the prosecution enjoys to withdraw charges and to stop a
prosecution without judicial intervention. In ter ms of s 6(a) of the
Criminal Pro cedure Act, the state or any body or person conducting a
prosecution under s 8, may, with the consent of the Director of Public
Prosecutions, withdraw the charge before an accused pleads to t he
charge. (However, this does not entitle the accused to a verdict of
acquittal in respect of th at charge.)
The prosecutorial power conferred on the South A frican prosecuting
authority by virtue of t he provisions of s 179 of the Constitution and the
National Prosecuting Authority Act, i s however not unfettered. Some
measure of oversight is retained by the courts i n ensuring that the
prosecution’s exercise of this authority does not subvert the interests
of justice or infringe on an accused’s right to a fair tr ial (S v Khoza
2009 (2) SA 277 (SCA); Booysen v Acting National Director of Public
Prosecutions 2014 (2) SACR 556 (KZD)). Therefore, absent dishonesty
or male des or exceptional circumst ances, the discretion to prosecute
(or not to prosecute) is an almost unfettered power of the prosec ution,
as ‘courts are not overly eager to limit or interfere with the legiti mate
exercise of prosecutorial authority’ (Navsa ADP in Ministe r of Police v
Du Plessis 2014 (1) SACR 217 (SCA) at para [31]).
In summary t hen, prosecutorial discretion i n South Africa
encompasses not only t he authority to decide whether to prosecute
but also the power to withdraw or discontinue a prosecution, without
interference from the legislature or the judiciar y. However, it is possible
for a decision not to prosecute to be taken on judicial review (Freedom
Under Law v National Director of Public Pros ecutions 2014 (1) SA 254
Recent cases 127
(2018) 31 SACJ 127
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