Mud+in+the+waters+of+justice+in+SA,+Mervyn+Bennun,+Business+Day

Business Day, Johannesburg, 03 May 2007
=Mud in the waters of justice in SA=


 * Mervyn Bennun**

THE doctrine of the separation of powers is fundamental in the South African constitution. In the context of criminal justice, it means that a court cannot decide whether someone should be prosecuted, and the National Prosecuting Authority (NPA) — as part of the executive — cannot decide whether a person is guilty. The statement by the previous national director of public prosecutions, Bulelani Ngcuka, that Jacob Zuma would not be prosecuted because the prospects of success were not strong enough, despite the NPA’s view that there was a prima facie case of corruption against him, was the subject of an inquiry by Public Protector Lawrence Mushwana. His strongly worded conclusion, in May 2004, was that the statement was unfair, prejudicial and a violation of Zuma’s right to human dignity.

The NPA, now headed by Vusi Pikoli, has not acknowledged the public protector’s conclusions and disregards their legal basis, and it appears to have developed a dangerous culture of indifference to the fundamental constitutional boundaries within which it has to operate.

The NPA’s functions are spelt out in the legislation enacted to give effect to the statement in the constitution that “there is a single national prosecuting authority in the republic, structured in terms of an act of Parliament”, and that it “has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings”. In due course, the National Prosecuting Authority Act was passed in 1998. Section 20 repeats the constitution’s words.

That is the limit of the NPA’s authority. It is not a part of the judiciary and does not have any of the functions of the courts: it cannot decide guilt (as the public protector has made clear), nor sentence, nor is it an elected organ of the state: its national director and deputy directors are appointed by the president.

It must act impartially and independently. No appeal lies against its decisions, which are discretionary; the sole criterion for this discretion is whether or not there is a reasonable prospect of success when deciding whether to prosecute or not, or when dealing with other matters “incidental” to the institution of criminal proceedings, such as whether to oppose bail or appeal against a sentence or a decision on a point of law.

It is certainly not “incidental to instituting criminal proceedings” for the NPA to comment publicly on the prospects of a successful prosecution, or to express its approval or dissatisfaction with the decisions of the courts.

The NPA must determine prosecution policy with the concurrence of the justice minister and publish this in directives. It has issued a directive stating that, “in deciding whether or not to institute criminal proceedings against an accused, prosecutors should assess whether there is sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution. There must indeed be a reasonable prospect of a conviction, otherwise the prosecution should not be commenced or continued.”

This is, in fact, no more than the South African formulation of similar guidelines to the same effect elsewhere in the world.

The directive notes that the NPA may also be faced with decisions relating to initiating appeals, and it is clear that the same criterion used for deciding whether or not to prosecute must be applied here too: is there a reasonable prospect that an appeal will be successful?

In all cases, the NPA can make submissions but must abide by the conclusions of the court.

These are not trivial matters. As the public protector has shown, disregarding the separation of powers can have very grave consequences indeed.

In 2001, the Criminal Procedure Act was amended to regulate what are now called plea and sentence agreements, with all-party support, to comply with the new constitution. The NPA duly issued another set of directives setting out how the procedure is to be used by it.

The chairwoman of Parliament’s portfolio committee on justice and constitutional development, Fatima Chohan-Khota, said that the intention of the legislation was to simplify and streamline criminal procedure; not to obviate difficult and complex trials, but to reduce the time required for “open-and-shut” cases, and assist in establishing restorative justice.

In fact, the agreements are now taking on a life of their own, with the result that an alternative type of prosecution and criminal trial is developing in SA, in which the NPA appears to be taking on the role of the court.

The most obvious reason for pleading guilty is in the hope that this would be taken into account in the sentence, but this has merged with other reasons. Even though they may have genuine defences, accused parties may prefer to have their cases disposed of quickly, without the presentation of incriminating witnesses, and with the least possible public attention.

According to a statement by the NPA on December 1 2005, while prosecutors were preparing for the trial of Peter Zimmerman, a Swiss tourist, on a charge of indecent assault, they were informed that the complainant, a street child, could not be found. One report was that chances were “slim” that the boy would have testified against the accused. According to the NPA’s spokesperson, the only options for the NPA were either to agree to a plea bargain with the accused, or to withdraw the charges.

In other words, the NPA had taken the decision that Zimmerman was guilty notwithstanding that this could not be proved in court for want of an essential witness, and that a conviction had to be secured at all costs.

In another illustration of the NPA acting as prosecutor and judge, when Mark Thatcher was convicted in terms of a plea and sentence agreement, the spokesman for the Scorpions, Makhosini Nkosi, told Reuters on January 31 2005 that they felt it unlikely they would win a conviction in court. What makes this statement by the NPA even more extraordinary is the fact that the same spokesman had previously said, when Thatcher was arrested, that there was a “watertight case” against him.

The effect of the agreement was that Thatcher was spared the humiliation of a full public trial, for the case had attracted worldwide interest.

So why did Zimmerman and Thatcher enter into the agreements if the prosecution itself considered that the cases would fail due to the lack of evidence? One can only speculate, but the probable reason was to bring their cases to an end as quickly as possible and with a minimum of further publicity: according to press reports, the agreement read that Zimmerman had “become traumatised as a result of his involvement and this has necessitated him seeking psychological help. The entire matter has deeply traumatised him and he is filled with remorse for what he has done.”

From Zimmerman’s and Thatcher’s points of view, it was probably preferable to creep out of the country as unobtrusively and quickly as possible rather than face even an abortive trial. Why Zimmerman pleaded guilty when the prospect was that there would be no trial at all, on the NPA’s own admission, is not clear.

References are often made to the system of “checks and balances” designed into the constitution, and the division of powers is an essential component of the system.

The executive arm of the state has no business deciding who is guilty of crime, and if the NPA continues to develop such powers, then it lays the basis of being used for political ends and worse: of developing its own.

The report by the public protector on the complaint by Zuma dealt with all this. Why has the NPA chosen to disregard his conclusions?

To the extent that the Zimmerman decision has a “restorative” quality, this would be bitterly challenged by those whose professional interests are in the welfare of this country’s children: the spokesperson for Childline expressed outrage, for example, but the matter was overridden by the NPA’s judgment on what was a suitable sentence.

There was strong criticism from several quarters including, most importantly, the South African Human Rights Commission, of the sentence imposed in February 19 on a Limpopo farmer, Marchel Nel. He was charged with murder and convicted of culpable homicide after he shot a child he claimed to have mistaken for a dog. He was fined R20000.

The conviction and sentence provoked widespread criticism, which the NPA brushed aside.

The chairman of the commission, Jody Kollapen, for example, said that at some levels courts were still not in touch with the value system of the constitution. “The right to life is a paramount right in the constitution, and when that right is taken, you expect the courts to deal effectively in the sentencing process with that.”

The NPA’s response was that the state was satisfied with the conviction and that it would not be appealing against the sentence, even though it had “brought a sense of shock to a section of the public”.

The director of public prosecutions, Sibongile Mzinyathi, said himself that the outcry by certain sections of the community was justified, but the deputy director dismissed the public reaction, saying that the protests were “race-related”.

“The race thing is real, it’s going to be with us for a long time, but the NPA will not make a routine of seeking justice in every lenient sentence in the country,” he said.

The NPA announced that it had refused to assist the family’s appeal against the sentence. No appeal is possible against the NPA’s decisions.

These words display a heartless and shocking insensitivity, especially as the dead child’s family were supported by a gale of criticism. However, such a conflict is inevitable as the NPA has apparently taken unto itself the power to attach a final, official, stamp of approval to a court’s verdict and sentence. What criteria does the NPA use to decide whether or not it will “seek justice” when sentences it itself agrees are lenient are imposed?

Is this a new, unpublished policy relating to the exercise by the NPA of its discretion? What makes the matter even more troubling is that its original decision had been to charge for murder, presumably on the basis of the very statements it now decided would support no more than culpable homicide.

This does not inspire confidence in the NPA’s use of its discretion.

Following the NPA’s comments, both the court and, more significantly, the NPA itself, were bitterly criticised by the Young Communist League. It is no defence of the NPA that this misguided attack was based on the same failure to understand the function of the prosecuting authority in SA’s constitutional democracy.

The NPA, however, had put the political points raised by the Young Communist League into a public debate in which the NPA ought not to have been involved. Accordingly, what the Young Communist League said must be noted with concern — not necessarily for its content, but for its context: is it proper to demand a party-political role for the NPA?

The NPA is purporting to exercise powers it lacks and should not have. Only an appeal court can rule whether a lower court’s conviction is right or wrong, and whether its sentence is appropriate or not. This is not new territory for the NPA and it cannot plead ignorance, following the public protector’s report on Zuma’s complaint.

The NPA is designed to be independent, and independent it must be for the safety of our democracy. It does not belong to any political party and must never serve any party- political purpose.

Misdirected though they are, the Young Communist League’s complaints are a significant warning that this is either not universally understood or not universally accepted.

The danger is that the NPA is developing a culture of disregard for the limitations on its role, exposing itself to be used for political purposes with the power to announce not merely on who should be prosecuted, but whether they are guilty or not, and to act accordingly.

Down this road lies a dangerous constitutional clash. It does not help to say that the cases noted above are slender reeds on which to build such an argument, for any case can develop major political overtones.

Moreover, there are overtly political matters on our national agenda that are difficult, contentious and provoke deep passions: they could swiftly become the fuel for a major constitutional catastrophe.

Thatcher’s case, for one, may well have involved a seldom noticed statute, but it was heavily loaded with political and, indeed, international implications in which the executive might have wished to influence outcomes for its own purposes.

Whether these anxieties are well-founded or not must be determined by a review of the operating culture of the NPA. This is urgent: the moment to do so is now, before a crisis develops that may be impossible to manage within our constitution.

· Bennun is an Honorary Research Associate in the Faculty of Law at the University of Cape Town.


 * From: http://www.businessday.co.za/articles/opinion.aspx?ID=BD4A451597**

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