The Application of the Promotion of Administrative Justice Act 3 of 2000 to Decisions not to Prosecute

• Jurisdiction: South Africa
• Citation: (2016) 27 Stell LR 599
• Date: 27 May 2019
• Published date: 27 May 2019
• Pages: 599-609
• Author: Anmari Meerkotter

THE APPLICATION OF THE PROMOTION OF

ADMINISTRATIVE JUSTICE ACT 3 OF 2000 TO

DECISIONS NOT TO PROSECUTE

Anmari Meerkotter

LLB (Wits) LLM (Wits)

Research and Teaching Associate, School of Law, University of the Witwatersrand

1 Introduction

The alleged involvement of h igh-ranki ng public ofcials in crimi nal

activity, and subsequent failure s to prosecute these individuals, h ave given rise

to some concern with rega rd to the integrit y of the members of the National

Prose cuti ng Autho rity (“NPA”).1 As such, there seems to be a growi ng need

to hold prosecutorial ofcials to account for such decisions, given their degree

of public signicance and the mistrust which has taken hold of many members

of the South African public.2

The Promotion of Administr ative Justice Act 3 of 2000 (“PAJA”) is a pre-

eminent source of public account ability in the South Africa n legal framework,

in that it provides an avenue for the regulation a nd review of the discretionary

decisions made by state ofcials.3 As such, it ought to serve as a usef ul starting

point in scruti nising prosecutorial d ecisions. However, PAJA contains a

number of exemptions, which serve to exclude cert ain actions from the scope

of the Act.4 One such exclusion pertains to “a decision to in stitute or continue

a prosecution”.5 Indeed, the Supreme Court of Appeal (“SCA”) has conrmed

that such a decision falls beyond the scope of PAJA’s application and is therefore

not reviewable under it.6 The question that ar ises as a natur al consequence is

whether the converse is also tr ue. In other words, does this exclusion implicitly

1 See for a number of exa mples J Kutner “In Sout h Africa, Corr upt Prosecutors a n Even Larger Problem”

(02- 01-2014) The Christia n Science Moni tor

South-Afr ica-corrupt- prosecutors-a n-ever-larger-problem> (accessed 22- 09-2015). S 179(1) of the Con-

stitution of th e Republic of South Af rica, 1996 (“Constit ution”) establi shes a “single nation al prosecuting

authority i n the Republic, struct ured in terms of an Ac t of Parliament”, being the Nat ional Prosecuting

Authority Act 32 of 1998. S 179(2) of the Constitut ion further endows the NPA with the “power to institute

crimin al proceedings on b ehalf of the state”.

2 R Pfaff & H Schneid er “The Promotion of Adm inistrative Ju stice Act from Germ an perspective” (20 01)

17 SAJHR 59 77; Kutner “In South Afr ica, Corr upt Prosecu tors an Even Larger Probl em” (02-01-2014)

The Christ ian Science Monito r.

3 H Corder “Review ing Review: Much Achieved , Much More to Do” in H Corder & L Van de r Vijver (eds)

Realising Administrative Justice (2002) 1 1-2.

4 Some of these exclusion s “are of a merely declarato ry nature” and wer e included to corres pond with the

jurispr udence of the Const itutional Cou rt in respe ct of legislative, execut ive and judicial dec isions, which

are not of an adm inistrative natu re by definition. See Pfaf f & Schneider (2001) SAJHR 77; C Hoexter

Administrat ive Law in South Afr ica 2 ed (2012) 234.

5 S 1( ff) of PAJA.

6 National Dire ctor of Public Prose cutions v Free dom Under Law 2014 4 SA 29 8 (SCA) par a 35. Altho ugh,

such decisio ns can be r eviewed under the principle of legality: see paras 36 -37; Hoexter Administrative

Law 242.

599

(2016) 27 Stell LR 599

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