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

1989 (3) SA 60 (T); S v Swanepoel 1980 (2) SA 81 (NC); S v Magoda

1984 (4) SA 462 (C); National Director of Public Prosecutions v Zuma

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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