Chapter 1

THE PROSECUTOR:
CINDERELLA IN A BLACK GOWN1

The forgotten profession

The South African criminal justice system rests primarily on three pillars: the police, which is responsible for preventing and investigating crime, and apprehending suspected criminals; the prosecution service and the courts, which prosecute, convict and punish the accused who are found guilty of the crimes with which they have been charged; and the prison system, which carries out sentences imposed by the courts and seeks to rehabilitate the convicted criminals in its care.

Much attention is given to the almost 130 000-strong South African Police Service (SAPS). Their successes in cracking a drug-smuggling ring or arresting the kingpin in a vehicle-hijacking racket receive substantial media coverage. Their failures to make a breakthrough in an important case are equally well publicised. Popular films about sexy undercover detectives and courageous police officers single-handedly taking on the criminal underworld in the suburbs of Los Angeles or New York further serve to give the work of the police a particular allure.

In South Africa there is considerable interest in what judges and magistrates do. Sentences handed down by the country’s judicial officers are regularly scrutinised by the media, politicians and special interest advocacy groups. During the apartheid years careful attention was paid to the sentences imposed by judicial officers on black accused who were convicted of violent crimes committed against white people. These were then compared to the sentences imposed for similar offences where the race of the offender and victims was reversed. In the post-apartheid era, judicial officers’ sentences are again under scrutiny, this time to expose a different form of discrimination. Judicial officers are often accused of imposing unduly lenient sentences on — or being hesitant to convict — rapists, child molesters and men guilty of domestic violence.

While prison officials mainly operate outside of the public’s eye, a plethora of popular films and books abound about prisons and prison life. Robben Island, Pretoria’s maximum security C-Max prison, and Cape Town’s Pollsmoor prison are household names in South Africa. Most people — albeit it gleaned from novels such as Papillon, or the film Escape from Alcatraz — have a general idea of what goes on in a prison and what the main purposes are of prison.

Of all the important roleplayers in the criminal justice system, it is the prosecution service that remains an unknown entity among the public. Ask any child what he wants to become one day, and many will say a police officer, some will say a judge, or even a prison warden. Very few will dream of becoming a public prosecutor.

The media, politicians and the public rarely have an opinion about the performance of the prosecution service. The investigative skills of the police are praised or blamed if criminals are convicted or acquitted of the charges against them. Judges are condemned if criminals whose crimes are particularly offensive to public sensibilities are not punished harshly enough. The prison service is denounced when prisoners escape. It is seldom, however, that the work of the prosecution service is commented upon, let alone evaluated.

Yet, the prosecution service is a crucial link in the South African criminal justice system. A poorly performing prosecution service detrimentally affects the ability of the prison system to rehabilitate the prisoners in its care. If prosecutors process cases slowly, or do not apply their minds properly to a request of an accused person for bail, the number of awaiting trial prisoners increases. This causes overcrowding in the country’s prisons and makes it difficult for prison wardens to look after sentenced prisoners adequately and to rehabilitate them.

Moreover, if the prosecution service does not operate optimally, many guilty accused are acquitted of the charges against them. This lowers police morale, and fosters public perceptions that crime pays. It also leads to general disillusionment with the ability of the criminal justice system to fight crime effectively.

Role of the prosecutor

Given the crucial role of the prosecution service in the state’s fight against crime, it is time to ask what South Africa’s 2 500 or so prosecutors do. On the surface, prosecutors have a simple responsibility: to help the police gather evidence, present evidence in court, argue cases and secure convictions. In reality, it is not this simple and straightforward. Prosecutors are burdened daily with a multitude of tasks and responsibilities. According to a policy manual produced by the national prosecuting authority in South Africa:

"the prosecutor’s primary function is to assist the court in arriving at a just verdict and, in the event of a conviction, a fair sentence based upon the evidence presented. At the same time prosecutors represent the community in criminal trials. In this capacity they need to ensure that the interests of victims and witnesses are promoted, without negating their obligation to act in a balanced and honest manner."2

The pretrial stage

A prosecutor is usually alerted of a crime by the police. After a crime is reported to the police, an investigating officer or detective is assigned to the case who proceeds to investigate it. This typically involves taking a written statement from the complainant or crime victim, as well as statements from other witnesses to the crime. If necessary, the investigating officer is assisted by specialist colleagues in collecting any relevant forensic evidence (such as fingerprints or blood samples) with the purpose of either identifying a suspect or collecting evidence against someone who has been identified as a suspect. Once sufficient evidence has been collected against a suspect to make out a credible case against him, the investigating officer presents this information — in the form of a police docket containing all written statements and documents related to the accumulated forensic evidence — to a prosecutor. The prosecutor peruses the docket to establish whether there is sufficient evidence against the alleged suspect(s) to justify a prosecution.

A common alternative to the above scenario is where the police arrest a crime suspect before they had the opportunity to conduct any major investigations. This usually occurs where a criminal is arrested in the act of committing a crime (eg a burglar caught inside the burgled premises, or a drunk driver stopped at a roadblock), or where a serious crime has been committed and there is a risk that the suspect could disappear or tamper with evidence should he not be arrested immediately. Once the police have arrested and charged a suspect, they are obliged to bring the suspect before a court within 48 hours. When an arrested suspect appears in court, the prosecutor dealing with the case is given a police docket, which at this stage usually only contains the statement of the arresting officer. Whenever an arrested accused is brought to court for the first time, the court has to decide whether to release the accused on bail. It is the responsibility of the prosecution to oppose bail and to persuade the court (usually by leading or presenting evidence) why an accused should not be granted bail.3

Whichever of the above two scenarios occurs, once the prosecution is given a police docket on an accused, one of four things must happen:

The prosecution may ask the investigating officer to investigate the case further. This is a common request, especially in more intricate cases. To convict an accused of the crime(s) with which he has been charged, a prosecutor has to prove that all the elements of the crime are attributed to the accused beyond a reasonable doubt. For example, to convince a court to convict someone of murder, the prosecution has to prove beyond a reasonable doubt that the accused had the intention to kill the victim, that the accused acted unlawfully (ie that he did not, for example, act out of self-defence), and that the accused person’s actions were responsible for the death of the victim. On the basis of their legal training and courtroom experience, prosecutors generally know how much evidence they require to warrant the prosecution of a person. If such evidence is absent, it is their responsibility to guide the investigating officers on such cases to complete their investigations in order to fill in any potential gaps in the prosecution’s case.



The prosecution may decide that the evidence contained in the police docket is sufficient to warrant instituting a prosecution against a suspect. The decision to prosecute someone is taken with caution, however. Before the prosecution elects to prosecute a suspect, it must be satisfied that the case against the suspect has been thoroughly investigated and that a conviction is likely. Once an accused is acquitted of a charge leveled against him by the prosecution, such an accused can generally never again be prosecuted for the same offence even if more evidence should subsequently come to light which would have persuaded a court to convict the accused. The general test used by prosecutors to decide if they should prosecute a suspect is whether "there is sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution."4 This assessment can be a difficult one to make. The prosecution’s witnesses are often not as credible or honest in the witness box as they appear from their written statements or in interviews conducted with them by a prosecutor before the trial. Accused may also decline to make a statement to the police with the result that the prosecution is unaware of what defence they may put forward during the course of the trial. The kinds of questions prosecutors ask when deciding whether to institute a prosecution are: How strong is the case for the state? Will the state’s evidence be admissible? Will the evidence be reliable? Is the evidence available? How strong is the case for the defence?5



The prosecution may decline to prosecute and instead opt for pretrial diversion or some other non-criminal resolution for the accused. Pretrial diversion frequently happens in the case of juvenile accused who have committed relatively minor offences (and are first offenders), and who admit their wrongdoing. Prosecutors are permitted to decline to prosecute such accused on the condition that the latter, for example, perform community service or make some restitution to their victims. A prosecution may be reinstituted against such accused, however, if they break their part of the bargain by, for example, not completing the full duration of the community service that they committed themselves to. The prosecution may also decline to prosecute a suspect at the request of the complainant or victim. For example, where an accused assaults his drinking companion after a heated argument between them in a bar, the prosecution may decline to prosecute the accused at the request of the ‘victim’ who reconciled himself with his assailant after they had sobered up. Prosecutors must exercise special care, however, when a crime victim asks that charges are withdrawn in a situation where a victim is in a close relationship with an accused, especially in cases of domestic violence or child abuse.6 Prosecutors are also unlikely to decline to prosecute cases where the alleged offence is serious, such as attempted murder. For example, if the above example of a barroom assault had ended with the accused shooting and seriously injuring his victim, it is unlikely that a prosecutor will decline to pursue the case.



Finally, the prosecution may decline to prosecute without taking any action against a suspect. According to the policy manual of the national prosecuting authority, "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."7 In deciding whether to decline to prosecute someone, the prosecution needs to take three broad factors into account: the nature and seriousness of the offence, taking into account the effect of the crime on the victim, the manner in which it was committed, the motivation for the criminal act, and the relationship between the accused and the victim; the interests of the victim and the broader community; and the circumstances of the offender.8 For example, the prosecution is unlikely to prosecute a person who drives recklessly and overturns his car, and is paralysed as a result. No one else is injured, nor is any property other than the driver’s car damaged. In such a case the prosecution is likely to argue that, taking into account the driver’s injuries, he has been punished enough. The driver is also unlikely to commit the offence of reckless driving again as he cannot drive a vehicle due to his disability, and a court would be hard pressed to identify an appropriate sentence for the driver should he be convicted. Another example of where the prosecution is likely to decline to prosecute is where a vagrant trespasses by entering a disused warehouse belonging to the state. If a fine is imposed by a court on such an accused, it would not be paid (as the accused is penniless), while sending the accused to prison would not warrant the expense to the state, taking into account the minor nature of the offence.9

A former attorney-general of England, Sir Hartley Shawcross, ably summarised the reasons why a prosecutor may decline to institute a prosecution:

"It is the greatest nonsense to think that there must always be a prosecution because a case can be made out and you get a conviction. Sometimes there are reasons of public policy which make it undesirable to do so; perhaps the wrong-doer has already suffered enough; perhaps the prosecution would enable him to represent himself as a martyr or perhaps he is too ill to stand his trial without great risk to his health, even risk to his life. All that kind of thing enters into consideration … all of them leading to the final question: would a prosecution be in the public interest, including … the interests of justice."10

Prosecution authorities in the Anglo-American world enjoy virtually unfettered discretion whether to prosecute a person suspected of criminal conduct or not, and if prosecuted, with which offences and before which court. As a legal scholar has noted:

"this far-reaching power virtually to suspend or dispense with the country’s criminal law is not subject to judicial control; such sanctions as there are relate only to the force of public opinion and departmental disciplinary proceedings."11

The discretion of the prosecution in South Africa whether to institute a prosecution or not is called the ‘principle of opportunity’ in the language of jurisprudence. The principle of opportunity stands in contrast to the ‘principle of legality’ or the ‘principle of compulsory prosecution’, common to many European continental legal systems where the prosecution is obliged to institute a prosecution if there is sufficient reason to believe that an offence had been committed. In these systems, the prosecution has no discretion. If the facts are sufficient to lead the prosecution to believe that a crime was committed, a prosecution must be instituted.12

The trial stage

Once the police charge a suspect (who consequently becomes an ‘accused’) and the prosecution decides to institute a prosecution, the case proceeds to trial. Before the trial starts, the prosecution must formulate a formal charge against the accused providing some details on the particulars of the alleged offence.13 If requested to do so by the accused or his legal representative, the prosecution has to make most of the information contained in the police docket — such as witness statements and forensic reports — available to them.14 There is no right of mutual disclosure in South Africa. As a result, the prosecution does not have access to statements or documents held by the defence, and therefore does not know what defence an accused may aver, what witnesses he may call, and what other evidence he may present in his defence, until after the trial has commenced.

A trial starts with the prosecutor putting the charge to the accused. In more serious and intricate cases, the prosecutor may also provide some additional details on the circumstances surrounding the commission of the offence. The accused, and if he is represented with the assistance of his legal representative, then pleads to the charge. If the plea is one of not guilty, the matter proceeds to trial. After pleading not guilty, an accused may indicate the basis of his defence to the court. However, an accused may also place everything contained in the charge against him in dispute. Alternatively, an accused may elect not to disclose the basis of his defence and remain silent. Whichever of the last two courses of action is chosen by an accused, this places a burden on the prosecution to prove all the elements of the alleged offence against the accused.

The trial then proceeds with the prosecutor presenting evidence. Evidence can be in the form of, for example, documents or photographs, and the testimony of state witnesses. Witnesses typically include the victim (unless it is a murder trial), any other persons who witnessed the offence in progress, the arresting officer and forensic experts. The prosecutor guides the witnesses through their testimony to ensure that they do not omit anything crucial to the state’s case in proving the guilt of the accused. After each witness has testified, the accused or his legal representative may cross-examine them. The purpose of cross-examination is to show that a witness is not telling the truth or is mistaken, or that the testimony of a witness is in some other way not credible or reliable (eg that a witness suffering from Parkinson’s disease cannot be relied upon to have a trustworthy recollection of the events at the crime scene). Where appropriate, the defence must inform state witnesses of the defence of the accused to give them the opportunity to comment on it. It is often only at this stage of the trial that the prosecution learns of the basis of the accused person’s defence.

After the prosecution has presented the state’s evidence and called its witnesses, and they have been cross-examined by the defence, the state formally closes its case. Once the state has closed its case, it generally cannot call more witnesses or present new evidence to the court. It is then the turn of the defence to present its evidence and call its witnesses with the aim of showing that the accused is innocent or that the state’s allegations are not reasonably possibly true. The prosecution may cross-examine any witness — including the accused — who testifies for the defence.

At the end of this process, the prosecution has the opportunity to address the court and give reasons why the accused should be found guilty. In longer trials, the prosecutor would go through some of the more important evidence given by the state witnesses and argue why their testimony should be believed above that given by the accused and his witnesses. The accused or his legal representative is granted the same opportunity — to persuade the court why the accused should not be convicted. It needs to be borne in mind that the onus is on the prosecution to prove its case — which has to cover all the elements of the offence — beyond a reasonable doubt. If the prosecution fails to do so the court is obliged to acquit the accused. The court does not need to believe an accused person’s defence to acquit him. In fact, to be found not guilty, the accused merely has to show that his version of events is ‘reasonably possibly true’.

Prosecutors in South Africa work in an adversarial context. This is common in many countries where the Anglo-American legal system of common law predominates. In an adversarial trial, the opposing sides (ie the prosecution and the defence) present evidence, examine witnesses and conduct cross-examinations, each in an effort to produce information beneficial to its side of the case.15 The judicial officer acts as a moderator or referee, rarely taking part in the questioning unless he feels that important points of law or fact must be enlightened. Nevertheless, prosecutors whose primary function is "to assist the court to arrive at a just verdict, and not simply to secure a conviction at all cost,"16 must present the facts of a case fairly to a court. "They should disclose information favourable to the defence (even though it may be adverse to the prosecution’s case) and, where necessary, assist in putting the version of an unrepresented accused before court."17 As one attorney-general put it:

"It is not the function of the prosecutor to secure a conviction. His clear and solemn duty is to see that justice is done and that can only be done if you place before the court fairly and fully all the facts, not only those that are against an accused person, but also those which are in his favour."18

The sentencing stage

After an accused has been convicted, the prosecution may address the court on the kind of sentence the state would like the accused to receive. The accused or his legal representative may do likewise. A judicial officer, who has a wide range of sentencing options to choose from, is not obliged to take heed of the suggestions for sentencing made by either the prosecution or the defence.19

In cases involving crimes of a serious nature, including violent crimes and sexual offences against women and children, the prosecution is supposed to lead evidence and, where necessary, expert evidence relating to, among others, the impact of the crime on the victim and the community, statistics regarding the frequency and relative seriousness of the offence, and any relevant previous convictions the accused may have.20

Categories of prosecutors

The role of the prosecutor as described above is a generalisation. Space does not permit a detailed catalogue of prosecutorial functions, nor is this necessary for the reader to understand the remainder of this monograph. The courtroom activities of prosecutors have been emphasised as most prosecutors spend the bulk of their time there. It needs to be stressed, however, that prosecutors — especially those in senior positions — spend much of their time on managerial and administrative functions. Prosecutors dealing with serious and intricate cases also spend a considerable amount of time outside court perusing lengthy police dockets, consulting with state witnesses and assisting investigating officers in their investigations. Moreover, since 1998, certain prosecutors have become directly involved in police investigations.

‘Prosecutor’ is a generic title for any person who may represent the state in a court to prosecute those charged with a crime, or to conduct criminal appeals for the state. In South Africa, there are different levels of prosecutors with different powers and functions (diagram 1).

At the head of the national prosecuting authority is the national director of public prosecutions, assisted by up to four deputy national directors of public prosecutions. Below them are a number of directors of public prosecutions whose jurisdiction is restricted to the geographic area where they have been appointed. There is one director of public prosecutions for each of the 10 divisions of the high court of South Africa, and one for the Witwatersrand local division of the high court. Investigating directors are directors of public prosecutions who head an investigating directorate (of which there may not be more than four) whose jurisdiction extends across the whole country. They are subject to the control and directions of the national director of public prosecutions. Special directors are directors of public prosecutions who have certain powers, functions and duties as assigned to them by the president, but subject to the control of the national director of public prosecutions. Directors of public prosecutions, investigating directors and special directors are assisted by deputy directors of public prosecutions, as well as senior and junior state advocates who have a right of appearance in the high court.

Over 95% of all criminal trials take place in the magistrate’s courts (also known as the lower courts). There are two types of magistrate’s courts: regional and district courts. The former are staffed by regional court prosecutors and regional court magistrates, the latter by district court prosecutors and magistrates. Chief prosecutors manage and oversee clusters of magistrate’s courts and report to the director of public prosecutions for their area of responsibility, or to senior staff in the office of the national director of public prosecutions. The prosecutorial staff at larger magistrate’s courts are managed by a senior public prosecutor. At busy magistrate’s courts, senior public prosecutors may delegate some of their managerial and administrative duties and responsibilities to control prosecutors.

Only the most serious crimes such as brutal murders, particularly violent rapes, robbery with aggravating circumstances where someone is seriously injured or killed, and fraud involving large amounts of money are usually prosecuted in the high court. The vast majority of murders, rapes and robberies, and crimes such as attempted murder, child abuse, kidnapping, sexual offences, housebreaking where the intention is not only to trespass, fraud and theft where the loss exceeds R40 000, and car theft are prosecuted in the regional court.21 More minor offences such as assault, most forms of theft and fraud, malicious injury to property, most drug-related offences, drunk driving offences, and other driving-related offences are prosecuted in the district court. Unless legislation provides otherwise, regional courts have the jurisdiction to impose a maximum period of imprisonment of 15 years (and a fine of up to R300 000), while district courts have the jurisdiction to impose a maximum period of imprisonment of three years (and a fine of R60 000).22 There is no sentencing limit for the high court.