The Mushwana Report and prosecution policy

• Jurisdiction: South Africa
• Date: 16 August 2019
• Citation: (2005) 18 SACJ 279
• Published date: 16 August 2019
• Pages: 279-305
• Author: Mervyn E Bennun

The Mushwana Report and

prosecution policy

MERVYN E BENNUN∗

ABSTRACT

The meaning of the expression ‘a prima facie case’ as it is used in South Africa and

in several other jurisdictions, and is considered also the nature of the role of the

prosecutor in South Africa when considering whether or not a matter should be

brought to trial is reviewed. It is argued that this involves considerations which

are different from the question which the trial judge must consider at the end of

the case for the prosecution in terms of s 174 of the Criminal Procedure Act, and

that similar considerations are general to, and inherent in, the accusatorial mode

of trial elsewhere. The Report by the Public Protector into the objections brought

by a person of whom it was said by the National Director of Public Prosecutions

that, despite the existence of a prima facie case of offences committed by that

person there would be no prosecution, is reviewed.

Introduction

On 23 August 2003, evidently reacting to intense public interest in South

Africa in a matter which entailed a protracted investigation by various

State organs including the National Directorate of Public Prosecutions, the

National Director of Public Prosecutions issued a press statement to the

effect that-

‘After careful consideration in which we looked at the evidence and facts

dispassionately, we have concluded that, whilst there is a prima facie case of

corruption against the Deputy President, our prospects of success are not strong

enough. That means that we are not sure if we have a winnable case’.

‘Accordingly, we have decided not to prosecute the Deputy President.’1

279

∗ BA LLB (UCT) LLM (Lond); Honorary Research Associate, University of Cape Town; formerly

Lecturer in Law, University of Exeter. I continue to be grateful to the Faculty of Law at the

University of Cape Town for their generous hospitality, and to various colleagues there for letting

me bend their ears on this topic. This paper is in memor y of Peter English, my late colleague at

Exeter with whom I shared the Criminal Law course. His sudden and untimely death in 1997

robbed me of a dear friend who was one of the most inspiring and brilliant lecturers I ever

knew. How he rejoiced at the emergence of the new South Africa, and how he would have

relished the fresh intellectual sparkle of academic life in it! I miss him sadly, and the many lively

discussions during which, when under pressure, he would resort unfairly to fragrant pipe tobacco

as a diversionary tactic. He stimulated my interest in the topic of this paper and his challenges

inspired any merit it may have. Its weaknesses must be attributed to me alone.

1 This quotation, and factual details relating to the matter, are taken from the Special Report

on an investigation by the Public Protector of a complaint by Deputy President J

(2005) 18 SACJ 279

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280 SACJ • (2005) 3

On 30 October 2003, the Deputy President referred this press statement

to the Public Protector for his consideration2 in terms of the provisions of

s 6 of the Public Protector Act 23 of 1994 on the grounds that–

‘... [T]he decision not to prosecute by the National Director (supported by the

Minister of Justice), whilst at the same time stating that there was a ‘prima facie’

case against me, has effectively denied me the opportunity to defend myself

both as a citizen of this country and as a government off‌i cial holding a high

ranking off‌i ce.’3

On 28 May 2004 the Public Protector, Adv. ML Mushwana, duly sub-

mitted an interim report (referred to hereafter as the Mushwana Report)

to Parliament where it was considered. In it, the Public Protector discussed

the law relating to, and the meaning of, the expression ‘a prima facie case’

with special reference to its use in a criminal context.

In summary, he remarked that its origin is ‘legalistic’ and that it is used

not only by lawyers but also by journalists and others who often ‘quote

it out of context and meaning’.4 Basing himself on the authoritative

textbook by Hoffmann and Zeffertt,5 he noted two usages or meanings of

the expression. The f‌i rst–

‘relate[s] to a particular stage in a civil or criminal case before a court of law

when the presiding off‌i cer has to decide whether or not to decree absolution at

the end of the case of the plaintiff or to discharge the accused at the end of the

prosecution’s evidence’.

He then quoted from the book:

‘It is often said that in the absence of such evidence there is “no case to answer”,

but the refusal of absolution or discharge does not necessarily mean that an

answer is required. The defendant or accused may close his case at once and

still succeed. In this sense, therefore, a ruling that a party has “made out a prima

facie case” means only that his opponent runs the risk of losing if he offers no

evidence.’

Zuma against the National Director of Public Prosecutions and the National Prosecuting

Authority in connection with a criminal investigation conducted against him, 28 May

2004; available at http://www.pmg.org.za/bills/040529pprotect.htm accessed on 2 June,

2005.

2 Other issues were also referred to the Public Protector, but they are not material to this

article. To avoid any misunderstanding, the point must be made that the factual background

to the incident which brought the matter to the attention of the Public Protector and

the identity of the various individuals are irrelevant to this article. The Public Protector

addressed the legal issues of the complaint before him in general terms, and his conclusions

are of general application regardless of the nature of any allegations under consideration,

or the identity of any individuals involved. This article is written in the same spirit.

3 Above [n1] para 3 3 2 1.

4 Mushwana Report, above (n1) para 21 1.

5 LH Hoffmann and DT Zeffertt The South African Law of Evidence; now see DT Zeffertt,

A Paizes and A St Q Skeen, The South African Law of Evidence (2003).

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