Student No : 54794722

Names : MATIMATJATJI RE

Module Code : CPR 3701 Unique# 780219

QUESTION 1

Prosecutors often institute prosecution for the alleged crime as long as there is a
prima facie case and there is no compelling reason that prohibit prosecution.
However, there are case circumstances where prosecution may not be effected even
though a prima facie case exist at the presence of the prosecutor. In this case, the
prosecutor decides to prosecute or not to prosecute the accused for the alleged
committed crime. This means that the prosecutor is given a freedom of choice and of
action in matters relating to the prosecution of criminal offences that falls within his or
her authority. The prosecutor exercise this ‘right’ for a good reason, which serves the
interest of the justice for the benefit of the general public. The discretion to prosecute
or decline prosecution is seen as a very valuable safeguard because one has to take
into account what the consequences of the prosecution may be to the accused apart
from any the penalty which the court of law might inflict on that person. 1

The prosecutorial discretion may be exercised in different circumstances of criminal

offences, example; in cases where the accused age is a concern either because his
or her age is at an advanced level or the accused is a young child; where the
prosecutor and the defence negotiate a guilty plea or there is a tragic personal
circumstance of the accused e.g. a father who has through negligent driving caused
the death of his young child. 2 This exercise of discretion is governed by the principles
of criminal justice. This means that the prosecutor is guided by these principles in his
decision to prosecute or not to prosecute a case. These principles are important and
aims to achieve justice. The principles of criminal justice requires that police and
prosecuting authorities should not to knowingly allow a pattern of contravention of
certain statue to develop and then, most unexpectedly, arrest and prosecute. 3 It is
further required of the prosecution authorities not to apply a selective enforcement or

1
Criminal procedute handbook 12th ed 2017 juta cape town73
2
Criminal procedute handbook 12th ed 2017 juta cape town73.
3
Handbook 75

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non-enforcement of criminal law when they are exercising the prosecutorial
discretion.

Furthermore, statues, policies and directives govern the excising of prosecutorial

discretion. Persecutors in their decisions are responsible before the law and must act
within the confines of legality. According to paragraph 4 (c) of the prosecution Policy
which is issued in terms of s 21 of Act 32 of 1998 requires a compulsory prosecution
in circumstances where prima facie case exist, unless public interest demands
otherwise. In order to determine whether or not is in the public interest to prosecute,
the prosecutors look at factors such as: the nature and seriousness of the offence;
the interest of the victim and broader community and the circumstances of the
offender.4 The relevance of these factors and weight attached to them will depend
upon the particular circumstances of the each case.5

As it was discussed above, South Africa indeed does not have a system of
compulsory prosecution. Therefore prosecutor have powers to decide to prosecute
or not to prosecute. This excecise of decretion guve the prosecutor enoght power to
chose which cases to prosecute or not. This discetion creates the potential
prosecutorial misconduct as seen in cases of selective prosecution. Their personal
belief and biases can creep into their decisions.additionaly, plea bargaining places
the procecutor in an aufailry strong position. 6

4
Handbook 74
5
Handbook 74
6
Feinganun j r plea bargaining and prosecutorial discretion 713jstor

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ACADEMIC HONESTY DECLARATION

1. I understand what academic dishonesty entails and I am aware of Unisa’s policies

in this regard

2. I declare that this assignment is my own, original work. Where I have used
someone else’s work, I have indicated this by using the prescribed style of
referencing. Every contribution to, and quotation in this assignment from the wok or
works of other people has been referenced according to the prescribed style.

3. I have not allowed, and will not allow, anyone to copy my work with the intention
of passing it off as his or her own work.

4. I did not make use of another student’s work and submit it as my own.

NAME: RAMATSOBANE ELSIE MATIMATJATJI

SIGNATURE:

STUDENT NUMBER: 54794722

MODULE CODE: CPR3701

DATE: 28 AUGUST 2020

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