IURI 271: SU 5 NOTES

PREPARED BY PROF PIETER DU TOIT

NORTH-WEST UNIVERSITY
 5 Public and private prosecutions

5.1 Public prosecutions

The national prosecuting authority (NPA)

 Section 179 of the Constitution provides for the establishment of a single national prosecuting
authority (NPA).

The cabinet minister responsible for the administration of justice (the Minister of Justice) must exercise
final responsibility over the prosecuting authority. Although the Minister of Justice exercises final
political responsibility over the NPA, he/ she may not interfere with decisions to prosecute or not to
prosecute. He/ she is, however, entitled to be kept informed where public interest or an important aspect
of legal and prosecutorial authority is involved (see NDPP v Zuma 2009 (2) SA 277 (SCA)). All
matters concerning the prosecuting authority must be determined by national legislation. The National
Prosecuting Authority Act 32 of 1998 (NPA Act) was adopted in response to this constitutional
demand. This Act regulates the appointment, powers and remuneration of members of the prosecuting
authority.

The prosecuting authority comprises the following.

• National Director of Public Prosecutions (NDPP);
• Deputy National Directors of Public Prosecutions (DNDPPs);
• Directors of Public Prosecutions (DPPs) (at the different seats of the High Courts);
• Deputy Directors of Public Prosecutions (DDPPs); and
• prosecutors (s 4 NPA Act).

The powers and duties of each of these officials are set out in the NPA Act. A prosecutor in a lower
court exercises the powers, carries out the duties and performs the functions conferred or imposed on
or assigned to him/ her under the control of the DPP in whose area of jurisdiction such court is situated,
or a person designated by such DPP (s 25(1)(c) NPA Act).

The President may, by proclamation in the Gazette, establish one or more Investigating Directorates in
the Office of the National Director in respect of such offences or criminal or unlawful activities as set
out in the proclamation (s 7 NPA Act). Such a Directorate was set up in 2019 to investigate and
prosecute so-called “state capture” cases.
 • The website of the NPA can be accessed here.
• The prosecution policy can be accessed here.

The NPA Act also provides for the appointment of “outside” legal practitioners, for instance a private
practitioner to prosecute specific cases, subject to a number of conditions (see in this regard Moussa v
S 2015 (2) SACR 537 (SCA); Porritt v NDPP 2015 (1) SACR 533 (SCA); Delport v S 2015 (1)
SACR 620 (SCA)).

The prosecution as dominus litis

The state is dominus litis (master of the cause). The content of this was summarised as follows in S v
Sehoole 2015 (2) SACR 196 (SCA):

[10] The State has a discretion regarding prosecution and pre-trial procedures. For instance, the
State may decide … whether or not to institute a prosecution; on what charges to prosecute; in
which court or forum [court] to prosecute, when to withdraw charges and so forth. The State can
elect to charge a person with a less serious offence.

Ordinarily, courts may not interfere with the prosecutor's discretion unless there are truly exceptional
circumstances for doing so (Seehole case at para [12]. Also see Phika v S 2018 (1) SACR 392 (GJ)).
A magistrate or judge may, for instance, not insist that a prosecutor must charge the accused with a
more serious offence.

In S v Khalema 2008 (1) SACR 165 (C) at para [22] the court, with reference to section 75 CPA, held
that “the prosecutor […] is the party who dictates the route a case will take towards being finalised. It
is the prosecutor who makes the decision. Absent this decision by the prosecutor the magistrate in the
district court cannot transfer a matter out of her court to a higher court ”.

The discretion to prosecute

The prosecution policy provides detailed guidance on the manner in which prosecutorial discretion must
be exercised. The process of establishing whether or not to prosecute usually starts when the police
presents a docket to the prosecutor.
• The prosecutor must consider whether to request the police to investigate the case further;
institute a prosecution; enter into a plea or sentence agreement; decline to prosecute and opt for
pre-trial diversion or other non-criminal resolution; or decline to prosecute without taking any
other action.
• The decision as to whether or not to prosecute must be taken with care, because it may have
profound consequences for victims, witnesses, accused persons and their families. A wrong
 decision may also undermine the community’s confidence in the prosecution system and the
criminal justice system as a whole.
• Although the prosecutor may consider the views of the complainant/ victim in exercising the
discretion as to whether or not to prosecute, the ultimate decision remains that of the prosecutor
and he/ she is not bound by the wishes of the complainant/ victim.
• In deciding as to whether or not to institute criminal proceedings against an accused person,
prosecutors must 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 this
regard, prosecutors must consider issues such the strength of the case for the state, the
availability of witnesses and the reliability and admissibility of the evidence.
• Once a prosecutor is satisfied that there is sufficient evidence to provide a reasonable prospect
of a conviction, a prosecution should normally follow, unless public interest demands otherwise
(see Prosecution Policy on NPA’s website).
• In S v Lubaxa (372/ 2000) [2001] ZASCA 100; [2002] 2 All SA 107 (A) it was held:
Clearly a person ought not to be prosecuted in the absence of a minimum of evidence
upon which he might be convicted, merely in the expectation that at some stage he might
incriminate himself. That is recognised by the common law principle that there should
be “reasonable and probable” cause to believe that the accused is guilty of an offence
before a prosecution is initiated (Beckenstrater v Rottcher and Theunissen 1955(1) SA
129 (A) at 135C-E), and the constitutional protection afforded to dignity and personal
freedom (s 10 and s 12) seems to reinforce it.

A malicious prosecution may lead to a civil claim for damages against the NPA (Khumalo v Minister
of Police 2021 (1) SACR 551 (WCC); Minister for Justice and Constitutional Development v
Moleko 2009 (2) SACR 585 (SCA)).

The withdrawal of a case and the stopping of a prosecution

A charge may be withdrawn for various reasons, for instance at the request of the complainant (and the
prosecutor agrees thereto), because further investigation is required before the matter is enrolled again,
or because the court refused a further postponement at the request of the state. In terms of section 6(a)
of the CPA a prosecutor may, before an accused pleads to the charge, withdraw that charge. The
accused is not entitled to a verdict of acquittal in respect of that charge and may therefore be charged
again at a later stage. Once an accused has pleaded, he/ she is entitled to a verdict of guilty or not guilty.
The withdrawal of the charge will not be an appropriate step to take (S v Masilo (15/ 2016) [2016]
ZAFSHC 23 (11 February 2016)).

In terms of section 6(b) of the CPA, a prosecutor may at any time after an accused has pleaded, but
before conviction, stop the prosecution in respect of that charge, in which event the court trying the
accused must acquit him/ her in respect of the charge. Such a prosecution may, however, only be
stopped upon the authorisation of the DPP or a person who is authorised by the DPP to do so. If such
an accused is again charged at a later stage, he/ she will be able to successfully raise the plea that he
has been previously acquitted of the charge. The failure to obtain the necessary authorisation from the
DPP will not constitute a lawful stay of the prosecution. Where, after the accused has pleaded to the
charge, the prosecutor closes the state’s case without calling any witnesses, it does not amount to the
stay of a prosecution (S v Gouws 2008 (2) SACR 640 (T)). The stay of a prosecution at the instance
of the state should not be confused with the power of the court to order a permanent stay of the
prosecution due to an undue delay affecting the accused’s fundamental rights. This matter is dealt with
under the accused’s right to a trial without an unreasonable delay.

The main differences between a withdrawal and the stay of a prosecution are depicted in the table below.

Withdrawal in terms of section 6(a) CPA
• A case may be withdrawn by the
prosecutor at any time before the
accused pleads to the charge.
• No DPP authorisation is needed. In
practise the prosecutor will obtain the
DPPs permission in cases where the
DPP had instructed the prosecution to
be instituted.
• The prosecution may be reinstated at
any time, subject to the powers of a
court in respect of undue delays in
prosecution as discussed in Chapter 6
below. The accused would not be able
to plea that he/ she was acquitted
before.
Stopping in terms of section 6(b) CPA
• Proceedings may be stopped at any time
after the accused has pleaded to the
charge, but it must be before conviction.
• The proceedings may only be stopped
with the authorisation of the relevant
DPP.
• If the prosecution is stopped, the court
must discharge the accused. The
accused may not be prosecuted for an
offence based on the same facts. He
would be able to successfully plea
“autrefois acquit”/ previous acquittal
should he/ she be prosecuted anew.

The reconsideration/ review of the decision to prosecute/ not to prosecute

It regularly happens that persons are dissatisfied with a decision to prosecute or not to prosecute. Such
a person may make representations to the relevant senior prosecutor/ chief prosecutor or DPP. The
NDPP may also review the decision to prosecute or not to prosecute - see in this regard the discussion
on section 179 of the Constitution above. Also see the directives of the NPA in relation to
representations.

In addition, a High Court may upon application review and set aside the decision of the prosecuting
authority. Both the decision to prosecute and not to prosecute are subject to review. As the prosecutor
is dominus litis, the courts will not lightly interfere with these decisions. The doctrine of separation of
powers precludes the courts from impermissibly assuming the functions of the NPA. Courts will only
interfere on rare occasions and for compelling reasons. These reviews are limited to grounds of legality,
in other words, non-compliance with a legal prescript, and rationality, that is, no reasonable person
could have taken the decision based on the facts before him or her (DA v Acting NDPP 2012 (3) SA
486 (SCA); NDPP v Freedom Under Law 2014 (2) SACR 107 (SCA); Zuma v DA (771/2016);
ANDPP v DA (1170/2016) [2017] ZASCA 146 (13 October 2017). A prosecution is not wrongful
merely because it is brought for an improper purpose such as political pressure. It would only be
wrongful if, in addition, reasonable and probable grounds of prosecuting were absent (NDPP v Zuma
2009 (2) SA 277 (SCA)).

Overview of prosecutorial responsibilities

In Doorewaard v S 2021 (1) SACR 235 (SCA), Ponnan JA said that “prosecutors play a critical role
in our criminal justice system”. A prosecutor’s function is not merely to have the matter placed on the
roll, for it then to be simply postponed for further investigation. A prosecutor must pay attention to the
contents of the police docket. A prosecutor must act with objectivity and protect the public interest
(Minister of Police v Du Plessis 2014 (1) SACR 217 (SCA)).

The duty of prosecutors is not to secure a conviction at all costs or defend convictions on appeal, once
obtained. Their duty is to see that justice is done. The prosecution must present all the facts in an
objective and fair manner so as to place the court in a position to arrive at the truth (Macrae v S 2014
(2) SACR 215 (SCA)). In Doorewaard (above at para [81]) it was also held as follows:

The prosecutor must provide proof of the accusation made. To that end, the prosecutor must
place before a court credible evidence in support of the alleged crime. It is for a prosecutor to
evaluate the conduct of the police and the strength of the State’s case that will be actively
presented to a court. It is not the function of a prosecutor ‘disinterestedly to place a hotchpotch
of contradictory evidence before a court, and then [to] leave the court to make of it what it will.

In Van der Westhuizen v S 2011 (2) SACR 26 (SCA), the court referred to prosecutors’ duties in terms
of the Constitution, international instruments and the Code of Conduct of Prosecutors. Prosecutorial
discretion to institute and stop criminal proceedings should be exercised independently, in accordance
with the Prosecution Policy and the Policy Directives, and be free from political, public and judicial
interference. Prosecutors should perform their duties without fear, favour or prejudice. The court held
as follows around this:

[12] Where an accused is represented, it is not the function of a prosecutor, …. to call evidence
which is destructive of the State case or which advances the case of the accused. The prosecutor
is not obliged to play chess against him ─ or herself.

[13] It is … within the discretion of the prosecutor to decide which witnesses to call as part of
the State case. The duty of the prosecutor 'to see that all available legal proof of the facts is
presented', … is discharged by making the evidence (and not only the witnesses subpoenaed by
the State) available to the accused's legal representatives.
….
 … [I]t is not necessarily sufficient for the prosecutor to tender State witnesses to the defence at
the end of the State case, nor does the prosecutor necessarily discharge the duty of disclosure by
making available the contents of the dossier: if there is evidence which the prosecutor knows or
ought reasonably to suspect is or may be destructive of the State case, or which tends or might
tend to support the defence case, and which the prosecutor knows or ought reasonably to suspect
is not known to the defence, it is the prosecutor's duty to bring this evidence specifically to the
attention of the accused's legal representatives. It would therefore, for example, not be necessary
for a prosecutor to draw attention to a specific witness's statement favourable to the accused in
the dossier made available to the defence, for he who runs may read; but the prosecutor would
be obliged to inform the defence that a particular witness, who has not given a statement, might
to the defence's advantage be consulted and why, and also to assist, where necessary, in making
such a witness available; and the prosecutor would also be obliged to furnish the defence with a
document which is not in the dossier, which favours the accused's case or which is destructive of
the State case, which the prosecutor believes or ought reasonably to believe is not in the
possession of the defence. But the prosecutor's obligation is not to put the information before the
court.

In Porritt v NDPP 2015 (1) SACR 533 (SCA), the court distinguished between the role of the court
and that of the prosecutor. The court held as follows:

[11] There is a fundamental difference between the role and functions of a prosecutor as
opposed to those of a magistrate or a judge. The judiciary is held to the highest standards of
independence and impartiality because they are the decision-makers in an adversarial
judicial system. Prosecutors neither make the final decision on whether to acquit or convict,
nor on whether evidence is admissible or not. Their function is to place before a court what
the prosecution considers to be credible evidence relevant to what is alleged to be a crime.
Their role excludes any notion of winning or losing. It is to be efficiently performed with an
ingrained sense of dignity, the seriousness and the justness of judicial proceedings.
….
[13] The principles that govern prosecutorial conduct must therefore be seen and understood
in the context of the role that prosecutors play. In adversarial criminal proceedings such as
ours, it is inevitable that prosecutors will be partisan. They conduct the case for one of the
two sides in a trial, namely the State, as representing the citizenry. They often carry out their
prosecutorial functions vigorously and zealously. A prosecutor’s role in a criminal
prosecution therefore makes it inevitable that he or she would be perceived to be
biased. Prosecutors usually approach criminal prosecutions with a view, sometimes a very
strong view, that accused persons are guilty. That is permissible, subject to the caveat that
they must not prosecute in single-minded pursuit of a conviction. They have a duty towards
the accused to ensure that an innocent person is not convicted. In this regard, they have a
duty to disclose, in certain circumstances, facts harmful to their own case.

In a bail application, the prosecutor must place all relevant material that has a bearing on the issue
of bail before the court (Carmichele v Minister of Safety and Security (Centre for Applied Legal
Studies Intervening) 2001 (4) SA 938 (CC); Minister of Justice and Constitutional Development
v X 2015 (1) SACR 187 (SCA)).
 5.2 Private prosecutions

Private prosecutions upon a nolle prosequi certificate

The Criminal Procedure Act provides for the institution of private prosecutions in limited
circumstances. It must be emphasized that a private prosecution remains a criminal case and is not
similar in nature to civil litigation. Private prosecutions are, however, not instituted by the state, but by
private individuals. Section 7 of the CPA provides only for specific categories of persons that may
institute private prosecutions. Only private persons may institute a private prosecution in terms of
section 7 of the CPA (National Society for the Prevention of Cruelty to Animals v Minister of
Justice and Constitutional Development (20781/ 2014) [2015] ZASCA 206). Sections 9-17 of the
CPA contain detailed provisions regarding all procedural matters in respect of private prosecutions, and
these must be studied.

In terms of section 7(1) CPA, the following categories of persons may instate a private prosecution:

• any private person who proves some substantial and peculiar interest in the issue of the trial
arising out of some injury which he/ she individually suffered in consequence of the
commission of the said offence;
• a husband, if the said offence was committed in respect of his wife;
• the wife or child or, if there is no wife or child, any of the next of kin of any deceased person,
if the death of such person is alleged to have been caused by the said offence; or
• the legal guardian or curator of a minor or lunatic, if the said offence was committed against
his/ her ward.
The main features of a private prosecution (as regulated by ss 7-16 CPA) are:

• A private prosecutor must be able to produce a nolle prosequi certificate (meaning “declining
to prosecute”). This is a certificate signed by the DPP stating that he/ she has seen the statements
or affidavits on which the charge is based and that he/ she declines to prosecute at the instance
of the state.
• The DPP must when, he/ she declines to prosecute, grant the nolle prosequi certificate at the
request of the person intending to prosecute privately. This obligation will only arise if a person
indeed has locus standi in terms of section 7(1). Should the DPP fail to do so, the person may
apply to a high court for a mandamus to order the DPP to make a decision/ issue the certificate,
as the case may be.
• The certificate lapses unless the private prosecution is instituted within three months of the date
of the certificate.
• The private prosecutor must provide security (currently R2 500.00) that he/ she will prosecute
the charge against the accused without undue delay. The money must be paid at the clerk of the
magistrate’s court. Where the private prosecutor fails to prosecute the charge without undue
delay, or where the charge is dismissed, the money is forfeited to the state.
• The court may require form the private prosecutor to provide security for the costs that may be
incurred in respect of the accused’s defence to the accused. The accused may, when he is called
upon to plead to the charge, apply to the court to review the amount determined, whereupon the
court may, before the accused pleads, require the private prosecutor to deposit such additional
amount as the court may determine, or direct that the private prosecutor enter into a
recognisance, with or without sureties, in such additional amount as the court may determine.
• A private prosecution must be instituted and conducted and all process in connection with it
issued in the name of the private prosecutor.
• The indictment, charge-sheet or summons must describe the private prosecutor with certainty
and precision and must, except in the case of a body referred to in section 8, be signed by such
prosecutor or his/ her legal representative.
• If the private prosecutor does not appear on the day set down for the appearance of the accused
in the magistrate’s court or for the trial of the accused, the charge against the accused must be
dismissed, unless the court has reason to believe that the private prosecutor was prevented from
being present by circumstances beyond his/ her control, in which event the court may adjourn
the case to a later date.
• Where the charge is so dismissed, the accused is discharged from custody and may not, in
respect of that charge, be prosecuted privately again. The DPP (or prosecutor with the DPP’s
consent), however, may at the instance of the state prosecute the accused.
• A private prosecution must be conducted in the same manner as if it were a prosecution at the
instance of the state. A private prosecution may be brought before the court only by way of
summons in the case of a lower court, or an indictment in the case of a superior court, except
where the accused is under arrest in respect of an offence with regard to which a right of private
prosecution is vested in any body or person under section 8.
• Where the prosecution is instituted under section 7(1) and the accused pleads guilty to the
charge, the prosecution must be continued or taken over at the instance of the state.
• A DPP or a local public prosecutor acting on the instructions of the DPP may apply by motion
to the court before which the private prosecution is pending to stop all further proceedings in
the case in order that a prosecution for the offence in question may be instituted or, as the case
may be, continued at the instance of the state. If such an application is made, the court must
make an order accordingly.
• A private prosecutor other than a prosecutor contemplated in section 8 must, in respect of any
process relating to the private prosecution, pay to the clerk or, as the case may be, the registrar
of the court in question, the fees prescribed under the rules of court for the service or execution
of such process, for example the fees of the sheriff of the court to serve the summons.
• The private prosecutor must pay the costs and expenses of a private prosecution.
 • The court may, however, order a person convicted upon a private prosecution to pay the costs
and expenses of the prosecution, excluding a private prosecution instituted and conducted under
section 8.
• Where a private prosecution is instituted after the grant of a nolle prosequi certificate by a DPP
and the accused is convicted, the court may order the costs and expenses of the private
prosecution, including the costs of an appeal arising from such prosecution, to be paid by the
state.
• Where, in a private prosecution other than a prosecution contemplated in section 8, the charge
against the accused is dismissed or the accused is acquitted or a decision in favour of the
accused is given on appeal, the court dismissing the charge or acquitting the accused or deciding
in favour of the accused on appeal may order the private prosecutor to pay to such accused the
whole or any part of the costs and expenses incurred in connection with the prosecution or, as
the case may be, the appeal.
• Where the court is of the opinion that a private prosecution was unfounded and vexatious, it
shall award to the accused at his/ her request such costs and expenses incurred in connection
with the prosecution, as it may deem fit.
Private prosecutions under a statutory right
Section 8 of the CPA provides for private prosecutions under the statutory right. An Act of parliament
may specifically grant a body or a person the right to prosecute in respect of specific offences. Such
prosecutions remain under the control of the relevant DPP. Section 112 of the Local Government:
Municipal Systems Act 32 of 2000, for instance, provides for a staff member of a municipality so
authorised in terms of section 22(8)(b) of the NPA Act to conduct prosecutions, institute criminal
proceedings and conduct the prosecution in respect of a contravention of or failure to comply with a
provision of the following: (a) a by-law or regulation of the municipality; (b) other legislation
administered by the municipality; or (c) other legislation as the NDPP may determine. Another example
is found in section 33(1) of the National Environmental Management Act 107 of 1998, which provides
private prosecutions (a) in the public interest or (b) in the interest of the protection of the environment
in certain specified cases.

In National Society for the Prevention of Cruelty to Animals v Minister of Justice and
Constitutional Development [2016] ZACC 46, the Constitutional Court held that the NSPCA’s power
to “institute legal proceedings” as provided for in its empowering legislation, that is, Societies for the
Prevention of Cruelty to Animals Act, includes the power to privately prosecute. The court held that
the NSPCA’s power to institute legal proceedings cannot be divorced from its functions, which are
intrinsically connected to protecting animal welfare and preventing associated offences. The court held
that, because the NSPCA is explicitly charged with upholding a number of statutes regulating animal
welfare and preventing animal cruelty, the SPCA Act must be understood as incorporating private
prosecutions of animal cruelty.

Prescription of the right to prosecute

 Section 18 of the CPA.

S v Cornick [2007] 2 All SA 447 (SCA) is a rape case successfully prosecuted 19 years after the
incident. S v Hewitt 2017 (1) SACR 309 (SCA) relates to the successful prosecution for sexual
offences three decades after the incidents. A court may, however, order the permanent stay of a
prosecution in exceptional circumstances even before the prescription period has expired. This is an
extraordinary remedy and will be discussed under the right to a trial without unreasonable delay (see
chapter 6.5 below). Prescription in criminal cases should not be confused with prescription in civil
cases.