Chapter 4

NEW ERA:
THE NATIONAL PROSECUTING AUTHORITY


Published in Monograph No 53, March 2001
Lawyers for the People
The South African Prosecution Service
Martin Schönteich


Office of the national director

The establishment of South Africa’s first national prosecuting authority was fraught with difficulties. According to the national director of public prosecutions, Bulelani Ngcuka, on the first day he arrived at his new offices:
"there was no furniture, there were no phones, no fax machines or computers. It was a bare office; it had nothing. So before doing anything else, we had to roll up our sleeves and get to work to get the office functional … When I was appointed, I thought I would be in a position to do some initial planning and conceptualisation about how I would like to see my office take shape but from the day I started, I have been engaged in fire fighting, responding to one crisis after another, leaving me with very little time to stand back and evaluate where we are going."133
The office of the national director took over a prosecution service that was understaffed, underpaid, demoralised and fragmented. The office set itself a number of priorities which required urgent attention:
  • It aimed to develop an appropriate structure for the office of the national director. This included determining the kind of administrative support the national office should provide to enhance the effectiveness of the regional offices.
  • It prepared to publish a prosecution policy. In terms of legislation the national director was obliged to publish such a policy, which would be applicable to the whole prosecution service, within six months of his appointment.134
  • It focused on the improvement of the salaries of prosecutors.
  • It planned to fill vacancies that existed in most prosecutors’ offices in the country, both at a junior prosecutor level, but also at deputy director level.
  • It aimed to create an information system that informs the national director’s office of the performance of every prosecutor and court in the country according to a set of reliable indicators with which to measure the prosecution service.
  • It set up a financial management system that permits the national director’s office to decide how resources should be allocated to reach the objectives it has set. (Previously, all expenses relating to the prosecution service fell under the budget of the department of justice.)
  • It planned to develop a national communication strategy for the national prosecuting authority. This should serve to improve internal communication within the prosecution service and external communication with the public and the legal profession. As the national director put it at a conference of senior prosecutors: "The present image of the prosecutor as a mean and inaccessible cranky old person, feared even by his family, must change."135
To assist the office of the national director to identify its future role and responsibilities, a team of organisational development experts was appointed. The team advised the national director on the organisational, staffing and management requirements for the effective and efficient functioning of his office. The team identified the following roles and functions for the national director and his office:136
  • Managerial leadership: The national director should provide the necessary leadership to the national prosecuting authority by ensuring that all systems and functionaries provide a high quality and efficient service. The national director is accountable for effective service delivery thus contributing towards an effective criminal justice system. The national director must further provide strategic leadership to the directors of public prosecutions.
  • Policy development and implementation: The national director must manage and drive the policy framework regarding prosecutions to ensure a standard and uniform prosecution policy for the country.
  • Monitoring and evaluation: The national director needs to monitor and track adherence to the prosecution policy and the effective functioning of the various institutions that make up the national prosecuting authority. Consequently, the national director needs to put in place systems and processes that continually track and evaluate the performance of his staff through an appropriate performance management framework.
  • Complaints management: The national director’s office is responsible for responding to and dealing with complaints received about any behaviour of, or decision by, his staff that brings the national prosecuting authority into disrepute. The national director needs to determine which complaints he will deal with personally, complaints that are to be dealt with by his office, and complaints which should be dealt with at the directors’ level.
  • Human resource management and development: The office of the national director should manage all facets of human resource management and development in the prosecution service. This includes recruitment, remuneration, training, development and other personnel issues. In the short term, the national director must ensure that vacant professional posts in the prosecution service are filled.
  • Authority to intervene: The national director has the authority to intervene in the decisions of directors whether to prosecute or not to prosecute. The authority of the national director must be made clear and he needs to be involved in the resolution of disputes that may arise between his office and that of a director over a decision whether to prosecute or not.
  • Budget controls: The office of the national director should manage the budget of the national prosecuting authority.
  • Advocacy: The national director’s office needs to enhance the legitimacy and image of the prosecution service. This includes improving the working conditions of prosecutors.
  • Research and training: The national director’s office is responsible for developing best practices models for the prosecution service through ongoing research and exposure to foreign prosecution systems. The office must also develop training programmes aimed at developing and upgrading the skills and knowledge of prosecutors.
  • Delegation of functions and powers: The national director should delegate appropriate responsibilities and powers to the directors of public prosecutions.
  • Case load management: The office of the national director should focus on the prosecution of the following types of cases only: cases involving threats against the security of the state, crossborder crimes, extradition cases, and any other priority cases as agreed to with the directors of public prosecutions.

Policy manual for the prosecuting authority

One of the initial challenges for the new national prosecuting authority was to develop a policy framework for the prosecution service that would guide prosecutors in the exercise of prosecutorial discretion. The proper exercise of this discretion requires a balance to be struck between the public interest in the effective enforcement of the criminal law, and the rights of suspects and accused persons to fair process.

The policy manual for the national prosecuting authority was released in October 1999. According to the manual, it is in the public interest to have a uniform prosecution policy, standards and directives which are applicable throughout the country. This should serve to inform the public of the basis upon which prosecutors exercise their discretion and make decisions, and should enhance public confidence in the criminal justice process. The manual recognises the "sometimes conflicting needs for healthy prosecutorial discretion on the one hand, and on the other, the fairness through consistency guidelines can bring."137

The policy manual consists of three parts: a prosecution policy, policy directives, and a code of conduct for members of the prosecuting authority. The purpose of these three documents is to guide prosecutors in decision-making, regulate their professional conduct and direct them in certain areas of their work. The foreword to the policy manual points out that the manual should not stifle creativity or cause prosecutors to fear that the exercise of their discretion could be undermined:
"The manual deals with current social issues and gives direction about prevailing concepts of fairness to victims, witnesses and accused persons. These guidelines [contained in the manual] are intended to be flexible enough to accommodate new thinking, changing circumstances and local conditions."138

Prosecution policy


The national director is obliged to determine a prosecution policy for the national prosecuting authority, with the concurrence of the minister of justice and after consulting the directors of public prosecutions.139 The first prosecution policy was tabled in parliament in January 1999.

The prosecution policy seeks to promote the exercise of authority by prosecutors, and contribute to the fair and even-handed administration of criminal law by prosecutors. A central purpose of the prosecution policy is to enhance public confidence in the prosecution system. According to the national prosecuting authority’s first annual report, it is "important to have a prosecution policy which can be applied uniformly throughout the country and which will reflect what is best for South Africa."140

The prosecution policy sets out, with due regard to the law, the way in which the prosecuting authority and individual prosecutors should exercise their discretion. Moreover, the policy guides prosecutors in the way they perform their functions, exercise their powers and carry out their duties in order to make the prosecution process more fair, transparent, consistent and predictable. This is important as prosecutors have the discretion to make decisions which affect the criminal justice process and the rights of accused persons and victims alike. This discretion can be exercised at different stages of the criminal justice process, such as the discretion:141
  • whether or not to institute criminal proceedings against an accused;
  • whether or not to withdraw charges or stop the prosecution against an accused;
  • whether or not to oppose an application for bail, or to release an accused who is in custody following an arrest;
  • with which crimes to charge an accused and in which court the trial should take place;
  • whether or not to accept a plea of guilty tendered by an accused; and
  • to decide which evidence to present during a trial.
The prosecution policy lays down criteria to assist prosecutors in coming to a decision whether or not to prosecute a suspect or an accused. Clearly, this is an important decision as it may have profound consequences for the victim, witnesses, the accused and their families. A wrong decision may also undermine the community’s confidence in the prosecution system. The prosecution policy advises that resources should not be wasted pursuing inappropriate cases, but must be used to act vigorously in those cases worthy of prosecution.

In deciding whether or not to institute criminal proceedings against an accused, prosecutors are advised to assess whether there is sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution. If there is no reasonable prospect of a conviction, a prosecution should not be commenced or continued. The test of a ‘reasonable prospect’ must be applied objectively after careful deliberation to avoid an unjustified prosecution. The policy recognises that it may be difficult for a prosecutor to make a proper assessment whether to prosecute or not — especially when a prosecutor has only the police docket and the information it contains on which to base a proper decision. Prosecutors are advised that, in difficult cases, they should probe deeper than merely relying on the written statements provided by the police, and consult with prospective witnesses to evaluate their credibility. Moreover, the prosecution policy advises prosecutors to take into account a range of factors — listed in the policy — when deciding whether or not to institute a prosecution. These include the strength of the state’s case, the admissibility of the state’s evidence, the credibility of the state’s witnesses, the strength of the defence’s case, and the extent to which the prosecution would be in the public interest.142

Prosecutors are admonished to present their cases "fearlessly, vigorously and skillfully."143 At the same time, prosecutors must present the facts of a case to a court fairly. The primary function of a prosecutor is to assist the court in coming to a just verdict. As a result, prosecutors must disclose to the court, for example, evidence collected by the police that has been obtained in an illegal manner, or make the court aware of crucial witnesses even though their testimony may be favourable to the accused. In essence, prosecutors must act impartially and in good faith. They should not allow their judgment to be influenced by factors such as their personal views regarding the nature of an offence, or the race, national origin, gender, religious beliefs, status, political beliefs or sexual orientation of the victim, witnesses or the accused.144

The prosecution policy instructs prosecutors to show sensitivity and understanding to victims and witnesses, and to assist them by providing them with protection where necessary. As far as practical and necessary, prosecutors should consult with victims and witnesses before the beginning of a trial. Prosecutors should assist them by providing appropriate and useful information on the trial process, and reasons for postponements, delays and findings of the court.

With regard to the investigation and prosecution of crime, the policy states that the relationship between prosecutors and police officials should be one of efficient and close co-operation, with mutual respect for the distinct functions and operational independence of each profession. Prosecutors should work with other departments and agencies such as the departments of correctional services and welfare, legal organisations, non-governmental organisations and other public institutions to streamline procedures and enhance the quality of its service provided to the criminal justice system.145

Policy directives

There is a statutory obligation on the national director to issue policy directives that "must be observed in the prosecution process."146 The first set of policy directives came into operation in November 1999 "to deal with all the professional duties of prosecutors."147 The policy directives replaced all previous attorneys-general circulars and instructions to prosecutors, as well as department of justice circulars and instructions, which sought to regulate the professional conduct of prosecutors. A director of public prosecutions may issue new circulars with general instructions to prosecutors in his region provided these are not inconsistent with the policy directives of the national director.

The policy directives are intended to regulate processes and procedures that prosecutors apply from the stage when they receive a case docket from the police until an appeal has been finalised. The directives deal with a wide range of issues and topics that prosecutors may encounter during the course of their professional duties. Some of the more pertinent one’s are listed below:
  • The primary function of a prosecutor is to assist the court to arrive at a just verdict and not simply to secure a conviction at all cost. The notion of a fair trial and the basic principles of the presumption of innocence and the onus resting on the state to prove its case beyond reasonable doubt remain paramount. A prosecutor must give attention not merely to the content of the evidence, but also, in the spirit of the right to a fair trial, to the manner in which it was acquired. Moreover, all parties to criminal proceedings (the victim, witnesses, the police, the accused and legal representatives) have rights, which the prosecutor must recognise and respect.148
  • Prosecutors must undertake the proper planning of court rolls and prioritisation of cases and make maximum use of the available court time.149 Prosecutors should set down cases for trial with sufficient time allowed to dispose of the matter without interruptions or further postponements. Long delays in trials, continuous postponements and the piecemeal handling of partly completed cases have the effect that witnesses disappear, forget important parts of their evidence or lose interest in the case. The delays also reflect badly on the dignity and authority of the court and the right of the accused to a fair trial.150
  • A prosecution may be instituted only in cases where there is evidence under oath or affirmation that establishes the elements of an offence and links the identified suspect to it.151
  • Prosecutors should oppose the granting of bail to accused who, among others, are charged with serious crimes, are likely to flee and not stand trial, or could interfere with witnesses or tamper with evidence should they be released. However, prosecutors should not oppose bail if the interests of justice do not require the detention of the accused. Prosecutors must continuously reassess the state’s attitude to bail in respect of accused in custody awaiting trial. Where an accused has been in custody for longer than three months, prosecutors should specifically raise the issue at each court appearance thereafter and ask the court to record the reasons for the further detention.152
  • Prosecutors must recognise the interests of witnesses and victims from the start of the investigation through to the finalisation of the case, especially the victims of sexual assault (including rape and indecent assault).153
  • Prosecutors need to ensure that sufficient facts are placed before the court for it to impose an appropriate sentence. In this regard, prosecutors must ensure that the court is informed of the existence of aggravating circumstances surrounding the commission of an offence and — where an accused is undefended — mitigating factors. Upon conviction, the accused’s record of previous convictions must be placed on record unless it is not available and the accused has been convicted of a relatively minor offence.154
  • No member of the prosecuting authority may perform remunerative work outside his employment without authorisation from the national director. No member of the prosecuting authority may request, elicit or accept any gift, donation, treat, favour or sponsorship (other than in a bona fide private capacity) that may compromise, or may be perceived to compromise his professional integrity or that of the profession as a whole.155

Code of conduct

It is a statutory duty of the national director to frame a code of conduct for the national prosecuting authority in consultation with the minister of justice, the deputy national directors and directors of public prosecutions. The code of conduct must be adhered to by all members of the prosecuting authority.156 A copy of the code is handed to all prosecutors when they take the oath or make an affirmation prior to commencing their duties as members of the national prosecuting authority. In framing the code of conduct, due account was taken of, among others, the values and principles enshrined in the constitution, the aims to be achieved by the national prosecuting authority as set out in the National Prosecuting Authority Act, and the United Nations guidelines on the role of prosecutors.

The code of conduct acknowledges the crucial role of prosecutors in the administration of criminal justice. It emphasises the essential need for prosecutions to be fair and effective and for prosecutors to act without fear, favour or prejudice. Moreover, it serves to inform the public of what is expected of prosecutors, and is aimed at ensuring public confidence in the integrity of the criminal justice process. "Above all the code requires all prosecutors to respect human dignity and human rights and to perform their professional duties with full recognition of the supremacy of the constitution and the rule of law."157 The more salient features of the code of conduct include:158
  • Prosecutors should respect, protect and uphold justice, human dignity and fundamental rights as entrenched in the constitution. They should also serve and protect the public interest, and strive to be consistent, independent and impartial.
  • The prosecutorial discretion to institute and stop proceedings should be exercised independently in accordance with the prosecution policy, and should be free from undue political and judicial interference.
  • Prosecutors should take into consideration the public interest as distinct from partisan interests or concerns. Moreover, they should be sensitive to the needs of victims and do justice between the victim, the accused and the community, according to the law and the dictates of fairness and equity.

    In their role as lawyers for the people in adversarial proceedings, prosecutors should perform their duties fearlessly and vigorously. Where authorised to do so by law, prosecutors should participate in the investigation of crime. When exercising authority over the police, prosecutors should do so objectively, impartially and professionally, insisting that the investigating agencies comply with legal precepts and fundamental rights. During both the trial and sentencing phases, the state’s case should be advanced purposefully, but not beyond what is permitted by evidence.
  • If requested by interested parties, prosecutors should supply reasons for the exercise of prosecutorial discretion, unless the individual rights of persons such as victims, witnesses or accused may be prejudiced, or where it may not be in the public interest to do so.
  • Prosecutors should safeguard the rights of unrepresented accused. They should disclose to the accused evidentiary information that is beneficial to his defence, and refrain from using evidence against an accused that is reasonably and reliably believed to have been obtained in legally objectionable circumstances. Moreover, prosecutors are obliged to take the necessary steps to ensure that suitable action is considered against those responsible for using illegal methods in obtaining evidence.

United Nations guidelines

The National Prosecuting Authority Act imposes a duty on the national director to bring the United Nations guidelines on the role of prosecutors to the attention of the directors of public prosecutions and prosecutors, and to promote their respect for the principles it contains.159 The UN guidelines were formulated to assist member states in their task of securing and promoting the effectiveness, impartiality and fairness of prosecutors in criminal proceedings within the framework of the states’ national legislation and practice.160 They include among their recommendations on the prosecutor’s role in criminal proceedings the following:

  • Prosecutors shall perform an active role in criminal proceedings, including the institution of prosecutions and, where authorised by law or consistent with local practice, in the investigation of crime, and supervision over the legality of these investigations (article 11).
  • Prosecutors shall not initiate or continue prosecution, or shall make every effort to stay proceedings, when an impartial investigation shows the charge to be unfounded (article 14).
  • Prosecutors shall give due attention to the prosecution of crimes committed by public officials, particularly corruption, abuse of power, grave violations of human rights and other crimes recognised by international law (article 15).
  • In countries where prosecutors are vested with discretionary functions, the law or published rules or regulations shall provide guidelines to enhance fairness and consistency of approach in taking decisions in the prosecution process (article 17).
  • In accordance with national law, prosecutors shall give due consideration to waiving prosecution, discontinuing proceedings, or diverting criminal cases from the formal criminal justice system, with full respect for the rights of suspects and victims. For this purpose, states should fully explore the possibility of adopting diversion schemes not only to alleviate excessive court loads, but also to avoid the stigmatisation of pretrial detention, charge and conviction, as well as the possible adverse effects of imprisonment (article 18).