Reflections on prosecutorial independence and impartiality in South Africa : the recent jurisprudence of the courts

• Author: Ntombizozuko Dyani-Mhango
• DOI: 10.25159/2522-6800/7030
• Published date: 01 July 2020
• Date: 01 July 2020
• Pages: 1-25

Article

Southern African Public Law

https://doi.org/10.25159/2522-6800/7030

https://upjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online), ISSN 2219-6412 (Print)

Volume 35 | Number 2 | 2020 | #7030 | 25 pages

© Unisa Press 2021

Reflections on Prosecutorial Independence and

Impartiality in South Africa: The Recent

Jurisprudence of the Courts

Ntombizozuko Dyani-Mhango

Professor, Department of Jurisprudence, University of Pretoria

Ntombizozuko.Dyani-Mhango@up.ac.za

Abstract

Prosecutorial independence and prosecutorial impartiality are important for the

effective administration of criminal justice in South Africa. These two concepts

are interconnected and yet they are distinct, and distinguishable from judicial

independence and judicial impartiality. In the past decade or so, controversy has

surrounded and allegations have been made of political interference with

prosecutorial independence and impartiality in South Africa. This article reflects

on recent developments in the exercise of prosecutorial independence and

impartiality in South Africa. The interest was sparked by recent constitutional

jurisprudence in developing the law on prosecutorial independence and

impartiality. In its analysis of the courts’ jurisprudence on prosecutorial

independence, the article further demonstrates that this jurisprudence has had an

influence in determining the independence of other institutions responsible for

the administration of criminal justice.

Keywords: National Director of Prosecutions; National Prosecuting Authority;

independence; impartiality; political interference; administration of justice

Dyani-Mhango

2

Introduction

The Constitution of the Republic of South Africa, 1996 requires ‘a single national

prosecuting authority in the Republic, structured in terms of an Act of Parliament.’ The

National Prosecuting Authority (NPA) is headed by a National Director of Public

Prosecutions (NDPP).

1

The NDPP is expected to be independent and to act without

undue influence in order to advance the administration of justice effectively.

2

There has

also been uncertainty in the office of the NDPP, which was a cause for concern and

threatened the independence and impartiality of the NDPP. No occupier of the office of

the NDPP has ever completed their term of office of ten years

3

since its inception in

1998.

4

The office has had five permanent NDPPs, all of whom have left office for

different reasons prior to the end of their term.

5

Furthermore, there are two judgments

of the Constitutional Court that effectively removed the incumbent NDPPs from office.

6

1

Section 179(1)(a) of the Constitution, 1996.

2

See s 179(4) of the Constitution and s 32(2)(1)(a) of the NPA Act. See also Corruption Watch NPC &

Others v President of the Republic of South Africa & Others ; Nxasana v Corruption Watch NPC &

Others [2018] ZACC 23 (13 August 2018) (Corruption Watch NPC) para 18, confirming that ‘[t]he

importance of the office of NDPP in the administration of justice is underscored and amplified by no

less an instrument than the Constitution itself’; and UNGA ‘Report of the Special Rapporteur on the

Independence of Judges and Lawyers’ (7 June 2012) A/HRC/20/19, para 93, where it is stated that:

‘Prosecutors are the essential agents of the administration of justice, and as such should respect and

protect human dignity and uphold human rights, thus contributing to ensuring due process and the

smooth functioning of the criminal justice system. Prosecutors also play a key role in protecting society

from a culture of impunity and function as gatekeepers to the judiciary.’

3

Section 12(1) of the NPA stipulates that the NDPP occupies the office for a non-renewable period of

ten years.

4

For a historical discussion of the office of the Attorney-General, see Mabona Thomas Mokoena,

‘Taming Prosecutorial Beast: Of Independence, Discretion and Accountability’ (2012) Stellenbosch

LR 297 at 298–299. See also, generally, Martin Schönteich, ‘A Story of Trial and Tribulations: The

National Prosecuting Authority, 1998–2014’ (2014) 50 SA Crime Quarterly 5.

5

The permanent NDPPs were Bulelani Ngcuka, who resigned; Vusi Pikoli (who was suspended and

later reached a settlement with the president—see, generally, Vusi Pikoli and Mandy Wiener, My

Second Initiation: The Memoir of Vusi Pikoli (Picador Africa 2013), where Vusi Pikoli gives an

account of what led to his suspension as NDPP); Menzi Simelane (who was removed from office after

the court’s judgment—see Democratic Alliance v President of South Africa 2013 (1) SA 248 (CC)

(Simelane); Mxolisi Nxasana (who was suspended and later reached a settlement with the president,

which was invalidated by the court’s judgment—see Corruption Watch NPC (n 2)) and, most recently,

Shaun Abrahams, who was removed from office after the court’s judgment—see Corruption Watch

NPC (n 2). See, for example, Sam Sole, ‘Public Prosecutions: The Poisoned-chalice Job’ (Mail &

Guardian, 29 May 2014) <https://mg.co.za/article/2014-05-29-public-prosecutions-the-poisoned-

chalice-job> accessed 26 August 2018; Ilse de Lange, ‘Timeline of Woeful Presidential Moves that

Paralysed the NPA’ (The Citizen, 9 December 2017) <https://citizen.co.za/news/south-

africa/1753924/timeline-of-woeful-presidential-moves-that-paralysed-the-npa/> accessed 26 August

2018; Claudi Mailovich, ‘President Picks Silas Ramaite to Hold Fort at NPA Again’ (Business Day,

14 August 2018) <https://www.businesslive.co.za/bd/national/2018-08-14-breaking-silas-ramaite-

appointed-acting-ndpp/> accessed 26 August 2018.

6

See Simelane (n 5); and Corruption Watch NPC (n 2).