NPA+out+of+order,+Mervyn+Bennun,+Business+Day

Business Day, Johannesburg, 12 October 2006
=Has the NPA lost its way?=


 * Mervyn Bennun**

WHEN Judge Herbert Msimang ruled against a state request for a postponement of Jacob Zuma’s corruption trial, he said in his judgment that the case had “limped from one disaster to another”. This article is not about whether Zuma is guilty of fraud or not. It is about the state of the National Prosecuting Authority (NPA) and the conduct of its affairs. In every trade, profession and science there is a technical vocabulary expressing basic concepts. When people talk about the issues of the day, they may use the vocabulary of occupations other than their own and may feel wise and knowledgeable as they do so.

But there are dangers: references to “viruses” and “bacteria” without discriminating between them may be lethal, for some diseases are viral and some bacterial, and antibiotics are useless against viruses.

Journalists in particular must use words with the utmost care when describing what other professionals do, and carry the grave responsibility of not misleading their readers into thinking smugly that they understand what they are talking about over braais and dinner tables when they use words with glib confidence.

So it is with the science of law, which also has a vocabulary and concepts which must never be abused. To the lay person, it may be the boring pedantry of “lawyers’ law” to insist that one must understand and use correctly such phrases as “a prima facie case” and “the presumption of innocence”. However, the failure to do so can quickly imperil the legitimacy of the state itself.

On August 23 2003, Bulelani Ngcuka, then national director of public prosecutions, said: “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.”

Zuma lodged a complaint to the public protector, who reviewed the law relating to the duties of a prosecutor in SA. The public protector concluded that the statement by the national director “unjustifiably infringed upon Zuma’s constitutional right to human dignity and caused him to be improperly prejudiced”. These conclusions are of general application: the identity of the person about whom the national director made the statement, and whether or not that person is subsequently prosecuted, are irrelevant.

The public protector’s reasons are set out with clarity and are in accordance with fundamental principles of our criminal justice system. He said in his report: “In deciding whether or not to prosecute, the assessment made by the prosecutor should be whether there is sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution”. He explained that it is the exclusive task of the judge or magistrate to decide whether there is a prima facie case. This must be done on the basis of what the prosecutor brings to the court, after it has been heard and tested in cross-examination by the defence. If there is a prima facie case, then it means that there is a case for the accused to answer.

As the public protector said, “Should it be found that there is a prima facie case against the accused, it means that there is, in the absence of rebuttal by the accused, sufficient evidence for a reasonable person to convict him or her”.

The public protector explained that these conclusions were based on the constitution, legislation establishing the National Directorate of Public Prosecutions, and the policy statement which the act obliges the directorate to publish, setting out its duties; this document has to have the approval of the justice minister before it is laid before Parliament, and is open to the public to study.

His conclusions are the jurisprudential equivalent of an explanation of why it is so important to distinguish between a virus and a bacterium. Great a surprise as it may be to nonlawyers, it is wrong and dangerous to speak as Ngcuka did.

Like many other countries, SA uses what is technically known as an “accusatorial” style of criminal trial, in which the prosecution and the judge (or magistrate) have different roles which must be strictly separated. These are defined and set out in the constitution and in legislation.

The relevant policy directive issued by the NPA states: “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 countries with accusatorial systems, similar tests are used, sometimes explained in different words but all amounting to the same thing: it has been said, for example, that there should be a prosecution only if it is considered that there is a better than 50% chance of success; or that there is a better than even chance of a conviction; or that there is a realistic prospect of a conviction.

In SA, when a decision is taken to commence a prosecution, a public signal is given to the effect that the NPA considers there is a “reasonable prospect of a successful prosecution”.

This means something very different from “a prima facie case”, which has an exact meaning in law: it means that it has been decided by the trial court there is a case for the person on trial to answer. The public protector explained that the question of whether or not a prima facie case exists is a matter only for the court to decide. This is possible only after the prosecution evidence has been heard and has been subjected to cross- examination by the defence. This must include putting the accused’s defence to the prosecution’s witnesses for their comment. The court must then be satisfied that “a reasonable person might, in the absence of further contesting evidence by the accused, convict him/her of the crime he/she is being charged with”.

Obviously, when the prosecution decides to proceed against someone it must be because it considers that there is a reasonable prospect that it will be able to make out not merely a prima facie case against that person, but prove guilt beyond all reasonable doubt. However, as the public protector’s report makes clear, whether a prima facie case is actually established or not can only be decided by the trial court, and only after there has been an opportunity for the defence to challenge and to test the prosecution evidence in open court.

Accordingly the two tests — whether there is a “reasonable prospect of success”, and whether there is a “prima facie case” — relate to separate stages of the criminal process. They must never be confused and, because they serve different functions, the first must be used only by the prosecution and the second only by the trial court: it is not for the NPA to decide whether someone is “prima facie” guilty, and it is not for the judge to decide whether a prosecution should be commenced.

The public protector’s report is clear and meticulous; it is written in the measured and sober language of lawyers, examining law reports, statutes and the constitution — dull “lawyers’ law” which may perhaps bore the guests at braais and dinner tables, but stating matters fundamental to a democratic society which is subject to the rule of law.

On the other hand, Ngcuka was censured by Parliament for reacting to the report with intemperate and personal abuse directed at its author.

As the NPA’s former director has rejected the public protector’s conclusions, does the NPA still work on the basis that it can properly decide that someone is prima facie guilty but, because the case against that person is weak, it is better that there should be no prosecution as an acquittal for want of evidence would be a miscarriage of justice?

Judging by the constant and uncritical printed and broadcast repetition of Ngcuka’s improper words, the matter is of the highest public importance, and conceptions and misconceptions need to be clarified. It would be a jurisprudential obscenity if the NPA still sees its role and duty thus, with the most dreadful consequences for the legitimacy of the criminal justice system.

Further, at the heart of the matter is the careful separation of the powers and functions of state organs. Section 179 of the constitution makes it clear that the NPA must be independent, though the “cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority”.

It is not clear how the NPA sees itself today in relation to the cabinet: does it feel that it should involve the “responsible cabinet member” when it decides whether or not to commence a prosecution?

There were grave criticisms of the manner in which the national director of public prosecutions has conducted the affairs of the NPA, thoroughly documented and considered, in a judgment of the high court given in November 2005. It was found as an undisputed fact that in January 2003, an accused person (Tony Yengeni), the then justice minister (Penuell Maduna) and the then national director of public prosecutions (Ngcuka) met at the minister’s home in order to discuss Yengeni’s fraud trial. In the court’s words, at the meeting “Ngcuka indicated … that the state would abandon the main charge of corruption if the appellant would plead guilty to the alternative charge of fraud”. In due course Yengeni pleaded guilty and was sentenced to four years’ imprisonment. In the course of his appeal against the sentence it emerged that there was a dispute over what had been agreed at the meeting: did the national director agree to “see to it” that there would be a fine and no custodial sentence, as Yengeni claimed; or was the agreement merely to the effect that the prosecution would not urge the trial court to impose a custodial sentence?

The high court condemned the entire meeting of the three for the purpose of discussing the case as “unwise”. The judges said that it might create the impression that Yengeni was seeking the support of a politically powerful ally to influence the exercise of the national director’s discretion in his favour, on grounds that had more to do with political connectivity than with the merits of his case. The minister, the judges said, should not have participated in these discussions at all, “precisely because it might create the perception that he was exerting improper political pressure on the national director in taking a decision that was in his exclusive discretion”.

It is, however, the two stinging paragraphs about the conduct of the national director of public prosecutions that should be noted: “(I)t was indubitably ill-advised for the former national director of public prosecutions to be seen to participate in a discussion with the minister and the appellant. The independence of the office that he held, and the fearless and unfettered exercise of the extensive powers that this office confers, are incompatible with any hint or suggestion that he might have lent an ear to politicians who might wish to advance the best interests of a crony rather than the search for the truth and the proper functioning of the criminal and penal process. Unfortunately, the terms of the deal that was admittedly struck at this occasion do little to allay the perception that they were dictated by considerations other than the determination of an appropriate sentence for the crime the appellant would plead guilty to.”

The high court’s judgment includes eloquent and important comments on the separation of powers, and they are worth reading by all who would learn more of the South African constitution. However, it is disturbing that two of the highest officers of the state have been the subject of criticism by the courts and the public protector on the grounds that this fundamental constitutional principle was infringed.

The above comments must be placed in a broader context. Individual prosecutors and people speaking authoritatively on behalf of the NPA in SA have on occasions expressed satisfaction or disappointment over the results of trials. To the lay public, it may sound like further pedantry to protest at this, but in fact it is a matter which reflects an important misunderstanding of what prosecutors do. It is also highly relevant to the comments of the former director of the NPA, which the public protector found, correctly, to be improper, and to what the high court criticised in the Yengeni case.

A criminal prosecution is conceptually a very different matter from a civil trial. In civil disputes plaintiffs generally need to do no more than prove their cases on the balance of probabilities in order to succeed. The rules of procedure in civil litigation are thus designed to ensure that the parties are evenly balanced.

Criminal trials, however, are not sporting contests played on a level playing field: from the very outset, the prosecution plays uphill. The presumption of innocence, which can be rebutted only by proof of guilt beyond all reasonable doubt, is intended to ensure that this is so.

It follows that it is important that one should not think of “winning” or “losing” a prosecution in the same way as one might think of the outcome of civil litigation. If the prosecution makes public statements to the effect that it is “disappointed” with the outcome of a criminal trial then the implication is that in the view of the NPA the court has reached the wrong conclusion.

This is an immediate assault on the constitutional doctrine of the separation of powers. It is not for the prosecution to make or to act on an a priori conclusion about guilt or innocence, nor to express disappointment or satisfaction, triumph or frustration, nor any other subjective reaction which suggests that it has done so, or that it has any vested interest in securing a conviction, at the outcome of a criminal trial. Unlike civil litigants who most definitely do have such an interest in the proceedings in which they are involved, prosecutors in an accusatorial system working in the context of a human rights culture such as in SA are independent, and it is improper for them to proceed on the basis that they have a grievance against the accused.

Such comments are general evidence of an unsatisfactory institutional culture within the NPA: a culture that led the national director to think that it was proper to make a statement to the effect that a prosecution was “unwinnable” even though he claimed that the person involved was prima facie guilty, and to act in the manner condemned in the Yengeni prosecution.

In both cases, the national director’s conduct was a violation of the constitutional doctrine of the separation of powers, and so are such subjective public comments.

Msimang’s remarks poured petrol on what was already smouldering, and his are not the only judicial criticisms of the NPA. Even though the NPA might now consider itself to be bound by the decisions of the public protector and the high court, reasons now exist for disquiet generally over its life and work. Action, if found to be necessary, in the light of a transparent and authoritative review and report on the NPA is now essential. This is really the only suitable way to ensure that what it must do is of the quality that we must insist on.


 * Bennun is honorary research associate, Wilfred and Julius Kramer Law School, University of Cape Town.


 * From: http://www.businessday.co.za/articles/opinion.aspx?ID=BD4A288064**

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