Chapter 3, Back to the Future, The National Prosecuting Authority Act - Lawyers for the People, The South African Prosecution Service

Powers of the national director

As head of the prosecuting authority the national director has:

"the authority over the exercising of all powers, and the performance of all the duties and functions conferred or imposed on or assigned to any member of the prosecuting authority by the constitution, the National Prosecuting Authority Act or any other law."83

The act provides that:

"the national director, shall with the concurrence of the minister of justice, and after consulting the directors of public prosecutions, determine prosecuting policy and issue policy directives which must be observed in the prosecution process."84

The precise meaning of this provision is important. The ‘concurrence’ of the minister means that the national director requires his approval; expressed differently, the minister can veto policy proposals made by the national director. Conversely, the words ‘after consultation’ mean that the national director can go ahead and ignore the input of the directors of public prosecutions if he disagrees with it.85

The national director may intervene in any prosecution process when policy directives are not complied with,86 and review a decision to prosecute or not to prosecute, after consulting the relevant director of public prosecutions, and after hearing representations from the accused person, the complainant and any other person whom the national director considers to be relevant.87 According to Van Zyl Smit and Steyn, the power to review a decision to prosecute or not to prosecute:

"appears to exist even where policy directives are being followed. It is limited, however, to review decisions on whether to prosecute or not and would not include a direct intervention in the way a case is presented in court, for example."88

To assist the national director in exercising these powers, he may conduct any investigation he deems necessary in respect of a prosecution or a prosecution process. The national director may further direct the submission of and receive reports from a director in respect of a case or a prosecution.89

Appointments

According to the National Prosecuting Authority Act, and as decreed by the constitution, the president appoints the national director. Moreover, the president — in consultation with the minister of justice and the national director — appoints the directors of public prosecutions and up to four persons as deputy national directors of public prosecutions.90 Unlike the directors, deputy national directors have concurrent countrywide prosecutorial jurisdiction. Both the deputy national directors and the directors are subject to the control and directions of the national director.

The president may also appoint — in consultation with the minister of justice and the national director — one or more directors of public prosecutions as ‘special directors’ to exercise certain powers, carry out certain duties and perform certain functions conferred or imposed on or assigned to them by the president.91 Prosecutors are appointed on the recommendation of the national director or members of the national prosecuting authority designated by him.92

Terms of office and remuneration

The national director holds office for a non-renewable period of 10 years, or until attaining the age of 65 years. Deputy national directors and directors serve unrestricted terms until the age of 65 years.93 During this period, the grounds are limited on which the national director, his deputies, or directors may be suspended or removed from office. Such suspension or removal can be done by the president only and is subject to ratification by parliament. However, the president is obliged to remove the national director, his deputies or a director from office if requested to do so in an address by both houses of parliament.94

The remuneration and terms and conditions of service of the national director, deputy national directors and directors are determined by the president provided that the salary of the national director is at least that of a high court judge.95 Deputy directors, state advocates and prosecutors are largely subject to public service rules in relation to their appointment and dismissal. Salaries below director level are determined by the minister of justice after consultation with the national director and the minister of public service and administration, and with the concurrence of the minister of finance.96 The effect of these arrangements is that prosecutors are structurally far less independent than their more senior colleagues.97

Impartiality and non-interference

A measure designed to deter members of the prosecuting authority from submitting to undue outside influence is a clause in the National Prosecuting Authority Act that obliges members to "serve impartially and exercise, carry out or perform their powers, duties and functions in good faith and without fear, favour or prejudice and subject only to the constitution and the law."98

The act further stipulates that:

"subject to the constitution and this Act, no organ of state and no member or employee of an organ of state nor any other person shall improperly interfere with, hinder or obstruct the prosecuting authority or any member thereof in the exercise, carrying out or performance of its, his or her powers, duties and functions."

Any person who contravenes this provision is guilty of an offence.99

Investigating directorates

In the past, attorneys-general and their staff generally did not have the authority to investigate crimes. At best, they could monitor and guide police investigations. In fact, the police was not obliged to follow the instructions of an attorney-general or his staff. This changed with the promulgation of the National Prosecuting Authority Act whereby directors of public prosecutions can oblige the police to conduct investigations and obtain statements.100

Formal investigative powers are granted to the prosecuting authority through the structure of investigating directorates. The head of an investigating directorate — an investigating director — must be a director of public prosecutions. An investigating director and the persons authorised by him, can fill the role of investigator and prosecutor at the same time. Investigating directorates are empowered to have police officers and detectives seconded to them at their request. Investigative directorates — which consist of, among others, prosecutors and police investigators under the guidance of a director of public prosecutions — may conduct investigations and then prosecute on the result of such investigations.

The president may — with the concurrence of the minister of justice and the national director — establish up to three investigating directorates in the office of the national director. Investigating directorates are established to investigate and prosecute matters which are not dealt with by the directorate of special operations (see section on ‘directorate of special operations’ below).101 The president — after consultation with the justice minister and the national director — must appoint a director of public prosecutions as the head of every investigating directorate.102 Investigating directors are subject to the control and directions of the national director.

An investigating director may be assisted by deputy directors of public prosecutions, prosecutors, civil servants or employees of any public or other body seconded to the investigating directorate, and any person whose services the directorate requires for a particular inquiry.103 This permits investigating directorates to be staffed with a multidisciplinary team of people who can contribute their skills in fulfilling the mandate of the directorate.

Investigating directorates are granted considerable powers for the fulfilment of their mandates. If an investigating director has reason to suspect that a specified offence has been or is being committed, or that an attempt is being made to commit such an offence, he may hold an inquiry on the matter. The inquiry may be extended to include any offence which may be connected with the subject of an inquiry.104 An investigating director may summon any person, who can furnish information on the subject of an inquiry, or who has any document or other object relating to this subject, to appear before him. The summoned person may be questioned under oath by an investigating director (or a person designated by him), and any document or object may be examined or retained by the investigating director.105 The summoned person may not refuse to answer any question on the ground that the answer could expose him to a criminal charge.106

On obtaining a warrant from a court, an investigating director or persons designated by him may enter and search premises where anything connected with an inquiry is suspected to be. An investigating director may examine any object found on the premises, and request information regarding the object from the owner or person in charge of the premises. It is a criminal offence for anyone to refuse to supply requested information, or to give false or misleading information. An investigating director may also seize anything on the premises that may have a bearing on the inquiry in question. Under certain circumstances, premises may also be entered and searched without a warrant.107

An investigating director, or any person authorised by him, for the purposes of a criminal prosecution, may institute an action in any court in the country. They may also prosecute an appeal in any court in the country emanating from criminal proceedings instituted by an investigating director.108

Prosecutors as investigators

According to English legal tradition inherited by South Africa, prosecutors do not become involved in criminal investigations. The functions and professional duties of prosecutors and detectives have traditionally been separate. The powers of investigation were granted to the police who, at the completion of their investigation, handed their findings in the form of a police docket to a prosecutor. The prosecution did not get directly involved in the combating or investigation of crime except in a reactive sense – looking at the facts of a case after a crime was committed and investigated.

In South Africa, this clear demarcation of functions between prosecutors and investigators began to blur as prosecutors took on a more active investigative role in the late 1980s. A well-known example of an attorney-general’s involvement in the investigation of crimes was the commission of inquiry regarding the prevention of public violence and intimidation (the Goldstone commission), which operated from 1991 to 1994. After it came to light that individual members of the South African Police were willing to testify about illegal police hit-squad activities, the attorney-general of the Transvaal, Jan d’Oliveira, was mandated by the state president to investigate these allegations with the assistance of carefully selected police officers.

In 1994, the minister for safety and security set up an investigation task unit (ITU) to investigate, among others, alleged hit-squad activities within the ranks of the police. The ITU comprised detectives and civilian support staff, and received the support and advice of state advocates seconded from the attorney-general’s office in KwaZulu-Natal.109

During the early 1990s, South Africa experienced an unprecedented growth in organised crime. In response, the South African Police Service set up a number of organised crime units.110 Due to the legally intricate nature of the investigations conducted by the organised crime units, they are often assisted in their investigations by attorneys-general and their staff.111 Senior state advocates are often allocated to an organised crime unit from the commencement of their investigations into an organised crime syndicate. Legislation promulgated in 1991 gave senior prosecutors and their staff the power to investigate and prosecute serious economic offences.112 The erstwhile office for serious economic offences in many ways was the forerunner of the investigating directorates established by the National Prosecuting Authority Act.

Controversy surrounding the new act

The legislation that created South Africa’s first national prosecuting authority headed by a national director of public prosecutions caused substantial controversy at the time it was debated and eventually passed by parliament.113

Security of tenure for senior prosecutors

An early draft of the National Prosecuting Authority Bill proposed to restrict the terms of office of both the national director and the directors of public prosecutions to fixed terms determined by the president at the time of their appointment, after which they could be reappointed for one additional term.114 This was a step backward in respect of the security of tenure of the country’s most senior prosecutors. The legislation in force at the time — the Attorney-General Act of 1992 — provided that attorneys-general were secure in their position until the age of 65. The parliamentary committee of the general council of the bar of South Africa commented on the draft bill’s provision as follows:

"The impression is created that the national director and directors of public prosecutions may be appointed for a period of probation and thereafter, if the ruling party is happy that they are toeing the line, they will be reappointed."115

This contentious provision was eventually removed from the bill. The act as passed by parliament provides for the national director to be appointed for a non-renewable term of 10 years, unless he turns 65 before the expiry of this period. Directors are appointed for life until the age of 65 as was the position with attorneys-general in terms of the 1992 legislation.

Qualifications of national director

The bill initially provided that a person could be appointed as a director of public prosecutions only if such a person had been involved with the application of the law for at least 10 continuous years, possesses expertise suitable for the position, and has the right of appearance in the supreme court (now the high court). Yet, the bill did not contain any requirements regarding the qualification of the national director or his staff. The president of the association of law societies felt that "it would be wholly inappropriate for someone to be appointed to the position [of national director] who did not have the qualification and experience as an Advocate or Attorney."116 The bill was eventually amended to include a provision that both the national director and the directors of public prosecutions must possess legal qualifications that entitle them to practice in all courts in the country.117

Interference by the national director

The bill made provision for the national director to appoint one of his staff members to the offices of the directors of public prosecutions, to enable the national director "to exercise his powers or to carry out his duties" there.118 The society of state advocates of South Africa objected to this, arguing that "the appointment of people whose sole function is apparently to look over the shoulders of Directors will only serve to create an atmosphere of hostility and mistrust."119 The general council of the bar commented that the provision will cause friction between the various directors of public prosecutions and the national director:

"Such a person [the national director’s representative] will be seen as a spy and instead of co-operation one can expect that he will meet the resistance from the members of the directors’ staff. Members of the directors’ staff should not make decisions whilst constantly looking over their shoulders. Moreover such a placement could have the practical effect that the director of public prosecutions is no longer in control of the prosecutions in that particular area but that the staff of the national director, who has been placed in the office of the director, is in fact in control."120

Some of the attorneys-general at the time also expressed their disquiet about the bill’s provision on the grounds that it could lead to political interference in their work.121

The provision that the national director can appoint his staff members to the offices of the directors to exercise his powers was eventually dropped from the bill. However, in terms of the present act, the national director’s powers to interfere in the decisions of the directors are still substantial. The national director, for example, may intervene in any prosecution process when policy directives are not complied with,122 and review a decision to prosecute or not to prosecute after consulting the relevant director.123 The power to review a decision not to prosecute can serve to ensure that prosecutorial independence is not abused. The point has been made, however, that the power to review a decision to prosecute poses a "potential danger that the National Director could prevent a prosecution that would be politically embarrassing."124

Concern about political interference

Concerns that a national director of public prosecutions could misuse his power to prevent a prosecution were accentuated by comments made by the minister of justice, Dullah Omar, at the time when the National Prosecuting Authority Bill was discussed in parliament. Upon the return to South Africa of Allan Boesak, a prominent ANC member, Omar – who was also the Western Cape leader of the ANC at the time – questioned the decision of the Western Cape attorney-general to prosecute Boesak for fraud and theft of Danish aid money. Defending Boesak as having engaged in ‘struggle bookkeeping’, Omar said that “neither the president, the cabinet, nor the minister of justice were asked for their views with regard to the possible prosecution [of Boesak]… and when the attorney-general after his own investigation decided to prosecute, again we had no say in the matter.”125 Omar’s statement raised the suspicion that the bill, once promulgated, could be used as a tool by the ruling party to interfere in the prosecution process.

In December 1998, judge van der Walt of the Transvaal provincial division of the high court refused bail to three cadres of the ANC (known as the ‘Eikenhof three’) who were convicted and sentenced in 1994 for the murder of a woman and two children at Eikenhof near Johannesburg. The three brought an appeal on the basis of new evidence that suggested that members of the Pan Africanist Congress (PAC) were responsible for the murders. The state indicated that it would oppose the appeal. Prior to the hearing of the appeal the national director of public prosecutions, Bulelani Ngcuka, instructed the prosecutor of the case to withdraw his opposition to the bail application. Judge van der Walt said that Ngcuka’s decision was “unfortunate, ill-considered, and unwise” in the light of his connection to the ANC.126

Appointment of first national director

In July 1998, the president appointed Bulelani Ngcuka as South Africa’s first national director of public prosecutions. Ngcuka was an ANC insider. In 1988, Ngcuka and Dullah Omar formed part of an interim committee to prepare the relaunch of the United Democratic Front in the Western Cape.127 At the time of his appointment, Ngcuka was an ANC member of the national council of provinces, a position he had held since 1994 when he was elected to the Senate (as it was then known) to become the ANC’s chief whip. In 1990 he became a member of the ANC’s constitutional committee. He represented the movement at the Codesa negotiations and the multiparty talks in Kempton Park where he served on the working group dealing with the transformation of the judiciary.

The general council of the bar expressed its reservations about Ngcuka’s appointment: "The appointment of Ngcuka underscores our objections to the Bill. It is clear he is a party-political man who could be susceptible to political influence."128 Opposition parties expressed their concern of Ngcuka’s close political affiliations with the ruling party. One opposition party spokesperson on justice stated that "to place the national control of prosecutions in the hands of a committed ANC member will compromise the independence of the judicial process in the eyes of the public." The spokesperson did add, however, that Ngcuka "is a talented parliamentarian as well as being a very capable lawyer."129 This was the general response of opposition politicians at the time: that Ngcuka’s close ties to the ruling party were a cause for concern, but that he was a hard working and able individual.

Ngcuka sought to allay the concerns about his appointment and vowed that he would not tolerate the political interference he was expecting. "I will tell [the politicians] to back off because I must protect the integrity of my office."130 Ngcuka stressed that his main objective was to improve the effectiveness and efficiency of the prosecution service:

"Prosecutors are lawyers for the people. They represent the victims of crime but they are seen, particularly in the community that I come from, as representing the past oppressive system. My role will be to legitimise the system."131

Ngcuka also sought to bolster the morale of prosecutors. Speaking at the first national public prosecutors’ conference shortly after his appointment, Ngcuka told the meeting that he found it