Chapter 2

THE FIGHT FOR INDEPENDENCE:
HISTORY OF THE PROSECUTION SERVICE

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English roots

In the English legal tradition — from where the term attorney-general emanates — the position of a prosecutor for the crown is centuries old. During the 13th century, the English monarch began to realise that he had an interest in the prosecution of certain crimes and appointed a ‘king’s attorney’ to prosecute offenders in the name of the crown.23 The name king’s attorney was used to distinguish the monarch’s counsel from others, for criminal prosecutions were undertaken by private citizens in those days.24 Edward III employed what was called a ‘general attorney’, to distinguish the position of the particular occupant of this post from an attorney appointed by the king for specific occasions and specific cases.

Eventually, the title of general attorney changed to attorney-general and the person in this position began to represent the state in all criminal trials. With the emergence of the modern state, and the function of the state to protect all its citizens from criminals, the attorney-general took over the role of prosecuting all those who broke the laws of the state. The name of attorney-general is consequently somewhat misleading. The person occupying such an office is clearly not a general in the military sense of the word, nor is he an attorney (at least not in a South African context where attorneys represent accused in criminal trials).

Early South African history

At the initiative of the Dutch East India Company, which set up a permanent supply station at the Cape in 1652 for its ships travelling between the Netherlands and the East, the Dutch office of a fiskaal was imported to the Cape. The fiscal was responsible for conducting prosecutions, as well as investigating crimes and punishing civil servants who were corrupt or neglected to perform their duties.25 The fiscal sat on the council of policy, the governing body at the Cape. Other members of the council of policy were the commander or governor at the Cape, his deputy, the commander of the soldiers at the Cape, and other senior officials. When any transgressions occurred, the members of the council of policy would act as a council of justice that could pass sentence on those it convicted. Whenever free burghers appeared before the council of justice as accused they could be represented on the council by someone of their choice who had to be "one of the oldest and most honest of the free burghers."26

In 1688, the fiscal received the title of fiskaal independent and was made directly accountable to the council of seventeen, the directors of the Dutch East India Company.27 While the fiscal sat on the council of policy, he did not have to account for his actions to the council. The governor at the Cape could neither give him orders nor silence him.28 The position of fiscal was consequently a powerful one in the Cape administration:

"The only official whose power approached that of the Governor was the Independent Fiscal, who, in addition to acting as public prosecutor in criminal trials, prevented smuggling, and controlling the police, was in 1688 given vast powers to punish officials for dereliction of duty, including the right to report the Governor to the Council of Seventeen, with whom he corresponded directly."29

Before 1783 the executive and the judiciary at the Cape were synonymous in practice. This made an independent bench impossible and negatively impacted upon the independence and credibility of successive fiscals at the time. When the governor gained the support of his senior officials there was no check on the executive. In 1705, for example, a group of colonists at the Cape drew up a memorandum against official malpractice and smuggled it to Batavia (as the Netherlands were then known). When the Cape governor at the time, W A van der Stel, discovered the conspiracy, the leaders were arrested and a special commission was established to try the dissenting colonists. The prosecutor was not the independent fiscal, who should have taken charge, but a Stellenbosch landdrost (magistrate) who had organised a counter-memorandum praising Van der Stel. He falsified the record of the interrogation, while imprisonment without bail, threats of banishment and torture were used to get the governor’s opponents to retract their allegations:30

"Clearly no force in the constitution was strong enough to uphold justice against the illegal proceedings of the Governor and his clique. Even the Independent Fiscal, whose office was intended as an independent focus of power, was ousted from his proper functions without protest. The Independent Fiscalate did not guarantee that the executive would respect fundamental rights of the individual, such as freedom of speech or freedom from arbitrary arrest, without which justice in cases involving individuals against the state is difficult to achieve. Indeed, a powerful fiscal might become as tyrannical as a powerful governor, as the burghers’ complaints against successive fiscals in the late eighteenth century show."31

In 1783 the council of seventeen created a new high court of justice. The court — also called the council of justice — had jurisdiction over criminal and civil cases at the Cape. The Batavian council of justice was the final court of appeal in respect of judgements handed down by the Cape council of justice. The members of the Cape council were appointed by the council of policy, subject to the approval of the council of seventeen. The fiscal acted as public prosecutor in criminal cases that harmed the Dutch East India Company and in all other serious criminal cases, unless they had occurred in the countryside outside of Cape Town, when a district official, the landdrost, arrested the criminal and arraigned him before the council, thereby acting as a prosecutor before the council.32

In addition to his fixed salary, the fiscal had the right to claim a commission on all fines he imposed on offenders to entice him to pursue all law breakers. When fines could not be paid, it was not uncommon for the fiscal to confiscate the property of transgressors of the law. Some fiscals were also entitled to tax agricultural produce that was delivered to foreign ships by the burgher community at the Cape.33 This rapidly led to an abuse of his position and the fiscal became a despised official among the early settlers at the Cape.34 The settlers named the shrike fiskaal (a shrike or butcher bird is a small bird of prey with a strong hooked and toothed bill with the habit of impaling its prey of small birds and insects on thorns).

In 1795 the British assumed control at the Cape. The administration of justice remained in the hands of the council of justice. The fees and additional earnings that previously formed a large and obscure part of many officials’ income were eliminated. Only the fiscal was still entitled to part of the fines imposed by the supreme court. However, the fiscal lost the independence he enjoyed before 1795, and his position was made subordinate to that of the governor at the Cape. His role remained the same: to ensure that the laws of the colony were carried out, that transgressors of the law were punished, and also to act as prosecutor in criminal trials in the council of justice.35

In 1803 the Batavian republic (as the United Netherlands had become known) took possession of the Cape, giving it the status of a Dutch colony. Important changes were undertaken in the colony’s administration of justice. Its judicial and executive authority were separated with the former being entrusted to the council of justice, consisting of six members with legal qualifications, a secretary and an attorney-general who replaced the fiscal, and who was no longer entitled to part of the imposed fines.36

In 1806 the British successfully invaded the Cape for a second time. The new British governor at the Cape was granted extensive powers. All legislative and executive powers were vested in him and the council of policy was abolished. The judiciary was subordinate to him in that he could appoint and dismiss all members of the council of justice except the president, and all authority in both criminal and civil courts was vested in him. The office of the fiscal as crown prosecutor was reinstituted. The fiscal held a position in the council of justice and could claim a commission of one-third of all fines imposed.37 The rule of successive governors at the Cape became increasingly autocratic. With the arrival of British settlers in the Cape in 1820 the voices in opposition to the governing structures at the Cape grew in influence. After a commission of inquiry reported on the settler’s complaints in the late 1820s, the governor lost his judicial powers, which ensured an independent judiciary at the Cape. The council of justice was replaced by a high court of justice consisting of a chief justice and three judges, all appointed from Britain. The office of the fiscal was replaced by that of attorney-general.38

The two Boer republics initially did not have an office of a chief prosecutor or attorney-general. In the Zuid-Afrikaansche Republiek (ZAR), accused persons were tried by elected officials such as magistrates and members of the legislature. In 1858, the office of the state attorney (staatsprokureur), which was responsible for conducting prosecutions, was established in the ZAR. The state attorney or his representatives were responsible for investigating and prosecuting all crimes committed in the ZAR. In addition to his prosecutorial functions, the state attorney had to provide legal advice to the state, draft legislation, represent the state in civil trials and consider trademark applications.39 The office of the state attorney was independent from executive interference to a large degree.40 Thus, a law of 1864 stated explicitly that the right and power to prosecute are vested exclusively in the state attorney who alone is responsible for controlling and managing prosecutions.41 The state attorney was entitled to decline to prosecute anyone against whom there was insufficient evidence. A decision not to prosecute by the state attorney opened the door for interested parties to institute a private prosecution against suspected wrongdoers.42 Interestingly, an accused had a right to claim compensation directly against a prosecutor where the latter failed to appear without good reason on the day of a trial.43 The state attorney or his representatives could conduct preliminary investigations to establish whether there was a case to be made against an accused.44 In 1867 clerks of the magistrate’s courts were appointed as prosecutors and were responsible for conducting prosecutions in the magisterial districts where they were based.45 A decision by the ZAR legislature in 1883 laid down that the position of state attorney could only be filled by a person properly qualified for it who had completed a legal degree.46

In the Orange Free State, the right and power to prosecute were also vested in the position of the state attorney. If the state attorney was unable to conduct a prosecution, a clerk of the magistrate’s court could do so. Alternatively, the state attorney could appoint any person of his choice to conduct a prosecution on his behalf.47 Most prosecutions in the lower courts were conducted by clerks of the magistrate’s courts. Minor offences such as brawls, disturbances of the peace and transgressions of municipal by-laws could be prosecuted without the consent of the state attorney by any municipal officer or police constable.48 Private prosecutions were generally permitted once the state attorney declined to prosecute a matter. A man also had an unfettered right to institute a private prosecution against anyone who had committed a crime or offence against his wife. The same right was granted to the legal guardians of minors who had fallen victim to the criminal actions of another.49

After the second Anglo-Boer War (1899-1902), in the first decade of the 20th century, the four territories that later became the Union of South Africa had attorneys-general who prosecuted criminals in the name of the English crown. All attorneys-general were members of the colonial cabinets. Having elected politicians fulfilling the role of chief prosecutors is not without its dangers. The decisions of elected attorneys-general — who are accountable to the electorate — whether to prosecute or not could be influenced by their desire to increase their popularity in the eyes of the voting public.

Struggle for independence

At the formation of the Union of South Africa in 1910, the post of minister of justice was created in the national cabinet. In each provincial division of the newly established union-wide supreme court, an attorney-general was appointed with the authority to prosecute.50 The attorneys-general prosecuted on behalf of the state, or delegated this authority to others. At the lower level, these delegates were police officers, and in the supreme court, trial advocates in private practice. An attorney-general was responsible for all the prosecutions that took place in his area of jurisdiction, and had control over all the persons who conducted prosecutions on his behalf in this area. The attorneys-general were the final arbiters of who should be prosecuted. They were independent civil servants and no provision existed for ministerial control.

Concern for such wide powers in the hands of public officials who were legally free from ministerial constraint and parliamentary responsibility prompted the government to promulgate legislation in 1926 to give the minister of justice "all powers, authorities and functions to the prosecution of crimes and offences."51 As a result the attorneys-general lost their independence and their authority to prosecute had to be assigned to them by the minister of justice. Tielman Roos, the justice minister at the time, motivated the government’s decision to curtail the independence of attorneys-general as follows:

"The chief reason why it is necessary to put this bill [the 1926 legislation] on the statute book is, in my opinion, that there is no authority whatsoever over, and no responsibility of the Attorney-General. Parliamentary responsibility is completely absent."52

While Roos gave the assurance that the traditional independence of the attorney-general would be respected, two attorneys-general resigned to protest the infringement of their independence.53

The 1926 legislation imposed an intolerable managerial and administrative burden on the minister of justice.54 In 1935, the power of prosecution was once again vested in the attorneys-general, but subject to the control of the minister of justice. Thus, while prosecutions were again formally instituted by attorneys-general, the minister was given the power to issue directions to attorneys-general to exercise their powers directly in any specific matter:

"Attorneys-General shall exercise their authority and perform their functions … subject to the control and directions of the Minister [of Justice] who may, if he thinks it fit, reverse any decision arrived at by an Attorney-General and may himself in general or in any specific matter exercise any part of such authority and perform any such function."55

The essence of this passage in the 1935 legislation was incorporated into later versions of the Criminal Procedure Act.56 The effect of the 1935 legislation, and the subsequent versions contained in the Criminal Procedure Act until the early 1990s, was that there was no formal or substantive separation of powers between an attorney-general and the executive, and that direct or indirect political influence was possible.57

While the minister seldom interfered with the decision of an attorney-general in practice, this provision in the law ensured that the minister had ultimate control over prosecutions.58 Attorneys-general and their staff were civil servants and subject to public service laws and regulations. This further impacted upon the independence of these positions as they, as civil servants, were ultimately subjected to ministerial control.59

In a 1985 decision, the supreme court expressed its dissatisfaction with the position of attorneys-general: "[The attorney-general] is not an independent officer; unlike the courts he does not exercise his powers free from executive control."60 Starting in the mid-1980s, attorneys-general and their staff began to lobby to change their positions from being civil servants and thus to regain some of their lost independence. Legislation passed in 1992 complied with this request. Moreover, the legislation went even further and granted attorneys-general a measure of independence they had not enjoyed since 1926.

Regained independence

In 1992, the Attorney-General Act was promulgated to remove attorneys-general from the control of the public service commission and to entrench the non-interference of the minister of justice.61 The legislature, however, decided to leave deputy attorneys-general, state advocates and prosecutors under the control of the public service commission.

The memorandum on the Attorney-General Bill (which preceded the act), stated that the community demands that every attorney-general should function independently of any possible interference from the executive and that the purpose of the proposed act would be to "meet the need to place the independence of the Attorney-General beyond any doubt."62

In terms of the Attorney-General Act, the authority to institute prosecutions became the sole responsibility of the attorneys-general and their delegates, free of ministerial interference.63 The independence of the attorneys-general was further enhanced by measures that removed the reduction of an attorney-general’s salary from the hands of the executive,64 and secured their security of tenure of office.65

The function of the minister of justice was reduced to that of a co-ordinator: to ensure that the reports of the attorneys-general were submitted to parliament. At most he could request an attorney-general to furnish him with a report and to provide reasons regarding the handling of particular cases:

"In terms of the Act attorneys-general enjoyed absolute independence. They were accountable only to parliament and then only in the limited sense that parliament could question them about their annual reports or dismiss them in very exceptional circumstances."66

As an attorney-general at the time put it: "The Attorney-General Act of 1992 serves to put [the attorney-general’s] independence beyond doubt. This is a wholesome development reconciling freedom and accountability."67

In terms of the 1992 law, the authority of an attorney-general was considerable and arguably more extensive than that of the courts. The exercise of an attorney-general’s powers was not delimited by laws and all decisions were left to his unfettered discretion. Moreover, unlike the courts, attorneys-general were not obliged to provide reasons for their decisions with the result that such reasons could not normally be subjected to public scrutiny and debate, as in the case of the courts, in instances where they declined to prosecute. Obviously, in cases where attorneys-general elected to prosecute, a safeguard existed in the form of the courts that could acquit accused persons wrongly prosecuted.

South Africa’s new post-1994 ruling party, the African National Congress (ANC), viewed the 1992 act with suspicion. The reasons for this were, among others, the unfettered discretion that the 1992 act afforded attorneys-general and their lack of accountability to parliament. The ANC also regarded the legislation as "an attempt by the old order prosecutors to protect their entrenched positions."68 Moreover, the ANC, on ideological grounds, favoured a centralised prosecutorial structure to that which was in essence a federal and decentralised one.

In 1994, the minister of justice at the time, Dullah Omar, set up a national consultative legal forum on the administration of justice to give effect to the government’s commitment to the transformation of the legal administration. Speaking at the first meeting of the forum in November 1994, Omar asked to whom the attorney-general was accountable and said that its office had been an instrument of the apartheid state that had applied repressive legislation with vigour and enthusiasm. In ‘the dying days of apartheid’, the independence of the office of the attorney-general was introduced. This, Omar concluded, was not done so much to guarantee independence, but to entrench the status quo.69

1996 constitution

The ANC, which was the majority party in the constitutional assembly (the body which drew up South Africa’s 1996 constitution), successfully pushed for the introduction of a section into the 1996 constitution dealing specifically with a prosecuting authority for South Africa. The section contains details on the form that the prosecuting authority would take in the new constitutional order, providing, among others, that:70

A single national prosecuting authority is instituted, structured in terms of an act of parliament. The national prosecuting authority must consist of a national director of public prosecutions as head of the prosecuting authority who is appointed by the president, and directors of public prosecutions and prosecutors.



The prosecuting authority has the power to institute criminal proceedings on behalf of the state.



National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.



The national director must determine, with the concurrence of the minister of justice, and after consultation with the directors of public prosecutions, prosecution policy that must be observed in the prosecution process.



The national director must issue policy directives to be observed in the prosecution process, and the national director may intervene in the prosecution process when policy directives are not complied with.



The national director may review a decision to prosecute or not to prosecute, after consulting the relevant directors of public prosecutions.



The minister of justice must exercise final responsibility over the prosecuting authority.

The constitutional provision dealing with the prosecuting authority was highly controversial at the time. Its constitutionality was challenged on the grounds that it impeded on the separation of powers between the legislature, executive and judiciary with appropriate checks and balances.71 The constitutional court rejected this objection, arguing that the prosecuting authority is not part of the judiciary, and that the appointment of the national director of public prosecutions by the president in itself does not contravene the doctrine of the separation of powers.72 Moreover, the court noted that the constitutional provision that an act of parliament had to ensure that the prosecuting authority ‘exercises its functions without fear, favour or prejudice’, was a guarantee of prosecutorial independence.