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

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

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

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

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).

The NDPP is expected to be independent and to act without

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

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

since its inception in

1998.

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

different reasons prior to the end of their term.

Furthermore, there are two judgments

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

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

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.’

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

ten years.

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.

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)

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

Paralysed the NPA’ (The Citizen, 9 December 2017)

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)

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

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

Dyani-Mhango

In addition, in the past decade or so, new constitutional jurisprudence has emerged in

South Africa regarding the requirement of independence that should characterise

independent institutions such as the NPA. There had been questions about w hether the

NDPP enjoys independence from their political heads such as the Minister of Justice

and the president or whether there has been political interference in deciding whether to

institute criminal proceedings against high-profile individuals.

It is against this

background that this article reflects on the developments in the exercise of prosecutorial

independence and impartiality in the constitutional jurisprudence of South Africa. The

interest was sparked by this recent constitutional jurisprudence in developing the law

on prosecutorial independ ence and impartiality. In its analysis of the courts’

jurisprudence on prosecutorial independence, the article will further demonstrate that

this jurisprudence has had an influence in determining the independence of other

institutions relevant to the administration of criminal justice.

The Constitution does not expressly require prosecutorial independence, but it does

require national legislation to ‘ensure that the prosecuting authority exercises its

functions without fear, favour or prejudice.’

As will be presented later in the article,

this provision has been interpreted by the courts also to mean prosecutorial

independence. However, this article proceeds on the understanding that prosecutorial

independence differs from prosecutorial impartiality. It is, therefore, important to

ascertain the distinct and separate meanings of these two terms. This distinction is

inferred from case law that differentiates between judicial independence and judicial

impartiality. Although the discussion in this article is not about the judicial

independence or impartiality of the courts, the definition of these two expressions in the

context of the exercise of judicial power or authority is more than helpful in determining

what prosecutorial independence and impartiality entails. It will be shown below that

the court in Corruption Watch NPC, for example, has used judicial independence as an

analogy to determine prosecutorial independence.

Although the mention of

independence—to wit, judicial independence—tends to be accompanied by the term

impartiality, in wording such as ‘independent and impartial tribunal or forum’ in section

See, for example, Phillip C Stenning, ‘Discretion, Politics, and the Public Interest in “High-Profile”

Criminal Investigations and Prosecutions’ (2009) 24(3) Canadian Journal of Law and Society 337,

especially 350–359, (discussing the South African instances such as the investigations that led to the

prosecution of Jackie Selebi, the former Commissioner of Police, and criminal investigations against

former President Zuma, where the independence of the NDPP was questioned). See also Lovell

Fernandez, ‘The National Director of Public Prosecutions in South Africa: Independent Boss or Parry

Politician?’ (2007) 21 Speculum Juris 129 (also discussing the political interference in the Zuma case).

Section 179(4) of the Constitution.

See Corruption Watch NPC (n 2) para 42, quoting Justice Alliance of South Africa v President of the

Republic of South Africa 2011 (5) SA 388 (CC) (Justice Alliance of South Africa). Justice Alliance of

South Africa dealt with the independence of the judiciary in relation to Chief Justice Ngcobo’s

extension of term of office. See also Corruption Watch NPC (n 2) para 26, where the court makes a

distinction between prosecutorial independence and judicial independence.

Dyani-Mhango

34 of the Constitution

—they are distinct values conveying separate meanings and

implications in the administration of justice. The Canadian Supreme Court has provided

a universal definition of these terms in Valente

and explained the differences as

follows:

Although there is obviously a close relationship between independence and impartiality,

they are nevertheless separate and distinct values or requirements. Impartiality refers to

a state of mind or attitude of the tribunal in relation to the issues and the parties in a

particular case. The word ‘impartial’ … connotes absence of bias, actual or perceived.

The word ‘independence’ … reflects or embodies the traditional constitutional value of

judicial independence. As such, it connotes not merely a state of mind or attitude in the

actual exercise of judicial functions, but a status or relationship to others, particularly

the Executive branch of government that rests on objective conditions or guarantees.

This passage was later cited with approval by the court in De Lange v Smuts NO in its

determination of judicial independence in South Africa.

This article will demonstrate

through an analysis of the courts’ jurisprudence that prosecutorial independence is,

indeed, about the relationship between the NDPP and the executive branch of

government; prosecutorial impartiality is about the state of mind of the prosecutor in

the exercise of their duties, if they are to exercise those duties without fear or favour. It

is to those issues that this article now turns.

The Court on Prosecutorial Independence

This part of the article analyses the court’s jurisprudence on prosecutorial independence

in order to determine the meaning of this concept in the South African context. The

article will further demonstrate that this jurisprudence has had an influence on

determining the independence of other institutions relevant to the administration of

criminal justice.

Section 179(2) of the Constitution stipulates that ‘the prosecuting authority has the

power to institute criminal proceedings on behalf of the state, and to carry out any

necessary functions incidental to instituting criminal proceedings.’ Therefore, the

independence of the prosecutor is significant: a prosecutor who lacks independence may

make a mockery of the criminal justice system. As the court has explained in Corruption

Watch NPC, per Madlanga J:

See also s 165(2) of the Constitution, which stipulates that ‘[t]he courts are independent and subject

only to the Constitution and the law, which they must apply impartially and without fear, favour or

prejudice’ [emphasis added].

Valente v The Queen [1985] 2 RCS 673.

Valente (n 11) 685. See also The Queen v Beauregard [1986] 2 SCR 56 at 70, citing Valente with

approval.

See De Lange v Smuts NO 1998 (3) SA 785 para 71.

Dyani-Mhango

The NPA plays a pivotal role in the administration of criminal justice. With a malleable,

corrupt or dysfunctional prosecuting authority, many criminals – especially those

holding positions of influence – will rarely, if ever, answer for their criminal deeds.

Equally, functionaries within that prosecuting authority may … ‘be pressured … into

pursuing prosecutions to advance a political agenda’. All this is antithetical to the rule

of law, a founding value of the Republic.

As explained earlier, the Constitution does not expressly state that the NDPP or the NPA

ought to be independent but enjoins the legislature to adopt legislation that ‘must ensure

that the [NPA] exercises its functions without fear, favour or prejudice.’ The court in

the First Certification Case interpreted this provision to mean that

there is … a constitutional guarantee of independence and any legislation or executive

action inconsistent therewith would be subject to constitutional control by the courts.

Furthermore, although the court was not dealing with prosecutorial independence in

Simelane but with the exercise of executive power in the appointment of the NDPP, it

held that the combined object of the empowering provisions of section 179 of the

Constitution and section 9 of the NPA Act

was to safeguard the independence of the

NDPP. Therefore, the appointee to that position must be above reproach, independent

and ready to serve without fear, favour or prejudice. In order to make an appointment

to that position, the president must be satisfied that the candidate possesses the qualities

of ‘experience, consciousness and integrity’

required by section 9(1)(b) of the NPA

Act. These qualities are jurisdictional facts that must be objectively assessed to exist

before an appointment can be made, and the president is at the very least required to

have regard to the relevant factors that were brought to his attention or which could

reasonably be ascertained by him. And in exercising those powers, the president needs

not have preconceived views regarding the fitness of a candidate or rely on personal

knowledge of the candidate, nor should the president disregard relevant evidence as to

their fitness for office.

In the court’s view, failure by the president to undertake a

Corruption Watch NPC (n 2) para 19.

Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the

Republic of South Africa, 1996 1996 (4) SA 744 (CC) para 146. See also Jean Redpath, ‘Failing to

Prosecute? Assessing the State of the National Prosecuting Authority in South Africa’ (2012) Issue

186, June 2012, Institute for Security Studies Monographs 5–6.

Section 9 of the NPA Act stipulates that:

(1) Any person to be appointed as National Director, Deputy National Director or Director must-

(a) possess legal qualifications that would entitle him or her to practise in all courts in the Republic;

and

(b) be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity,

to be entrusted with the responsibilities of the office concerned.

(2) Any person to be appointed as the National Director must be a South African citizen.

Simelane (n 5) para 49.

Simelane (n 5) paras 107–109. See also Ntombizozuko Dyani-Mhango, ‘No, Its not Up for Public

Debate …’ (The Sunday Independent, 26 August 2018)

Dyani-Mhango

proper enquiry whether the candidate satisfied the objective requirements of section

9(1)(b) of the NPA Act would render the resulting appointment subject to annulment by

the courts.

Prosecutorial independence also includes security of tenure for the NDDP, which is a

non-renewable term of ten years; safeguards against unconstitutional dismissal; and a

right to leave office voluntarily. In this regard, the court in Corruption Watch NPC

recently pronounced that:

The NPA Act has two other salient features that help shield the NPA from improper

interference, namely: the non-renewability of the 10-year term of office of the NDPP;

and certain safeguards on the removal of the NDPP from office. Section 12(8) provides

for the voluntary vacation of office by an NDPP. This section is of some significance.

It must be read in the context of the constitutional guarantee that the office of NDPP be

independent and, indeed, in the context of all the provisions of the NPA Act that seek to

give content to the provisions of section 179(4) of the Constitution. Any act or conduct

that purports to be a voluntary vacation of office but which compromises or has the

potential to compromise the independence of the NDPP is constitutionally invalid.

There is another allied issue of the independence of the NDPP which has arisen in past

legal debates with much controversy. It relates to the proper interpretation of section

179(6) of the Constitution. This section provides that ‘[t]he Cabinet member responsible

for the administration of justice must exercise final responsibility over the prosecuting

authority.’ The question that has been raised is whether this provision is in conflict with

the independence of the NPA. In dealing this question, some commentators have argued

that:

the Minister’s powers of oversight are confined to those included in the Act. As already

discussed, these include the requirement that the Minister approves prosecution policy,

and various duties of the NDPP to provide information and submit reports to the

Minister. The [NPA] Act gives no power to the Minister regarding the exercise of

prosecutorial discretion in individual cases. As such, individual decisions regarding

whether or not to prosecute in a particular case are not within the purview of the

Minister’s ‘final responsibility’. This rests in the exclusive discretion of the prosecuting

authority, and ultimately the [NDPP].

africa/the-sunday-independent/20180826/282827897005890> accessed 23 July 2020, discussing the

process of appointing the NDPP and arguing that the president does not have unfettered powers when

appointing the NDPP, because he is guided by the provisions of the Constitution and the NPA Act.

Simelane (n 5) para 112.

Corruption Watch NPC (n 2) para 23.

Hannah Woolaver and Michael Bishop, ‘Submission to the Enquiry into the National Director of

Public Prosecutions by the South African Institute for Advanced Constitutional, Public, Human Rights

and International Law (SAIFAC)’ (2008) 21(2) Advocate 30.

Dyani-Mhango

In his analysis of prosecutorial independence in Zuma v National Director of Public

Prosecutions,

Nicholson J cited the above argument with approval. The judge further

explained that

[t]he independence of the prosecuting authority is vital to the independence of the whole

legal process. If one political faction or sectional interest gains a monopoly over its inner

workings, the judiciary will cease to be independent and will become part of a political

process of the persecution of one particular targeted political enemy.

Equally, the SCA agreed with the High Court on appeal and noted that even though

‘[t]hese provisions may appear to conflict … they are not incompatible.’

In its view,

the SCA pronounced that:

although the Minister may not instruct the NPA to prosecute or to decline to prosecute

or terminate a pending prosecution, the Minister is entitled to be kept informed in respect

of all the prosecutions initiated or to be initiated which might arouse public interest or

involve important aspects of legal or prosecutorial authority.

The SCA further stated that the ‘NDPP must be able to make prosecutorial decisions

without regard to political considerations and his prosecutorial discretion must not be

subject to the authority of the government.’

However, it disagreed with Nicholson J’s

holding that ‘there should be no relationship [between the NPA and] the Minister of

Justice.’

Instead, the SCA held that the minister’s responsibility over the NPA needs

to be contextualised.

The SCA reasoned that even courts interfere with the NPA’s

decisions to prosecute ‘where the prosecuting authorities had given an undertaking not

to prosecute or had made a representation to that effect in exchange for a plea or for

cooperation.’

What is clear from the SCA’s interpretation of section 179(6) is that the

2009 (1) BCLR 62 (N) paras 89 and 90 (Zuma v NDPP).

Zuma v NDPP (n 22) para 94.

Zuma v NDPP 2009 (2) SA 277 (SCA) para 32 (Zuma v NDPP (SCA)).

ibid. See also Glenister v President of the Republic of South Africa 2011 (3) SA 347 (CC) (Glenister)

para 122, per Ngcobo CJ, where he confirmed that:

‘[t]here are those legal systems, like ours, where the executive is assigned final responsibility over the

functioning of police or the prosecution, as the case may be. Even with the administration of justice.

This is a special feature of our constitutional democracy. The Cabinet Minister responsible for the

police is required by our Constitution to take final responsibility for the functioning of the police,

including all crime fighting units located within the police. The same is true of the Minister for Justice

with regard to the NPA.’

The majority judgment penned by Moseneke DCJ and Cameron J agreed with Ngcobo CJ’s assessment

and said at para 244, ‘we also accept that our legal system requires some level of executive involvement

in any area of functioning. We do not cavil with some measure of executive involvement.’

Zuma v NDPP (SCA) para 28.

Zuma v NDPP (SCA) para 37.

ibid.

Zuma v NDPP (SCA) para 39.

Dyani-Mhango

minister’s final responsibility over the NPA is constitutional. However, it does not

empower the minister to intervene in the day-to-day affairs of the prosecutor but

requires that the minister be informed about prosecutorial matters and decisions.

What

remains unclear is what the minister must do with such information. An interesting view

that this article agrees with is by Mokoena, who argues that section 179(6) of the

Constitution is linked to the NDPP’s accountability, because suc h ‘accountability is

inferred from the “final responsibility” which the minister is supposed to exercise over

the prosecuting authority.’

He further maintains that

unfettered prosecutorial independence, if left unchecked by regulation, may be

susceptible to bureaucratic, and institutional abuse and institutional abuse and misuse,

which, may by implication, potentially erode entrenched constitutional and legislative

protection and guarantees.

Prosecutorial independence received considerable attention in Corruption Watch NPC,

where the appointment of the NDPP terminated by a settlement agreement with the

president and the Minister of Justice was under review. In this case, the former NDPP,

Mr Nxasana, entered into a settlement agreement with the president and the Minister of

Justice in terms of article 28(1)(a)(ii) of the NPA Act in order to vacate his office.

One

of the issues brought before the court, and which is relevant to this article, was whether

‘the settlement agreement and, therefore, Mr Nxasana’s vacation of the office of NDPP

are constitutionally valid.’

In answering this question, Madlanga J made it clear that

the settlement agreement to vacate the office of the NDPP was linked to the concept of

See also, Kaunda & Others v President of the Republic of South Africa 2005 (4) SA 235 (CC), para

83, where Chaskalson CJ explained:

‘In terms of the Constitution the prosecuting authority, headed by the [NDPP], has the power to

institute criminal proceedings on behalf of the state and to carry out any necessary functions incidental

to the instituting of criminal proceedings. This would include applying for extradition where this is

necessary. The powers of the prosecuting aut hority, for which the Minister of Justice and

Constitutional Affairs assumes final responsibility, must be exercised by the prosecuting authority

without fear, favour, or prejudice. Decisions to institute prosecutions may raise policy issues which

are far from easy to determine where, as in the present case, the events are already the subject matter

of criminal proceedings in another country.’ [footnotes omitted].

Mokoena (n 4) 303. See also Dirk Van Zyl Smit and Esther Steyn, ‘Prosecuting Authority in the New

South Africa’ (2000) 8 CIJL Yearbook 137 at 150 arguing that ‘[i]n practice this means that the

Minister of Justice has to answer to Parliament and through it to the public for the operation of the

prosecuting authority’, and that ‘in principle, it is desirable that government ministers take

responsibility for the operations of all aspects of the executive.’

Mokoena (n 4) 303.

Section 12(8)(a) of the NPA Act provides that:

(a) The President may allow the National Director or a Deputy National Director at his or her request,

to vacate his or her office –

(i) on account of continued ill-health; or

(ii) for any other reason which the President deems sufficient.

Corruption Watch NPC (n 2) para 16(a).

Dyani-Mhango

prosecutorial independence, especially since it transpired that the president wanted Mr

Nxasana out of office by all means necessary.

Madlanga J concluded that the

president’s conduct ‘compromise[d] the independence of the NDPP’ because the

settlement amount in the agreement fell outside the benefits contemplated in section

12(8) of the NPA Act.

In other words, the amount paid to Mr Nxasana as part of the

settlement agreement for him to vacate his office ‘far exceeded what Mr Nxasana’s

financial entitlement would have been had his office been lawfully vacated in terms of

section 12(8)(a)(ii) of the NPA Act.’

The Corruption Watch NPC judgment also dealt with two other issues that relate to the

independence of the NDPP. The first issue was the constitutionality of section 12(4) of

the NPA Act. This section gave power to the president to extend the NDPP’s term of

office beyond the retirement age of 65.

In this regard, Madlanga J quickly disposed of

this issue and held that the enabling provision to extend the NDPP’s term of office

undermines the independence of the NDPP.

His reasons were predicated on the

previous judgments of the court, including Justice Alliance of South Africa, where it

held that:

In approaching this question it must be borne in mind that the extension of a term of

office, particularly one conferred by the Executive or by Parliament, may be seen as a

benefit. The judge or judges upon whom the benefit is conferred may be seen as

favoured by it. While it is true, as counsel for the President emphasised, that the

See Corruption Watch NPC (n 2) para 25, where Madlanga J gives a summary of what transpired:

‘The facts set out above point to one thing and one thing only: former President Zuma was bent on

getting rid of Mr Nxasana by whatever means he could muster. His was an approach that kept on

mutating: it was first a stick; then a carrot; a stick once more; and eventually a carrot. There was first

the notification that Mr Nxasana would be subjected to an inquiry with a view to establishing whether

he was still a fit and proper person to hold office. Concomitantly, there was a threat of suspension

pending finalisation of the inquiry, albeit with full pay. This was followed by former President Zuma’s

proposal that there be mediation. When there was no progress on this, the inquiry was instituted. Whilst

the inquiry was in its preliminary stages, the former President pursued a parallel process in which Mr

Nxasana was first offered—in a draft settlement agreement—R10 million. As indicated earlier, he did

not accept it. What plainly evinces how desperate former President Zuma was to get rid of Mr Nxasana

is that this was followed by a draft settlement in which the amount was left blank. Mr Nxasana was

being told to pick whatever figure.’

Corruption Watch NPC (n 2) para 28.

Corruption Watch NPC (n 2) para 26.

Section 12(4) of the NPA Act stipulates:

(4) If the President is of the opinion that it is in the public interest to retain a National Director or a

Deputy National Director in his or her office beyond the age of 65 years, and –

(a) the National Director or Deputy National Director wishes to continue to serve in such office; and

(b) the mental and physical health of the person concerned enable him or her so to continue,

the President may from time to time direct that he or she be so retained, but not for a period which

exceeds, or periods which in the aggregate exceed, two years: Provided that a National Director’s term

of office shall not exceed 10 years.

Corruption Watch NPC (n 2) para 42.

Dyani-Mhango

possibility of far-fetched perceptions should not dominate the interpretive process, it is

not unreasonable for the public to assume that extension may operate as a favour that

may influence those judges seeking it. The power of extension in section 176(1) must

therefore, on general principle, be construed so far as possible to minimise the risk that

its conferral could be seen as impairing the precious -won institutional attribute of

impartiality and the public confidence that goes with it.

Consequently, the court confirmed the High Court’s declaration of the

unconstitutionality of this provision.

The second issue was whether an indefinite suspension of the NDPP in terms of article

12(6) of the NPA Act affected prosecutorial independence.

The problem for the court

was the fact that the president had the power to suspend the NDPP with or without pay

and for an indefinite period. Above all, suspension without pay was a default position.

In this respect, Madlanga J’s concern was the fact that the legislation did not provide

Justice Alliance of South Africa (n 9) para 75 as quoted in Corruption Watch NPC (n 2) para 42.

Madlanga J, in para 43, also relied on reasoning in Helen Suzman Foundation v President of the

Republic of South Africa 2015 (2) SA 1 (CC) (Helen Suzman Foundation) para 81, which held:

Renewal invites a favour-seeking disposition from the incumbent whose age and situation might point

to the likelihood of renewal. It beckons to the official to adjust her approach to the enormous and

sensitive responsibilities of her office with regard to the preferences of the one who wields the

discretionary power to renew or not to renew the term of office. No holder of this position of high

responsibility should be exposed to the temptation to ‘behave’ herself in anticipation of renewal.

Corruption Watch NPC (n 2) para 44.

Section 12(6) of the NPA states:

(6)(a) The President may provisionally suspend the National Director or a Deputy National Director

from his or her office, pending such enquiry into his or her fitness to hold such office as the President

deems fit and, subject to the provisions of this subsection, may thereupon remove him or her from

office –

(i) for misconduct;

(ii) on account of continued ill-health;

(iii) on account of incapacity to carry out his or her duties of office efficiently; or

(iv) on account thereof that he or she is no longer a fit and proper person to hold the office concerned.

(b) The removal of the National Director or a Deputy National Director, the reason therefor and the

representations of the National Director or Deputy National Director (if any) shall be communicated

by message to Parliament within 14 days after such removal if Parliament is then in session or, if

Parliament is not then in session, within 14 days after the commencement of its next ensuing session.

Parliament, or as soon thereafter as is reasonably possible, pass a resolution as to whether or not the

restoration to his or her office of the Nati onal Director or Deputy National Director so removed, is

recommended.

(d) The President shall restore the National Director or Deputy National Director to his or her office

if Parliament so resolves.

(e) The National Director or a Deputy National Director provisionally suspended from office shall

receive, for the duration of such suspension, no salary or such salary as may be determined by the

President.

Corruption Watch NPC (n 2) para 45.

Dyani-Mhango

any guidance concerning the president’s exercise of discretion under it when it comes

to the circumstances under which a payment would be made. Madlanga J found this

exercise of discretion is not one to be made available to the executive as it may lead to

abuse.

Accordingly, Madlanga J held that the exercise of such presidential discretion

‘has the potential to undermine the independence and integrity of the offices of NDPP

and Deputy NDPP and, indeed, that of the NPA itself.’

It is clear from the above discussion that the independence of the prosecutor is important

in the exercise of their duties. However, this article argues that the oversight of the

Minister of Justice is aligned to holding the prosecutor accountable for preventing

‘institutional abuse and misuse’ if the minister does not overstep their boundaries. This

oversight does not interfere with prosecutorial independence, as confirmed in Valente

on what constitutes independence, and by the SCA in Zuma v National Director of

Public Prosecutions and the court in Kaunda, and in Glenister on the relationship

between the NDPP and the executive branch of government. The question that follows

is whether prosecutorial independence is the same as judicial independence. This article

argues that the two are not the same.

It is important to emphasise that even though the court relied on authorities which dealt

with issues of judicial independence to pronounce on prosecutorial independence in the

Corruption Watch NPC, the two concepts are distinct. Justice Yacoob in the Simelane

case conceded this difference when he declared that ‘it is true that the functions of the

[NDPP] are not judicial in character.’

Nevertheless, Justice Yacoob recognised that

because the functions performed by the NDPP

are … fundamental to our democracy. The office must be non-political and non-partisan

and is closely related to the function of the judiciary broadly to achieve justice and is

located at the core of delivering criminal justice.

In his critical study of a proposed 2013 constitutional amendment to the provisions

governing the NPA, Mhango correctly argued that ‘the latter point [by Justice Yacoob]

should not be read as suggesting that the NDPP deserves the same level of independence

that the Constitution expects’ from the judiciary.

ibid.

Simelane (n 5) para 26.

ibid.

Mtendeweka Mhango, ‘Constitutional Eighteenth Amendment Bill: An Unnecessary Amendment to

the South African Constitution?’ (2013) 35(1) Statute Law Review 19 at 26, discussing Simelane and

the differences between the level of appointment expected for the NDPP and judiciary.

Dyani-Mhango

In addition, the court has reiterated this difference in Glenister

and Helen Suzman

Foundation, where, in dealing with the issue of public confidence in the context of

determining the level of independence of the Directorate of Priority Crime Investigation

(DPCI), the court stated that

the appearance or perception of independence plays an important role in evaluating

whether independence in fact exists … By applying this criterion, we do not mean to

impose on Parliament the obligation to create an agency with a measure of independence

appropriate to the judiciary.

Accordingly, under South African constitutional law, a line is drawn between judicial

and prosecutorial independence.

The jurisprudence of our courts relating to prosecutorial independence has had an

influence on the interpretation of other constitutional and legislative provisions relating

to the independence of other institutions whose tasks are linked to the administration of

justice. The following section deals with the independence of the DPCI and the

Independent Police Investigative Directorate (IPID) in order to demonstrate this

influence.

On the Independence of the DPCI and the IPID: The Glenister and

McBride

Judgments

As previously stated, in the past decade or so, new constitutional jurisprudence has

emerged in South Africa regarding the requirement of independence that should

characterise independent institutions such as the NPA. One of the important judgments

that has emerged from this jurisprudence is that of Glenister, where the independence

of the then newly created DPCI established by virtue of the South African Police

Services Act 68 of 1995 (SAPS Act) was at issue. As stated in its Preamble, the objective

of the impugned SAPS Act was to enhance the investigative capacity of the police

services in relation to national priority crimes and other crimes, by establishing a DPCI

to combat them. The question that arose in Glenister was whether the Constitution

imposes an obligation on the state to establish and maintain an independent body to

combat corruption and organised crime; and, if so, whether the DPCI established under

the impugned provisions of the SAPS Act met the requirements of independence.

The

majority of the court held that the Constitution does impose this obligation on the state.

See, Glenister (n 25) para 207.

Glenister (n 25) para 207 and Helen Suzman Foundation (n 40) para 31.

McBride v Minister of Police 2016 (2) SACR 585 (CC) (McBride).

Glenister (n 25) para 163.

ibid.

Dyani-Mhango

And on whether the DPCI met the requirements of independence, the court found that

it did not. Accordingly, the provisions of the SAPS Act were declared unconstitutional.

The court’s reasoning, from which this article dr aws an analogy for the pu rposes of

analysing prosecutorial independence, was that the obligation to establish an anti-

corruption body emanated from international law and was enforceable through sections

7(2) and 8 of the Constitution.

In addition, the court reasoned that the state’s

obligations in section 7(2) of the Constitution to ‘respect, protect, promote and fulfil the

rights in the Bill of Rights’ requires that an anti-corruption body must be reasonable,

that is to say, it must be adequately independent.

After examining the relevant

provisions of the SAPS Act relative to the DPCI, the court concluded that:

the absence of specially secured conditions of employment, the imposition of oversight

by a committee of political executives, and the subordination of the DPCI’s power to

investigate at the hands of members of the executive, who control the DPCI’s policy

guidelines, are inimical to the degree of independence that is required.

Accordingly, the impugned legislation was constitutionally invalid to the extent that it

did not secure adequate independence for the DPCI.

Similarly, in McBride, the court was presented with an opportunity to define and

delineate the contours of independence as it pertains to the IPID, a police complaints

body. The question of IPID’s independence arose because the High Court declared

several provisions of the IPID Act unconstitutional. And for this declaration to have

legal effect, it must be confirmed by the court pursuant to section 172 of the

Constitution. In resolving this question, the court focused on two aspects of

independence of the IPID. The first aspect concerned the subjugation of the IPID

executive director to the laws governing the public service. On this aspect, the court

found that the provisions of the IPID Act

undermined the independence of the

executive director. The court reasoned that:

It is axiomatic that public servants are government employees. They are beholden to

government. They operate under government instructions and control. The authority to

discipline and dismiss them vests in the relevant executive authority. This does not

require parliamentary oversight. To subject the Executive Director of IPID to the same

regime is to undermine or subvert his independence. It is not congruent with the

Constitution.

Glenister (n 25) paras 189–194.

Glenister (n 25) para 194.

Glenister (n 25) para 248.

Glenister (n 25) para 251.

Sections 6(3), 16A (1), 16B and 17(1) of the IPID Act 1 of 2011.

McBride (n 51) para 30.

Dyani-Mhango

The second aspect of independence dealt with the removal powers of the Minister of the

Police. Before dealing with this aspect, the court cited with approval the minority

judgment by Chief Justice Ngcobo in Glenister, where he established the criterion—

which was agreed to by the majority—for determining adequate independence of

independent institutions. Ngcobo CJ stated that ‘[u]ltimately therefore, the question is

whether the anti-corruption agency enjoys sufficient structural and operational

autonomy so as to shield it from undue political influence.’

Relying on this principle,

the court in McBride reasoned that section 6 of the IPID Act, which gave the minister

enormous political power and control over the executive director, including removal

power without parliamentary oversight, is antithetical to the entrenched independence

of the IPID contemplated by the Constitution.

According to the court, this was

tantamount to impressible political management of IPID by the minister.

In addition,

the court reasoned that:

To my mind, this state of affairs creates room for the Minister to invoke partisan political

influence to appoint someone who is likely to pander to his whims or who is sympathetic

to the Minister’s political orientation. This might lead to IPID becoming politicised and

being manipulated.

There was another pressing rationale for the court’s conclusion in this case, which was

phrased as follows:

To subject the Executive Director of IPID, which the Constitution demands to be

independent, to the laws governing the public service – to the extent that they empower

the Minister to unilaterally interfere with the Executive Director’s tenure – is subversive

of IPID’s institutional and functional independence, as it turns the Executive Director

into a public servant subject to the political control of the Minister.

Therefore, the impugned provisions of the IPID Act did not pass constitutional muster

and, as consequence, the order of constitutional invalidity by the High Court was

confirmed. Simply put, it was inconsistent with section 206(6) of the Constitution

and

was set aside.

As demonstrated, the principles governing prosecutorial independence as outlined in the

Corruption Watch NPC judgment above are applicable to other independent institutions

Glenister (n 25) para 121.

McBride (n 51) para 38.

ibid.

McBride (n 51) para 39.

Section 206(6) of the Constitution stipulates that; ‘On receipt of a complaint lodged by a provincial

executive, an independent police complaints body established by national legislation must investigate

any alleged misconduct of, or offence committed by, a member of the police service in the province.’

McBride (n 51) para 40.

Dyani-Mhango

such as the IPID

and the DPCI because of their involvement in the administration of

justice. The court has been at pains to emphasise that ‘[a]t the centre of any functioning

constitutional democracy is a well-functioning … justice system.’

The next section deals with prosecutorial impartiality in South Africa.

Prosecutorial Impartiality in South Africa

As explained earlier, associated with the independence of the prosecutor in exercising

official duties, but certainly a self-standing requirement, is the requirement of

impartiality. Because a prosecutor is an officer of the court, they are required to

discharge prosecutorial duties not only independently but also impartially. What has

become a seminal quotation of common-law apex courts on the impartiality of

prosecutors emanates from the dictum of the Canadian Supreme Court delivered by

Rand J in Boucher v The Queen

some six decades ago:

It cannot be over-emphasised that the purpose of a criminal prosecution is not to obtain

a conviction, it is to lay before a jury what the Crown considers to be credible evidence

relevant to what is alleged to be a crime. Counsel have a duty to see that all available

legal proof of the facts is presented: it should be done firmly and pressed to its legitimate

strength but it must also be done fairly. The role of prosecutor excludes any notion of

winning or losing; his function is a matter of public duty than which in civil life there

can be none charged with greater personal responsibility. It is to be efficiently performed

with an ingrained sense of dignity, seriousness and the justness of judicial proceedings.

This statement of law has not only been repeatedly cited by the Supreme Court of

Canada in the leading cases involving prosecutors,

but it has also been relied upon by

courts beyond Canada’s borders.

In South Africa, Cloete JA not only referred to it in

S v Van der Westhuizen, but also referred to those cases from the Commonwealth and

other common-law jurisdictions where it has been both cited and followed.

McBride (n 51) para 31, where the Constitutional Court stated that the independence of the IPID

included ‘the method of appointment, the method of reporting, disciplinary proceedings and method

of removal of the Executive Director from office, and security of tenure.’

Corruption Watch NPC (n 2) para 20.

[1955] SCR 16.

Boucher (n 69) 23–24.

Nelles v Ontario [1989] 2 SCR 170; Canadian Oxy Chemicals Ltd v Canada (Attorney General) [1999]

1 SCR 743 para 25; R v Stinchcombe [1991] 3 SCR 326 at 10; Proulx v Quebec (Attorney General)

(2001) 206 DLR (4th) 1 (SCC) para 41.

See, for example, R v H [2004] 1 All ER 1269 (HL); Randall v The Queen [2002] 1 WLR 2237 (PC);

R v Puddick (1865) 4 F & F 497; R v Banks [1916] 2 KB 621; Libke v R (2007) 235 ALR 517;

Whitehorn v The Queen (1983) 152 CLR 657 (HCA); and DO v DPP [2006] IESC 12.

S v Van der Westhuizen 2011 (2) SACR 26 (SCA) paras 10–13.

Dyani-Mhango

Similarly, the court invoked Boucher in S v Shaik.

In this case, the applicants had

argued before the court that the prosecutor did not adhere to his constitutional duty to

remain impartial and to execute his functions without fear, favour or prejudice.

Although they did not show any proof or the basis for the alleged bias, they only averred

that the prosecutor, Mr Downer, while wearing the hat of investigator, came into

possession of information that would only have been available to him as a prosecutor.

But as the court held, additional knowledge and understanding of the facts do not

amount to bias or prejudice. It was not alleged that the prosecutor waged a personal

vendetta,

impaired the conduct of the proceedings and the dignity of the court,

used the same office as the assessors.

Indeed, the applicants made it clear that they

were not attacking the ethics of Mr Downer’s conduct.

The court further questioned what the purpose of an investigator was if not to hand over

to the prosecutor as much evidence as can be lawfully obtained. According to the court,

it is in the best interests of all, even those of the accused, for the prosecutor to have as

much evidence as possible available in their position as truth-seeker. Referring with

approval to Rand J’s dictum in Boucher, the court concluded this aspect of its judgment

by holding that none of Mr Downer’s actions fell short of his role as a prosecutor as set

out in the NPA Act or the Constitution. In effect, the applicant’s submissions on the

alleged unfairness of the trial, whether based on the failure to charge other parties or on

the alleged prosecutorial misconduct, revealed no prospects of success on appeal.

It is

clear that Boucher has influenced in the South African jurisprudence on prosecutorial

impartiality. But what exactly does ‘prosecutorial impartiality’ mean in South Africa?

As alluded to earlier in this article, the Constitution enjoins the legislature to adopt

legislation which ensures that the NPA exercises its function ‘without fear or favour’.

Indeed, the NPA Act has been found to incorporate the duty to act impartially.

In this

regard, there are at least four provisions in the NPA Act which give effect to the

principle of impartiality. First, section 32, aptly titled ‘[i]mpartiality of, and oath or

affirmation by members of prosecuting authority,’ requires prosecutors ‘ to serve

impartially and exercise, carry out or perform his or her powers, duties and functions in

2008 (2) SA 208 (CC) para 67.

S v Shaik (n 74) para 65.

Smith v Ushewokunze 1998 (3) SA 1125 (SZ) 1130H–I.

Jesse v Pratt NO 2001 (8) BCLR 810 (Z) 816F–I.

S v Jaipal 2005 (4) SA 581 (CC) para 5.

S v Shaik (n 74) para 66.

S v Shaik (n 74) paras 67–68.

Section 179(4) of the Constitution.

See S v Van der Westhuizen (n 73) para 9.

Dyani-Mhango

good faith and without fear, favour or prejudice, and subject only to the Constitution

and the law.’

Secondly, the NPA Act bars any organ of state or its member or employee, or any other

person, from improperly interfering with the NPA or its members ‘in the exercise,

carrying out or performance of its, his or her powers, duties and functions.’

Thirdly, section 32(2)(a) of the NPA Act goes further to provide for an oath of

affirmation which every NDPP, Deputy NDPP or prosecutor must swear to uphold and

protect the Constitution and the entrenched fundamental rights and to

enforce the law of the Republic without fear, favour or prejudice and, as the

circumstances of any particular case may require, in accordance with the Constitution

and the law.

Fourthly, section 22(6)(a) of the NPA Act provides that:

the [NDPP] shall, in consultation with the minister and after consultation with the

Deputy [NDPP] and the Directors, frame a code of conduct which shall be complied

with by members of the prosecuting authority.

The Code of Conduct for Members of the National Prosecuting Authority

identifies,

in its item C, nine different factors that will enhance the performance of prosecutorial

duties, being issues that are capable of keeping them out of the realm of corruption,

ensuring impartiality in the performance of their prosecutorial duties, if they strictly

abide by them. These include the commands that they should:

(a) Carry out their functions impartially and not become personally, as opposed to

professionally, involved in any matter;

(b) Avoid taking decisions or involving themselves in matters where a conflict of

interest exists or might possibly exist;

interests and concerns, however vociferous these may be presented;

(d) Avoid participation in political or other activities which may prejudice or be

perceived to prejudice their independence and impartiality;

Section 32(1)(a).

Section 32(1)(b).

GG 33907 (29 December 2010) GN R1257.

Dyani-Mhango

(e) Not seek or receive gifts, donations, favours or sponsorships that may compromise,

or may be perceived to compromise, their professional integrity;

(f) Act with objectivity and pay due attention to the constitutional right to equality;

(g) Take into account all relevant circumstances and ensure that reasonable enquiries

are made about evidence, irrespective of whether these enquiries are to the

advantage or disadvantage of the alleged offender;

(h) Be sensitive to the needs of victims and do justice between the victim, the accused

and the community, according to the law and the dictates of fairness and equity;

and

(i) Assist the court to arrive at a just verdict and, in the event of a conviction, an

appropriate sentence based on the evidence presented.

To complement the above provisions, the SCA in Van der Westhuizen established a

principle that the duty of a prosecutor to act impartially is part of the more general duty

to act without fear, favour or prejudice.

Indeed, under an adversarial system, the

prosecutor’s function is essentially to discredit the defen ce’s evidence for the purposes

of obtaining a conviction. In this respect, it is not the function of a prosecutor to bring

evidence forward which is destructive of the state’s case, or which advances the case of

the accused. Instead, the duty of a prosecutor is to see that all available legal proof of

the facts is presented and is discharged by making the evidence available to the

accused’s legal representatives; the prosecutor’s obligation is not to put the information

before the court.

Therefore, the SCA found that there was no substance in the

appellant’s argument that he had not received a fair trial because the state had called

some witnesses and not others. Nor did the prosecutor simply make state witnesses who

had not been called by the state available to the defence: the prosecutor placed on record

that he would help the defence to locate and consult with such witnesses. And if the

The International Codes contain clauses on prosecutorial independence and impartiality and the role

of prosecutors in criminal proceedings which are not dissimilar to those in the South African Code

designed and adopted pursuant to art 10 of the UN Declaration of Human Rights 1948; art 14 of the

International Covenant on Civil and Political Rights 1966; and art l5(a) of the International Covenant

on the Elimination of all Forms of Racial Discrimination 1966. They include: the UN Guidelines on

the Role of Prosecutions adopted by the 8th UN Congress on the Prevention of Crime and Treatment

of Offenders, in Havana 27 August to 7 September 1990; and the Standards of Professional

Responsibility and Statements of the Essential Duties and Rights of Prosecutors of the International

Association of Prosecutors adopted in Amsterdam, April 1999.

Van der Westhuizen (n 73) para 9.

Van der Westhuizen (n 73) paras 12–13.

Dyani-Mhango

appellant’s attorney did not insist that subpoenas issued at the suit of the defence be

enforced, that cannot be laid at the door of the prosecution.

Again, and as demonstrated in the discussion on prosecutorial independence, South

African courts draw a distinction between prosecutorial impartiality and judicial

impartiality. For example, the SCA recently emphasised in Maharaj v Mandag Centre

for Investigative Journalism NPC

that the NDPP is no ordinary litigant;

that the

NDPP is an officer of the court, who is duty-bound to take the court into her confidence

and fully explain the facts so that an informed decision can be taken.

The role and

function of the prosecution in the criminal justice system is no doubt important and

although the prosecutor is regarded as an officer of the court, their functions and

responsibilities are different from those of a magistrate or a judge. Therefore, a

prosecutor’s role should not be equated to that of the judicial officer such that the

prosecutor’s impartiality could not be measured with the same scale as that of a judicial

officer in a matter such as recusal on the ground of bias.

It is not surprising that, based on the above proposition, the SCA held in Porritt v

NDPP

that the trial court had erred in applying the test enunciated in President of the

Republic of South Africa v South Africa Rugby Football Union (SARFU 3)

for the

recusal of a judicial officer on the ground of apprehension of bias to recuse two

prosecutors in that case. Rather, the applicable test of recusal to the circumstances of

prosecutors is that formulated in Director of Public Prosecutions, Western Cape v

Killian,

where the crux of the complaint was that the prosecutor played the role of an

investigator and later acted as prosecutor in the same case. The court described the test

for the recusal of a prosecutor as follows:

The question remains whether the prosecutor’s dual role in this case created a

substantive unfairness per se. Neither precedent nor principle persuades that it did.

Whether fulfilment of that dual role does involve or bring about substantive unfairness

in an ensuing criminal trial will be a matter to be decided on the facts of each case by

the trial court. Unfairness does not flow axiomatically from a prosecutor having had that

dual role.

Van der Westhuizen (n 73) para 14.

2018 (1) SACR 253 (SCA) para 24.

Democratic Alliance v President of the RSA 2012 (1) SA 417 (SCA); Zuma v Democratic Alliance

[2014] 4 All SA 35 (SCA).

NDDP v Freedom Under Law 2014 (4) SA 298 (SCA); Kalil NO v Magaung Metropolitan

Municipality 2014 (5) SA 123 (SCA) para 30.

2015 (1) SACR 533 (SCA) paras 20–21.

1999 (4) SA 147 (CC) para 48.

2008 (1) SACR 247 (SCA).

ibid para 28.

Dyani-Mhango

In this regard, prosecutors cannot be subjected to the same standard applied to the

recusal of judges in that the prosecutor had earlier been involved in the case without

allegations of impropriety on his part in the course of the previous litigation or during

the course of the present proceedings. The prosecutors in the present case could not be

removed from carrying out their prosecuting function simply because they were not

independent of the complainant, which in the present case was the state.

The previous section has demonstrated that prosecutorial impartiality is equally as

important as prosecutorial independence for the effective administration of the criminal

justice system. In this respect, there are measures put in place to ensure that a prosecutor

exercises their powers without fear or favour such as by taking an oath of office pledging

to be bound by the Constitution and the law. In order to safeguard their impartiality, the

Constitution and the NPA Act also bar anyone from interfering with the duties of the

prosecutor.

Conclusion

This article began by highlighting that there had been some controversies that were

caused in particular by high-profile and politically charged criminal investigations

which led to the questioning of the NDPP’s independence; and by stressing the fact that

no incumbent of the Office of NDPP has ever served full term since its inception. Since

the appointment of the new NDPP, Shamila Batohi,

there have not been any high-

profile criminal investigations that implicate those currently in political power.

However, the law remains the same and it remains to be seen whether there will be any

controversy in future should the NDPP attempt to investigate those in power. This article

has analysed the courts’ jurisprudence and demon strated that prosecutorial

independence and prosecutorial impartiality are settled concepts in South Africa, as seen

in the courts’ jurisprudence. These concepts are interconnected and yet distinct, but they

are distinguishable from judicial independence and judicial impartiality. Consequently,

it seems that the controversy is likely to arise in questions relating to prosecutorial

independence rather than prosecutorial impartiality, especially in relation to high-profile

cases. This is because the prosecutorial independence relates to the close relationship

the NDPP has with the executive branch of government. The article further established

that the jurisprudence on prosecutorial independence has had an influence on other

institutions such as the DPCI and the IPID, because they form an integral part of the

This decision does not in any way contradict the institutional independence which the NPA enjoys in

terms of the Constitution and the NPA Act. See DA v Acting NDPP 2012 (3) SA 486 (SCA) para 45,

where the court stated: ‘It is of fundamental importance to our democracy that an institution such as

the NPA, which is integral to the rule of law, acts in a manner consistent with constitutional prescripts

and within its powers, as set out in the [NPA Act].’

See, for example, Pelane Phakgadi, ‘Batohi’s Appointment as NDPP Welcomed Across the Board’

(Mail & Guardian, 4 December 2018) as-

ndpp-welcomed-across-the-board/> accessed 23 July 2020.

Dyani-Mhango

administration of criminal justice. Equally, courts’ jurisprudence on prosecutorial

impartiality shows that an impartial prosecutor is important for administering the

criminal justice system effectively. One cannot fail to see the imperative that a

prosecutor must exercise their powers without fear or favour.

Dyani-Mhango

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Randall v The Queen [2002] 1 WLR 2237 (PC).

S v Jaipal 2005 (4) SA 581 (CC).

S v Shaik & Others 2008 (1) SACR 247 (SCA).

S v Shaik & Others 2008 (2) SA 208 (CC).

S v Van der Westhuizen 2011 (2) SACR 26 (SCA).

Smith v Ushewokunze 1998 (3) SA 1125 (SZ).

The Queen v Beauregard [1986] 2 SCR 56.

Valente v The Queen [1985] 2 RCS 673.

Whitehorn v The Queen (1983) 152 CLR 657 (HCA).

Zuma v Democratic Alliance [2014] 4 All SA 35 (SCA).

Zuma v National Director of Public Prosecutions 2009 (1) BCLR 62 (N).

Zuma v National Director of Public Prosecutions 2009 (2) SA 277 (SCA).

Legislation

Constitution of the Republic of South Africa, 1996.

Independent Police Investigative Directorate Act 1 of 2011.

National Prosecuting Authority Act 32 of 1998.

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

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