Taming the Prosecutorial Beast: Of Independence, Discretion and Accountability

• Jurisdiction: South Africa
• Pages: 297-318
• Published date: 16 August 2019
• Citation: (2012) 23 Stell LR 297
• Date: 16 August 2019
• Author: Mabowa Thomas Mokoena

297

TAMING THE PROSECUTORIAL BEAST:

OF INDEPENDENCE, DISCRETION AND

ACCOUNTABILITY

Mabowa Thomas Mokoena

BIuris LLB LLM

Senior Lecturer, Department of Criminal and Procedural Law, UNISA*

1 Introduction

When the National Director of P ublic Prosecut ions (“NDPP”) was

suspended from his duties by the president of the Republic of South Africa

on 23 Septe mber 2007 for the “i rretrievable breakdown”1 of t he relationship

between him (the NDPP) and the Minister of Justice and Constitut ional

Development, the incident lite rally th rew the cat amongst the pigeons on

the question of prosecutorial i ndependence. The debacle culm inated in the

establishment of a commission of inqui ry, in which the government sought to

demonstrate that the incumb ent was “no longer a t and proper person to hold

ofce as NDPP”.2

Although in most jurisdictions the prosecutorial authority is ostensibly

independent, its head is mostly accountable to an executive funct ionary,

which is in turn also account able to govern ment in one way or anothe r. This

type of control is dened as “sup erintendence”3 i n some jurisdictions, a nd

“nal respon sibility”4 in othe rs. The precise denition of cont rol nonetheless

remains mire d in controversy when the need for interpretation ar ises.

A wholly independent prosecutorial authority re mains, prima facie, a

commendable ideal, wor thy of aspiration and emulation in every f ree and

democratic s ystem. However, it may become a vehicle for inst itutional

oppression, if left u nchecked by reg ulation and legislation, as evidenced in

the Italia n example.5 On the other hand, democratic or hierarchical control

of the prosecution is an untenable alter native, especially when such control is

imposed in order to exer t inuence on individual decisions on whether or not

to prosecute.

The Constitution of the Republic of South Africa, 1996 (“the Constitution”)

and the National Prosecuting Authority Act 32 of 1998 (the “NPA Act”), provide

* This article was present ed by the author at th e Society of Law Teache rs of South ern Africa Conference

hosted by Stellen bosch University, 17-01-2011–20-01-2011

1 Ginwala Commissi on Report of the En quiry into the Fi tness of Advoca te VP Pikoli to Hold the Office of

National Dire ctor of Public Prosec utions (2008) 12 para 14, 27 para 32 , 30 para 38 1

2 6 para 9

3 Ex Parte Attorn ey-General , Namibi a: In Re: The C onstitutiona l Relat ionship between the Attorney-

General and th e Prosecutor- General 1995 8 BCLR 1070 (Nms) para 1081H

4 Para 1089D

5 G di Federico “Pr osecutorial I ndependence a nd the Democrat ic Requirement of Accountabilit y in Italy:

Analysis of a Devi ant Case in a Compar ative Perspective” (1998) 38 Briti sh J Criminol 371 380.

(2012) 23 Stell LR 297

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the st ructural f ramework for the delineation of the powers and functions of

the functiona ries charged with prosecution. The Mi nister of Justice exercises

nal responsibilit y over the National Prosecuti ng Authority (the “NPA”). On

the other hand, the overr iding responsibilit y of the NDPP is enjoined w ith

concomitant account ability to the Minister and the Legislat ure.

However, the extent of the NDPP’s accountabilit y and the Minister’s

corresponding oversight a re, it is submitted , not clearly dened, he nce the

debacle wh ich led to the subsequent suspen sion, and eventual dismissal of

the NDPP.

Also raised by the issue of accounta bility is the quest ion whether

prosecutorial account ability should not, in fact, be directed to the public. This

is because prosecutors ordinarily make de cisions (particularly the decision

not to prosecute) which sometimes remain unexplained and m isunderstood to

ordinary citizens, wh ich may under mine public c ondence in the decisions

taken.

2 Historical background

The ofce of the Attorney-General (as he then was) in South Africa has had

a rather chequered histor y, which may be summa rised as follows:

Under the Union Gover nment the position was regulated by the South

Africa Act, 1909. In terms of the latter, the Attorney-Gener al had an unfettered

discretion of all “powers, authorities, and functions relating to the prosecution

of cr imes and offences”.6 It is worth noting t hat under the auspices of this

section, although the administration of justice in general was vested in the

Minister of State, t he prosecution of crimes and offences was the exclusive

preserve of the Attor ney-General.

In terms of the Criminal Procedure and Evidence (Amendment) Act 39

of 1926 the “right and duty of prosecut ion vested in and entrusted to such

Attorney-Gener al or solicitor-general (as the case may be) was absolutely

under his own ma nagement and cont rol”.7 Under th is dispensation the

Attorney-Gener al was a public ofcial and not a memb er of government or

of cabinet.8

It was only in terms of the Criminal and Magistrates’ Procedure (Amendment)

Act 39 of 1926 that the Minister of Justice was given “minister ial responsibility

over t he powers and funct ions of the attorney-gener al”.9 The General Law

Amendment Act 46 of 1935 also accorded the Attorney-General the authorit y

to prosecute subject to the cont rol and directions of the minister of justice.10

The Act went a step furthe r, proclaimi ng that the “min ister may reverse any

decision ar rived at by an attorney-general and may him self or in general or

6 S 139 of the South Africa Act

7 S 7(2) of the Criminal Proced ure and Evidence (Ame ndment) Act

8 JA D’Oliveira “T he P rosecuting Authorit y: S eeking a Bridle for the Unicorn” in G Carpente r (ed)

Suprema Le x: Essays on the Const itution present ed to Marinus Wiech ers (1998) 71 72

9 S 1 of the Criminal and M agistrates’ Pro cedure (Amendme nt) Act

10 S 1 of the Genera l Law Amendment Act

298 STELL LR 2012 2

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