Nitty-gritty+of+the+law,+Mervyn+Bennun,+B+Day



=Driven by emotion, critics neglect nitty-gritty of law=

Mervyn Bennun, Business Day, Johannesburg, 15 October 2007
A LOT has been said and written about what President Thabo Mbeki has said and done concerning the national director of public prosecutions. Much of it has been heavy on political invective, but light on the actual law.

Section 179 of the constitution establishes the National Prosecuting Authority (NPA), headed by the national director of public prosecutions. It says national legislation must be passed to ensure that the prosecuting authority “exercises its functions without fear, favour or prejudice”. With the concurrence of the justice minister, and after consulting the various directors of public prosecutions, the national director must determine prosecution policy to be observed in the prosecution process and publish this in directives. The national director may intervene in the prosecution process if these are not complied with, and may review a decision to prosecute or not to prosecute. The justice minister must exercise final responsibility over the prosecuting authority.

The National Prosecuting Authority Act was duly passed in 1998. The minister may ask the national director for information or a report about any case, matter or subject dealt with by the national director or a director; the reasons for decisions; and for information with regard to the prosecution policy and the policy directives. The national director must make annual reports to the minister, and must meet the minister when requested.

Section 35 makes the NPA accountable to Parliament in respect of its powers, functions and duties under this act, including decisions regarding the institution of prosecutions.

The directives are not statute law, but what they prescribe about the conduct of prosecutions is almost as important. It is disturbing that they do not appear on the NPA’s website and are not readily obtainable.

The first directives published define the role of the prosecutor, factors to be considered when evaluating evidence, and the need to consider the public interest and other criteria when considering whether to prosecute.

One passage must be noted: “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”. In other words, not every suspect will be prosecuted: “There is no rule in law which states that all the provable cases brought to the attention of the prosecuting authority must be prosecuted. On the contrary, any such rule would be too harsh and impose an impossible burden on the prosecutor and on a society interested in the fair administration of justice.”

Another set, issued in March 2002 following the enactment of section 105A of the Criminal Procedure Act, sets out how the law permitting plea and sentence agreements (plea bargains) is to be applied. One paragraph reads that the section “is to be utilised for those matters of some substance, the disposal of which will actually serve the purpose of decongesting or reducing the court rolls without sacrificing the demands of justice and/or the public interest”.

So is the NPA independent? Well, it depends on what one means by the word.

It appears in the constitution, but never where it deals with the NPA. In the NPA Act itself, it does not appear at all, but the constitutional requirement that the NPA must exercise its functions “without fear, favour or prejudice” is repeated in the act’s preamble.

The constitution uses the word in section 165 when establishing the courts, and in section 181 when establishing the six chapter nine institutions supporting constitutional democracy. These, and the courts, are also to be bound only by the constitution and the law, and are all enjoined to be impartial. All must exercise their powers and perform their functions without “fear, favour or prejudice”, but this phrase alone is used in the constitution and the NPA Act for the NPA.

Further, other organs of state must assist and protect the courts and the chapter nine institutions to ensure their independence, impartiality, dignity and effectiveness. No such provisions are made for the NPA.

The theory of SA’s constitutional democracy is the so-called “separation of powers”: the state’s powers are divided between the executive, legislative and judicial arms of government. The constitution and the NPA Act have located the NPA within the executive, which is headed by the president.

There is clearly a balance to be struck between the powers of the minister and the manner in which the NPA must be left free to do its duties “without fear, favour or prejudice”. For both the minister and the national director to do their jobs properly, they must negotiate their relationship with care.

On one hand, neither the minister nor the president can instruct the NPA to prosecute anyone or to abandon a prosecution. To that extent, the NPA is certainly “independent”.

However, if the minister considers that prosecutors have not applied their minds properly to their discretionary decisions in terms of the directives, or acted otherwise than “without fear, favour or prejudice”, they could take the matter to the courts to review these decisions. The directives are important, and this is why section 33 ensures that the minister must be kept informed about what the NPA is up to. The criminal justice system would be unworkable without such processes, for taking the decision to prosecute can be fraught with difficulties and implications. In every democracy that uses the accusatorial mode of criminal trial, it is inescapable that governments will have legitimate interests in prosecution policies and decisions.

The purpose of section 12 of the NPA Act is not to empower the president to decide whether the national director should be removed, but to create two procedures that enable Parliament to decide whether this should be done on the grounds of misconduct, continued ill-health, incapacity to carry out his or her duties of office efficiently, or because he is no longer a fit and proper person to hold office. One procedure enables Parliament alone to initiate matters and to request the president to remove the national director: and he must then do so.

The other empowers the president to suspend the national director provisionally, in which case an inquiry must be established to determine whether he is a fit and proper person to hold office. If, in the light of its report, the president removes the national director, then Parliament must be informed, giving reasons and any representations from the national director. Parliament must then decide whether the president should reinstate the national director.

The terms of reference set for the inquiry will govern what information is needed. If the president were to suspend the national director and, in advance of the inquiry, publish a statement of the circumstances that led to the conclusion that one should be conducted, the effect would be to anticipate what would have to be placed before the inquiry. Apart from looking undignified and vindictive, this would probably hamper its fairness and be prejudicial to the interests of the suspended national director. The legal processes involved are designed to ensure transparency, and are not served by impatience.

As neither the president nor the justice minister can decide whether anyone should or should not be prosecuted, suspending the national director has no effect on any current or contemplated prosecutions.

Should a judge conduct the inquiry? Judges preside over cases brought before the courts as a result of decisions to prosecute which have been taken by the NPA, headed by its national director. It does not seem to be appropriate for a judge to be put into the position of having to decide whether that person is a fit and proper one for such a position.

Whether a retired parliamentary speaker is an appropriate choice seems to depend on whether that person continues to be a glutton for punishment. All former speakers are inevitably going to have a political past, and unless they are for this reason all regarded as unsuitable, perhaps we do best by letting Frene Ginwala get on with the job.


 * Bennun is an honorary research associate in the faculty of law at UCT

1372 words