The NPA's limited independence and how to mitigate political interference in high-profile cases

• Published date: 01 July 2020
• Author: Jameelah Omar
• DOI: 10.25159/2522-6800/7343
• Pages: 1-29
• Date: 01 July 2020

Article

Southern African Public Law

https://doi.org/10.25159/2522-6800/7343

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

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

Volume 35 | Number 2 | 2020 | #7343 | 29 pages

© Unisa Press 2021

The NPA’s Limited Independence and How to

Mitigate Political Interference in High-Profile Cases

Jameelah Omar

https://orcid.org/0000-0002-8901-7321

University of Cape Town, South Africa

jameelah.omar@uct.ac.za

Abstract

In South Africa, the efficacy of the criminal justice system rests on the ability

of the National Prosecuting Authority (NPA) to conduct prosecutions fairly and

effectively. This is because it enjoys a monopoly over the prosecution of crime,

as it decides which cases will proceed to court. While there is some room for

private prosecutions, these are few and far between and do not make a dent in

the power of the state to prosecute crime. Political pressure can interfere with

effective prosecution. Particularly where an alleged perpetrator is a political

figure, there is an incentive to try to influence the head of the prosecuting

authority. My suggestion is to establish a special prosecuting office, separate

from the normal prosecuting authority, to deal with cases involving members of

the executive and the legislature. The purpose is to create a greater measure of

independence, although comparative examples demonstrate that such an office

too can suffer political interference. Removing political cases from the NPA

would also enable the head of the NPA to concentrate on increasing the

effectiveness of the prosecuting authority and public confidence in its abilities,

without derailing its focus by having to fight for institutional independence.

Keywords: National Prosecuting Authority; institutional independence; political

interference with the NPA; National Director of Public Prosecutions

Omar

2

Introduction

The National Prosecuting Authority (NPA) is increasingly on the receiving end of

criticism for its failure to prosecute apartheid crimes and, more recently, inertia in

pursuing allegations of corruption during the post-1994 period, particularly during

former President Jacob Zuma’s terms. These issues are currently being aired at the

Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud

in the Public Sector including Organs of State (known as the Zondo Commission). It is

important to understand the structure, composition, and accountability mechanisms of

the NPA in order to try to track these failures and, hopefully, overcome them.

The NPA is not a fully independent arm of the state. While section 179(4) of the

Constitution of the Republic of South Africa, 1996, enjoins the national legislature to

enact legislation that ensures the NPA ‘exercises its functions without fear, favour or

prejudice,’ this limited autonomy is circumscribed in a number of ways, including by

the Constitution itself. Section 179 of the Constitution does not actually use the word

‘independent’ in describing the authority of the NPA or in instructing legislation to

create a semi-autonomous structure.

Whether this failure to prescribe independence is an oversight or is deliberate is

somewhat unclear. What is apparent is that the lack of guarantee of independence has

had long-term and calamitous consequences for the NPA and its effective functioning.

The role of the National Director of Public Prosecutions (NDPP) and the turbulence in

the office have also contributed to the problems in the NPA.

The importance of an independent prosecuting authority must be acknowledged. The

NPA, as per its constitutional mandate, is the gatekeeper of criminal matters proceeding

to public prosecutions.

1

It enjoys a monopoly over prosecuting offences; however, this

is not an absolute monopoly. Private prosecutions are possible, but in terms of sections

7 and 8 of the Criminal Procedure Act 51 of 1977, these can only be instituted through

cooperation with the NPA. For section 7 private prosecutions, the NPA must first issue

a certificate nolle prosequi,

2

which means that the NPA has concluded its investigations

and has decided not to prosecute.

3

It can be very expensive to run a private prosecution,

as the costs are borne by the individual complainant, and the rules on who has standing

to conduct a private prosecution are very strict, reducing the efficacy of private

1

Section 179(2) vests the NPA with authority to conduct prosecutions over all criminal offences.

2

Steph van der Merwe, ‘The Prosecution of Crime’ in JJ Joubert (ed), Criminal Procedure Handbook

(Juta 2017) 89.

3

With respect to section 8 private prosecutions, academic commentary argues that these are not true

private prosecutions, because they do not involve an individual frustrated by the NPA’s decision not

to prosecute. Instead, they involve prosecutions by a body given such power through legislation. See

Van der Merwe (n 2) 86.