Chapter 7

PROVIDING ANSWERS:
REASONS FOR THE PROSECUTION'S POOR PERFORMANCE

Loss of experienced personnel

Between January 1994 and December 1997, some 630 prosecutors resigned. Between them they had the equivalent of more than 2 000 years of work experience as prosecutors.286 In the office of the attorney-general of the Western Cape and in the magistrate’s courts situated in the greater Johannesburg region, almost a quarter of the professional staff resigned in 1997.287 While prosecutors who left the prosecution service were replaced, and the absolute number of prosecutors employed has consistently increased, the high personnel turnover has meant a decline in the experience level of the average prosecutor. In 1998 a Pretoria high court judge criticised the department of justice for appointing "inexperienced and incompetent" personnel, and said urgent attention should be given to improving salaries of prosecutors. Mr Justice de Villiers ordered the director-general of justice to report to the court why inexperienced persons had been appointed in posts of the office of the Witwatersrand attorney-general.288

In 1996, for the area falling under the jurisdiction of the attorney-general of the then Transvaal, the average period of experience for district court prosecutors was 1.6 years. For regional court prosecutors it was 2.2 years.289 In 1997 the average experience level of all magistrate’s court level prosecutors was 3.5 years. Experience levels varied from province to province, however. In the Western Cape it was a mere six months.290

Salaries of prosecutors in non-managerial positions and junior state advocates are linked to their experience levels. it is consequently possible roughly to determine the average experience levels of such prosecutors on the basis of their salary levels. In October 2000, some 2 171 prosecutors below the rank of senior public prosecutor (SPP), and junior state advocates were employed by the department of justice. Of these, just under a quarter (24%) had been prosecuting for less than 18 months, and just over a quarter (28%) had worked as prosecutors for between 18 and 36 months. Almost four-fifths (79%) had prosecuted for 6 years or less (graph 16).

A rapid turnover of staff impairs the professional capacity of the prosecution service. Prosecuting is a practically oriented profession. It requires the ability to apply legal theory to the actual cases before court, to sum up the demeanour and expression of witnesses quickly and correctly, and to present various forms of evidence and witnesses in such a manner to the court to build up a convincing and coherent case. Many of these skills cannot easily be taught and are acquired and perfected through practice and experience. A rapid staff turnover therefore undermines the professional capacity of the prosecution service. Moreover, many experienced prosecutors who leave the prosecution service join the private sector to specialise in criminal law defending clients against their erstwhile colleagues, some of whom remained behind because of their inability to obtain employment in the private sector.

The high staff turnover also "undermines the professionalisation of the office", impeding the potential benefits of long-term organisation and the effective allocation of resources.291 As long ago as 1981, the Hoexter commission of inquiry into the structure and functioning of the courts stressed the need for the department of justice to retain its skilled and trained personnel, and warned that the lack of experience among prosecutors was cause for great despondency.292

"With an inexperienced prosecutor the chances are strong that the State case — whose preparation may have involved a lengthy police investigation — will be scuttled: more especially should the accused be represented by a seasoned attorney or advocate."293

The rapid outflow of experienced prosecutorial staff in the mid-1990s was exacerbated by long delays in the filing of vacancies. Especially at senior level, posts were often left vacant for months before being filled.

While the size of the prosecution service slowly expanded over the years, the number of new prosecutor posts created were not in proportion to the rise in the crime rate.294 For example, the number of district and regional court prosecutors falling under the jurisdiction of the then attorney-general of the Witwatersrand local division, which included the crime-prone areas of greater Johannesburg, increased from 227 in 1993, to 230 in 1997: an increase of only 1.3% over four years.295 In mid-1997, the minister of justice at the time, Dullah Omar, told parliament that, "according to scientifically determined norms," there was a shortage of 35 senior public prosecutor and 407 public prosecutor posts. At the time there were approximately 1 600 legally qualified graduates on the department of justice’s central waiting list who had applied to be appointed as prosecutors. These could not be filed "due to a shortage of funds", Omar said.296 In October 2000 the national director of public prosecutions, Bulelani Ngcuka, revealed that there were 180 000 outstanding criminal cases in the country’s courts, and that it would take the existing number of prosecutors two years to deal with the backlog of cases, excluding any new cases. To deal with the outstanding cases, a further 230 prosecutors had to be appointed, Ngcuka said.297

As a result of the lack of staff — especially senior and experienced prosecutors — the prosecution service is unable to deal effectively with all the cases referred to it by the police. Between 1987 and the end of 1999 the number of prosecutors increased from 1 019 to 1 819, or by 79% (graph 17).298 Over the same period the number of many serious crimes recorded by the police more than doubled. Serious assault rose by 112%, murder by 143%, rape by 182%, and robbery by 265%.299 In 1987 there was, on average, one prosecutor for every 45 recorded robberies. By 1999 there was one prosecutor for every 95 recorded robberies.

Between the end of 1995 and 1999, the number of crimes recorded by the SAPS increased considerably. Over the same period, the number of cases investigated by the police also increased, albeit to a lesser extent because of an increase in the number of cases which were withdrawn and closed as undetected over this period. Significant, however, is the substantial increase in the number of investigated cases in the court process which more than doubled between December 1995 and December 1999 (graph 18). This is not because of an increase in the number of cases which were sent to court by the police (as the number of cases investigated did not increase by much over this period), but mainly because of an increase in the length of time the prosecution service and the courts took to finalise cases that came their way.

Little research has been undertaken to identify the reasons why the prosecution service experiences such a high turnover of professional staff.301 It is, however, possible to identify a number of interrelated reasons which follow below.

Poor pay

Less than private sector

Salaries of prosecutors302 were described as a "national disgrace" by the 1997 interim Hoexter commission report.303 In early 2001 a beginner prosecutor with a minimum qualification of a three-year legal degree or diploma, earned a gross salary of R58 849 per annum — excluding pension and medical aid benefits and an optional housing allowance.304 Generally, after a three-year period of service, the salary increases to R96 046 per year; and after a further three years of service to R115 227 per year. With a gross salary of under R115 000 after six years of service, most law graduates with good grades do not even consider the prosecution service, while many of the better prosecutors resign as their skills are better rewarded in the private sector.305 It is only after a decade of service that a prosecutor’s salary gets close to R150 000 per year (table 3).306

Table 3: Prosecutors’ salaries by years of service and rank
Years of service/rank	Salary range
0-18 months	R58 849 – R68 197
19 months – 3 years	R73 303 – R81 779
4-6 years/state advocate	R96 046 – R109 119
7-9 years/state advocate	R115 227 – R123 785
10-12 years/state advocate	R143 822 – R161 162
>12 years/state advocate	R167 780 – R190 279
SPP/senior state advocate	R201 933 – R224 696
Chief prosecutor	R229 545 – R249 081
DDPP	R264 411 – R292 402
DPP	R343 728
DNDPP	R365 211
NDPP	R429 657

The highest salary level a prosecutor can attain is R190 279 per year. There are, for example, a number of prosecutors with 20 or more years of service who have reached the highest salary level and have remained at their salary level for years. Prosecutors can advance beyond this salary ceiling only by being promoted to a senior public prosecutor (SPP) or chief prosecutor position. Such positions are limited, however. In October 2000, there were 114 senior public prosecutors and 32 chief prosecutors in the country. Moreover, many prosecutors do not want to occupy these posts as senior and chief prosecutors primarily fulfil a managerial and administrative function and rarely appear in court. Persons who have prosecuted for 10 or 15 years often have no desire to become office-based managers dealing with day-to-day managerial and administrative problems. Many good prosecutors are also not necessarily good managers and have no managerial training. It would consequently be neither in their nor in the prosecution service’s interest for them to swap the courtroom for an office.

Junior state advocates who prosecute serious crimes in the high court are employed at a starting salary of R96 046 per year and can hope to progress to an annual salary of R190 279. Upon promotion to senior state advocate rank, salary levels increase to between R201 933 and R229 545 a year, depending on seniority and experience. Senior state advocates prosecute the most serious and intricate crimes such as fraud involving hundreds of millions of rand, serial murderers and rapists, and the criminal activities of large organised crime syndicates. By general public service standards, senior state advocates earn a good salary. However, compared to their private sector peers, their salaries are low. A good senior counsel defending a leader of a crime syndicate can realistically expect to earn upwards of R10 000 a day. A senior state advocate’s salary can improve only through promotion to the level of a deputy director of public prosecutions (DDPP). DDPP posts are limited (there are between 30 and 40 in the country), and much of their time is spent on administrative and managerial work.

Salary levels for posts above DDPP level are set by statute. The salary of the national director of public prosecutions (NDPP) may not be less than that of a judge of the high court, set at R429 657 per year at the time of writing, and is determined by the president.307 The salary of a deputy national director of public prosecutions (DNDPP) may not be less than 85% of that of the NDPP, and a director of public prosecutions (DPP) may not earn less than 80% of the national director.

Less than magistrates

Adding to prosecutors’ unhappiness is a widening salary gap between prosecutors and magistrates. In 1995 magistrates were removed from the public service co-ordinating bargaining council with the result that the magistrate’s profession can negotiate its salaries directly with the justice department. The widening salary gap caused tensions between prosecutors and magistrates, and provided experienced prosecutors with a strong financial incentive to apply for magistrate’s positions. For example, in mid-1997, the starting salary of a magistrate was R65 300 a year, while a beginner prosecutor earned R40 800 a year (63% of the starting salary of a magistrate).308 By July 1999, the starting salary of a magistrate had jumped to R179 304 a year, while a beginner prosecutor earned R55 257 a year, or less than a third of the salary of a magistrate (graph 19). The national union of prosecutors points out that the difference between the annual salary of a prosecutor with 10 years’ experience and that of a magistrate with one year, amounts to about R40 000 less for the prosecutor.309

The salaries of prosecutors eventually level out with those of magistrates whose salaries are fixed irrespective of their length of service. However, prosecutors, other than senior state advocates and those in management positions such as senior public prosecutors and chief prosecutors, need more than 12 years of service before they are eligible for the same salary level as that of a newly appointed magistrate. In October 2000, only 21 out of 2 171 prosecutors (or 1%) were earning about the same as magistrates. As a result of the enormous salary discrepancies between most prosecutors and magistrates many able prosecutors seek to become magistrates after acquiring a few years of prosecutorial experience. For example, during the first eight months of 2000, some 52 new magistrates were appointed by the department of justice, of which 48 came from the ranks of prosecutors.310 According to prosecutors’ unions, 800 of 1 200 applications received for the magistrates’ posts came from prosecutors.311

Prosecutors argue that there should be salary parity between themselves and magistrates. This argument is based on a number of grounds.312 First, the minimum educational or legal qualifications required of prosecutors and magistrates are the same. Second, prosecutors and magistrates have similar burdens of responsibility, albeit in different areas of the criminal justice process. Magistrates are responsible for weighing up the evidence presented to them and deciding whether an accused should be convicted or acquitted of the charge against him. Should an accused be convicted, magistrates are responsible for handing down an appropriate sentence. Prosecutors have to make equally important decisions, only one step earlier in the process. Prosecutors have to weigh up the evidence available to them in the police docket and decide whether or not to prosecute a suspect. Should they elect to prosecute, prosecutors have to decide what crimes(s) an accused should stand trial for and in which court the accused should be tried.

Third, the daily work routine of prosecutors is more onerous and physically taxing than that of magistrates. Magistrates are primarily concerned with listening to the evidence that is presented to them in court, keeping up-to-date with relevant legislation and case law, and formulating reasons for their judgements and sentencing decisions. Prosecutors, in addition to perusing and evaluating the information contained in police dockets and formulating charges against accused (which also requires an up-to-date knowledge of legislative developments), have to guide and assist investigating officers in their investigations, consult with state witnesses, present evidence in court, cross-examine accused and defence witnesses, and assist the court in coming to a proper sentencing decision in the event that an accused is convicted. Prosecutors also have to deal with a number of managerial and administrative duties such as managing their court rolls and providing defence lawyers with information contained in the police docket on request.313 Many prosecutors take work home with them as they do not have enough time during their working day to prepare the cases they have adequately to present in court. For example, during 1998, prosecutors falling under the jurisdiction of the director of public prosecutions of the Eastern Cape performed a combined total of 25 752 hours of overtime.314

Simmering salary saga

The salary situation of prosecutors has been aggravated by numerous rounds of unsatisfactory salary negotiations and unmet promises of improved salaries by the department of justice. In mid-1996 many prosecutors and members of the society of state advocates of South Africa embarked on a nationwide work-to-rule campaign, marking the first time that a significant number of prosecutors and state advocates participated in any kind of industrial action. The dispute was precipitated by the department of justice’s decision to grant magistrates considerably higher salary increases than those of prosecutors or state advocates. The national union of prosecutors of South Africa claimed that the director-general of the department of justice at the time, Jasper Noëth, had given an assurance that "a disparity between the salaries of the prosecutorial component and those of magistrates will never be created."315

Prosecutors at busy courts need to work between two to four hours of overtime per day to prepare properly for the next court day.316 In terms of the work-to-rule campaign, prosecutors and state advocates worked strictly according to official working hours, refusing to do any overtime. Prosecutors devoted the first few hours of their working day to prepare cases for court — something they normally did after hours at home. As a result, most courts started late and trials were not finalised as anticipated. For example, at the Johannesburg magistrate’s court, an estimated 60 court hours per day were lost because of the campaign.317 The campaign ended after three weeks, after justice minister, Dullah Omar, promised several measures to improve the position of prosecutors, including paying prosecutors for performed overtime.

In July 1997 prosecutors were disappointed when they received a salary increase of only 7.5%. According to a statement released by the society of state advocates, this was "a simple case of too little, too late."318 Countrywide, prosecutors marched and petitioned all attorneys-general to "officially and publicly support the principle that there should be parity between the salaries of magistrates and prosecutors and state advocates, as is the case everywhere else in the world."319 Prosecutors also delivered a memorandum containing their grievances to parliament. The director of parliamentary services, who accepted the memorandum, said justice minister Omar was "aware of the prosecutors’ problems, and that plans to address them were already under way."320 Omar himself responded angrily to the complaints and questioned prosecutors’ loyalty:

"To me it is a question of loyalty and commitment to justice which is at stake. Whilst salaries is important, it is often a smokescreen. During the apartheid years the same prosecutors worked themselves to death out of loyalty to apartheid."321

Omar’s comment led a Johannesburg prosecutor to lay a charge of crimen injuria (violation of dignity) against the minister, claiming that the comment had "impaired" his dignity and damaged his "credibility in the eyes of the public."322

In January 1998 the department of justice suspended overtime payments to prosecutors as the department’s overtime budget had been depleted. Many prosecutors and state advocates responded by refusing to perform further overtime without payment. Five trade unions representing department of justice employees declared a dispute with the department, which was referred for arbitration. Western Cape attorney-general, Frank Kahn, articulated his staff’s unhappiness, arguing that the overtime payments had acted as a substitute for lack of salary increases. According to a newspaper report, Omar reacted sharply to this: "I can understand Kahn’s feelings. He is an appointment of the old apartheid regime and was the head of the prosecutorial services in the apartheid years," Omar was reported as saying.323 After prosecutors went on a go-slow, Omar agreed to reinstate the payment of overtime for up to 40 hours per prosecutor a month.

By November 1998 the justice department had once more depleted its overtime budget and overtime payments were again discontinued. Prosecutors were placated by department assurances that they would receive salary increases before Christmas. However, the promised increase was not forthcoming by the time prosecutors received their December salary cheques.324 In response, many prosecutors went on a one-day illegal strike after a strike ballot had been circulated among them, bringing many courts around the country to a halt.325 (Prosecutors are legally prohibited from striking as they perform an ‘essential service’ in terms of labour legislation. Requests by prosecutors that their profession should be reclassified to allow them to perform only a minimal service in the event of a serious labour dispute have been rejected by the justice minister.326)

At the end of December 1998 the justice ministry unilaterally announced a 6% salary increase for prosecutors and state advocates, backdated to July 1998. Prosecutors were disappointed as the ministry had created the impression that they would receive increases of around 30% to achieve salary parity with magistrates. The newly appointed national director of public prosecutions, Bulelani Ngcuka, also scoffed at the increase, saying it was insufficient: "Prosecutors are entitled to more and they deserve it. I am bitterly disappointed."327 The situation was exacerbated when the justice department gave the state advocates’ salary increase to state attorneys by mistake, as a result of a computer error.328 Prosecutors embarked on a new work-to-rule campaign, lasting some two months, which ended only when justice minister Omar guaranteed prosecutors that he would "make every effort" to provide them with interim financial relief.329

In March 1999 the government and unions representing prosecutors agreed to a performance-linked salary deal.330 The office of the national director of public prosecutions called the deal historic. "Never has any union signed an agreement with the government that has been performance linked."331 According to Ngcuka:

"it took a lot of ground work and motivation to get the prosecutors to suspend their distrust of the government, as well as the distrust from the government of prosecutors, who as we all know were once the persecutors of the very people who constitute the new government. Getting both sides to agree was a tall order."332

In terms of the agreement, prosecutors received a 6% increase backdated to December 1998, in addition to their normal increases as part of an annual 6% increase for the public service from July 1999. Moreover, the agreement provided for a further 3% increase in September 1999 (also backdated to December 1998) provided the following performance targets were met:333

reducing the number of awaiting trial prisoners who were granted bail of less than R1 000 by 10%;



reducing the length of time between the first court appearance and the finalisation of the case for awaiting trial prisoners with bail of less than R1 000 to three months;



increasing the average daily time courts are in session to 4.5 hours;



reducing the number of outstanding dockets and inquest reports;



reducing the number of cases on the courts’ rolls; and



increasing the number of cases finalised with a verdict.

By May 1999 prosecutors had not received the 6% salary increase agreed upon in March, and prosecutors’ unions made an application to the high court to force the government to "immediately and correctly implement previously negotiated salary increases."334 The justice department blamed the delay on the fact that funds for salary increases for prosecutors came from the budget for the improvement of conditions of service that was administered by the department of public service and administration (DPSA). The DPSA deputy director-general, in turn, blamed the delay on "red tape and the complexity of the agreement."335 Tempers were further raised when the new justice and constitutional affairs minister, Penuell Maduna, conceded that the justice department had little chance of retaining highly skilled personnel who could earn more money in the private sector. "I don’t think there is much, if anything, we can do about it. The department had asked for a R3.5bn budget but had only been given R2.7bn," Maduna said.336

The salary saga took a further turn for the worse when there was a delay in the payment of the 3% increase, which prosecutors should have received in September (as they had met most of the agreed upon performance targets). By the beginning of December, this increase had not been paid with the justice ministry promising payment "before Christmas" — a promise that was largely kept with only a few prosecutors receiving their increases early in the new year.338

In May 2000 the unions representing prosecutors formally proposed that all prosecutors’ salaries should be linked to the salary of the national director (which, by statute, may not be less than that of a high court judge).339 In terms of the proposal, a beginner prosecutor, for example, would earn 15% of the national director’s salary, or R64 450 per year. This would be equivalent to an increase of about 17% in the annual gross salary of a beginner prosecutor.

In October 2000 salary negotiations between unions representing prosecutors and the justice department once again reached breaking point. The suggestion by prosecutors that their salaries should be linked to that of the national director was rejected. Instead the government offered an across-the-board increase of between 6% and 6.5%. After reaching a deadlock on salary negotiations, a number of prosecutors throughout the country embarked on a go-slow resulting in delays in the hearing of trials. The national director reacted angrily threatening disciplinary action against prosecutors participating in the go-slow that could lead to the suspension and even dismissal of transgressing prosecutors.

"If it means we have to start from scratch in order to build a disciplined core of prosecutors, so be it. We cannot be threatened, and cannot have this country’s democratic system held to ransom by anybody. No one is above the law, including prosecutors," Ngcuka said.339

At the end of October, Ngcuka indicated that he supported the call by prosecutors for better pay, but that the government’s salary offer would be put into effect unilaterally: "What we have received from state expenditure is only enough for us to offer 6.5% to new prosecutors and 6% to higher ranking prosecutors. We just don’t have the money to be able to offer prosecutors better pay." According to Ngcuka, the national prosecuting authority had proposed a new salary structure for prosecutors. "We need to sit down and discuss that together with the unions, and we should be in a position at the beginning of next year to implement that structure," Ngcuka said.340 Staff bodies representing the majority of prosecutors and state advocates responded to the salary announcement by declaring a labour dispute with the department of justice to be referred for conciliation.

Prosecutors were also aggrieved by the fact that no money was allegedly available to increase their pay by more than 6.5% while members of parliament had voted salary increases for themselves of between 7% and 15.5% backdated to April 2000, according to an announcement made at the end of October.341 A trade union federation commented: "The government accepts the principles that elected leaders should earn as much as their peers in business, but it asks public servants to accept wage restraints."342 The 6% to 6.5% increase came into effect in December 2000. However, due to a bureaucratic blunder, some prosecutors were not paid while others had their increase calculated on old and lower salary scales. The fault lay with the regional offices of the department of justice and the mistake was rectified. However, as a result of the mistake some prosecutors were paid their increases only in January 2001.343

Matters were further aggravated when prosecutors were not paid performance bonuses at the end of 2000. In October the national director had sent a letter to prosecutors’ offices saying that he would seek to pay every prosecutor a once-off R1 000 performance bonus at the end of 2000. When the bonus was not forthcoming the national union of prosecutors was besieged by unhappy prosecutors who had expected the bonus before Christmas. Enquiries by the union with the deparment of justice revealed that the intended bonus had not been budgeted for and that the national director had not received the necessary authorisation from the department for such an expenditure. In retrospect the department’s reason for refusing to finance the performance bonus is surprising. The department expects to underspend on its 2000/01 budget by about R47 million — about 16 times the cost of paying the performance bonus to every prosecutor in the country.344

Poor human resources management

An inherent characteristic of the prosecution service is that ambitious and competent prosecutors have only limited promotional opportunities and challenging career paths available to them. In the smaller centres with one or two district courts, prosecutors remain in their positions unless they are prepared to move house or commute over long distances to the nearest regional court.345

In the larger centres the best prosecutors are generally promoted to the level of senior prosecutors. The courtroom skills of good prosecutors, however, are wasted in such a position. Senior prosecutors rarely, if ever, appear in court. Their primary function is largely a managerial and administrative one. Most good prosecutors elect to become senior prosecutors for the better salary offered by the position, and not because they enjoy the work of a senior prosecutor more than trial work.

In the high court, junior state advocates can be promoted to senior state advocates who, in turn, can strive to become deputy directors of public prosecutions or even a director of public prosecutions. The last two positions are limited and often involve more managerial and administrative work than the conducting of trials.

For the majority of prosecutors, the potential for professional advancement is limited. Moreover, better skills and greater responsibility are often not rewarded. There is, for example, no difference in salary between district and regional court prosecutors even though the latter prosecute considerably more serious offences compared to the former.

Difficult working conditions

Many prosecutors work in old dilapidated offices, often under unsafe conditions.346 At one of the country’s busiest courts, the Johannesburg magistrate’s court, prosecutors share offices and telephones. As a result, prosecutors often consult with their witnesses outside the courtroom, sometimes in front of the family of the accused or his lawyer.347 At the Newcastle magistrate’s court, five district court prosecutors share one large office.348 In the mornings before the courts go into session, prosecutors consult with investigating officers and witnesses, and have to answer telephones which ring incessantly. This raises stress levels and prevents prosecutors from concentrating on the contents of the dockets they have to read. In one township court, 18 prosecutors share three desks and three telephone lines.349 At other centres, limited space has forced prosecutors to share offices in ageing prefabricated buildings that are uncomfortably hot in the summer months. During hard rains, water leaks through the dilapidated roofs onto files and dockets.350 Many prosecutors cannot use the phones in their offices to make direct calls to cellular phones. This can often be done only from a central phone at their office or by getting permission from a senior staff member first. Investigating officers spend much of their time away from their offices. Prosecutors who urgently need to contact an investigating officer on his cellular phone have to go through a cumbersome and time-consuming routine to do so.

Conditions are exacerbated by a lack of security at many courts, and a general concern among many prosecutors who live in crime-ridden areas about their own and their families’ security.351 In 1996 the attorney-general for the Witwatersrand local division reported that the area around the Johannesburg high court was a "dirty and dangerous environment, and the dangers have increased. A number of our staff members have been attacked and robbed in the immediate vicinity of the court building."352 In 1999 an Orlando (Soweto) prosecutor narrowly escaped death when a suspect in an armed robbery and rape case opened fire on him just outside the court hitting him in the knee. While he was recuperating in hospital, he and his family felt unsafe with unknown persons calling the hospital to ask which ward he was in. Another prosecutor at the same court was hijacked at gunpoint by suspects in a case he was dealing with. They freed him, but he withdrew charges against them out of fear.353 At other centres, prosecutors’ offices are routinely broken into and personal items and valuables stolen. In 2000 the spokesperson for the minister of justice and constitutional development claimed that members of the Western Cape-based movement, PAGAD (People Against Gangsterism and Drugs) had used the slogan ‘one prosecutor, one bullet’, an adaptation of the more well-known racist slogan ‘one settler, one bullet’.354

For prosecutors living in townships, where many crime suspects reside, and where policing resources are thinly spread and private security services non-existent, threats against them are not uncommon. They risk being attacked by thugs who regard them as sympathisers with the former regime. Says the national director of public prosecutions:

"Because of the notoriety the South African police gained during apartheid rule, prosecutors are also treated with scorn. And now the criminals seem to have switched from intimidating witnesses and police investigators to prosecutors. That’s a fatal blow to our justice system."355

Transformational problems

The process of transforming the department of justice was fraught with difficulties. The post-1994 unified department of justice inherited prosecutors from the old South African department of justice where most prosecutors were white, and the justice departments of the four nominally independent black homelands where the majority of prosecutors were black. Prosecutors steeped in the values of the old authoritarian order had to be convinced of the intrinsic values of the new democratic dispensation and a constitutionally enshrined bill of rights, which often appeared to grant more rights to crime suspects than to victims. The justice department spent millions of rands on human rights books and materials as part of a human rights training programme for prosecutors and other department officials.356 Much of this was accomplished while the justice department, like other government departments, was subjected to tight fiscal discipline.

A shortcoming of the justice department’s transformation agenda was its affirmative action policy. The policy, as it applied to prosecutors and state advocates, was badly managed and poorly marketed to those it affects most detrimentally: white and male prosecutors who often have the skills and experience that the department needs most during times of financial constraint. With the rapid turnover of staff, the skills of experienced prosecutors are at a premium. Only experienced and skilled prosecutors can adequately cope with the extra work flooding into the understaffed courts, and mentor the growing number of inexperienced prosecutors.

In the 1994-98 period, a large number of prosecutorial posts were left vacant for long periods. In late 1997, for example, there were more than 150 vacancies among prosecutors and state advocates, and a waiting list of 1 600 law graduates who wanted to fill these positions. In the office of the attorney-general of the Witwatersrand local division, the staff complement during 1997 was 58% below the norm. The lack of professional staff caused the attorney-general, Andre de Vries, to write in his annual report that "we no longer have crisis management, we only manage crises."357

One reason for the slow filling of vacant posts was the department’s desire to fill the posts in compliance with its affirmative action policy, preferring to leave posts vacant rather than occupy them with qualified white candidates.358 The 1997 annual report by the attorney-general of the Northern Cape bemoans the fact that the only post of deputy attorney-general had been left vacant for more than two years:

"Keeping the deputy post vacant for so long had an extremely adverse impact on the efficiency of the office, has seriously affected the morale at the office, and has without a doubt been one of the reasons for the spate of resignations by state advocates. Laudable as the ideal of representivity may be, the way the appointment of the deputy had been handled by the authorities has done irreparable harm to this office and cannot be justified."359

In his 1997 annual report, the attorney-general of the Witwatersrand local division complained that with affirmative action policies in place:

"if no one of the correct population or gender group is found suitable the post is left vacant and persons of merit of any other group are overlooked. Even prosecutors who supported the present government before 1994 are now becoming disillusioned and are leaving. The drain on the prosecution is severe and under the strain large cracks are opening; we are in danger of becoming a haven for the unemployed and unemployable."360

During this time a number of experienced and senior white, male prosecutors and state advocates resigned on the basis that they felt they had no future in the department.361

White concerns about their promotional prospects intensified in a well-publicised case where 16 white, male state attorneys with experience ranging from four to 21 years were excluded from consideration for appointment to 30 senior posts advertised by the justice department. Yet, a black woman with only one year’s experience in the state attorney’s office and limited experience of the law elsewhere was appointed as a deputy state attorney. The overlooked applicants took the matter to the Pretoria high court. The justice ministry contended that the discrimination was justified by two provisions in the 1993 constitution (both of which are found, in modified form, in the 1996 text). The first said that the public service should be made more representative of the population. The second authorised affirmative action.

The judge hearing the case was not convinced that the discrimination was justified on either basis. He argued that the constitution envisaged not only a more representative public service, but also an efficient one. Thus, it was only if white and black applicants were equally experienced that preference could be given to the latter in order to promote representivity without sacrificing efficiency. In addition, affirmative action measures were required not to go beyond what was ‘adequate’. They further had to take into account not only the concerns of their beneficiaries, but also the rights of others and the interests of society as a whole. According to the judge, the evidence indicated that affirmative action had been applied "without any discernible rationale", and "in fact amounted to the exclusion of the applicants on the basis of their race." Unfair discrimination had thus occurred, and the white and male applicants had been unfairly discriminated against by the justice minister and his department, the judge held.362

Justice minister Omar responded by saying that he would appeal against the court’s judgement, and that he had acted slowly in implementing affirmative action policy and had given white officials the assurance that they would not loose their jobs. "But I made a mistake. I should not have protected [the white officials]. I should not have gone out of my way for them," Omar said. The society of state advocates replied that it would be unconstitutional for the minister "to fire civil servants with white skins — it’s not a feather in his cap that he has not done this, but it’s worrying that he regards it as such."363

Matters improved when the country’s first national director of public prosecutions was appointed in mid-1998. Positions that had been vacant for some time were rapidly filled and a number of white and male prosecutors were promoted to senior positions.364 However, Ngcuka remains committed to a forceful affirmative action policy that may do little to allay white fears. Speaking to a group of senior prosecutors from around the country in early 1999, Ngcuka commented:

"If I look around this room it is obvious to me that we still have a long way to go before we more closely reflect the demographics in this country … Not only will we require vigorous affirmative action policy to achieve this but we will also need each and every person in this room to be committed to such a policy. What it means is that when vacancies open up, the people in this room will do their best to find black people with potential to fill those vacancies."365

Ngcuka’s commitment to representivity in the prosecution service, however, is tempered by his desire to retain skilled staff. He concedes that he "would have liked some of the appointments to key positions in the prosecution service to have been black. But we do not have the people. There has to be a balance between skills and representativeness."366

Between 1996 and 2000, the number of white prosecutors and senior prosecutors as a proportion of all prosecutors and senior prosecutors dropped from 53% to 36%, while the proportion of white, male prosecutors dropped from 27% to 16%. Over the same period, the proportion of black, coloured and Indian prosecutors and senior prosecutors increased from 47% to 64%. The proportion of female prosecutors and senior prosecutors increased only marginally over this period from 41% to 44% (graph 20).367

Lack of support

Prosecutors are burdened by a lack of resources limiting their ability to work as effectively as their private sector counterparts. Many prosecutors do not have effective access to even basic information technology equipment. There are prosecutors’ offices around the country without facsimile or photocopying machines.368 Many prosecutors do not have access to decided court cases on CD-ROM and up-to-date law journals, giving defence attorneys who do a decided advantage.369 In 1999 a number of prosecutors’ offices were supplied with computers and modems. However, many prosecutors have not been trained in the use of computers. As a result, many computers remain unused and are slowly ageing and collecting dust.

No electronic database for the storage of fingerprints of convicted criminals exists. If prosecutors want to ascertain whether an accused or a suspect has any previous convictions, the South African criminal record bureau manually has to check its archives, which contain a few million fingerprints. On average, it takes six to eight weeks for a set of fingerprints to be checked in this manner.

Prosecutors’ offices do not have the capacity to share relevant information between them. If a suspect is released on bail in magisterial district A, and then is suspected of having committed another offence in magisterial district B, the prosecutors’ office in the latter district will be unaware that the accused is already out on bail in the former district.

Prosecutors receive little administrative and clerical support. Most prosecutors have to write their own letters, phone witnesses, arrange appointments with investigating officers and witnesses, fax letters and documents, and maintain registers of documents, files and police dockets. Prosecutors also spend lots of time photocopying parts of police dockets on request of the defence.

Poor image

Historically, during the earlier part of the 20th century, prosecutors in the magistrate’s courts were normally drawn from the ranks of clerks who were authorised by the local magistrate to act as prosecutors. In the smaller centres, local police officers were frequently used to conduct prosecutions on behalf of the state.

During the last quarter of the 20th century, the status of prosecutors improved. Prosecutors had to have a university level legal qualification to prosecute, and police officers were used only in the deep rural areas to conduct minor trials or postponements. However, until the late 1990s, a senior magistrate had administrative control over the court where he was stationed. Consequently, prosecutors — especially at the smaller centres without senior prosecutors — were in practice in a subservient position to magistrates. The effect of this is expressed in a funny but poignant story about a senior magistrate who took a government savings campaign to heart in the late 1970s. The magistrate came to the conclusion that the staff at the court that he had to administer were using too much toilet paper. Concerned about this the magistrate confiscated all the toilet paper and locked it in a cupboard in his office. Whenever a prosecutor, a magistrate or a clerk needed toilet paper, they had to approach him to be issued with toilet paper: four pieces for a prosecutor and six pieces for a magistrate. When he was criticised about this, he remarked that "if a prosecutor needed more, he could always come back."370 Generally, prosecutors had to approach the senior magistrate to seek permission to take leave, obtain a transfer to another court, or to attend a training course. Even small day-to-day functions such as sending a fax, making a long-distance telephone call, or procuring new stationery could be undertaken only with the permission of a magistrate.

As both the administration and budgets of courts were controlled by magistrates, limited office space and office furniture were usually distributed to the benefit of magistrates and the concomitant disadvantage of prosecutors. In the busy larger court centres where office space is at a premium, it is common to find two or three prosecutors sharing a poorly furnished office, while junior magistrates have their own carpeted offices. Such disparities are also present in the allocation of parking spaces or the preference typists give to the submitted hand-written work of magistrates and prosecutors. While this may seem frivolous to the outsider, in the structured and hierarchical world of the civil service, the preferential treatment given to magistrates over prosecutors served to place the latter in a psychologically subservient position to the former.

After 1995 these unofficial disparities were exacerbated by the fact that magistrates were removed from the public service co-ordinating bargaining council with the result that the magistrates’ profession could negotiate considerable salary increases directly with the justice department. The widening salary gap between magistrates and prosecutors further served to diminish the stature of the latter.

Inadequate training

A university law course does not sufficiently prepare a graduate for the rigours of prosecuting. Most law courses concentrate on civil law and give relatively little attention to criminal law and procedure, and the law of evidence. A university degree also concentrates on theory rather than the practical application of the law and courtroom procedure, both important aspects of prosecuting.

The Pretoria-based justice college has traditionally offered functional training courses for prosecutors. Prosecutors’ courses typically ran for six weeks: the first four weeks comprised classroom tuition; during the last two weeks, students prosecuted in the district courts under the supervision of college lecturers. While useful, two-thirds of the course comprised classroom-based lectures which, in essence, rehashed what prosecutors had already been taught at university. Most of the lectures were also too theoretical, teaching prosecutors little about the day-to-day practicalities they needed to know to enable them to prosecute with confidence.371

Moreover, prosecutors were permitted to attend training courses only after they had prosecuted for six to 12 months. By then, novice prosecutors had made many unnecessary mistakes that could have been avoided if the training had been offered to prosecutors before they actually entered a courtroom to prosecute. The courses were not compulsory and many prosecutors did not attend them.372 A three-week advanced course was offered to prosecutors who had already attended the initial prosecutors’ course and subsequently acquired at least two more years of prosecuting experience. Again, this course was not compulsory. Moreover, some prosecutors were prevented from attending prosecutors’ courses as training budgets were limited and administered by senior magistrates at the courts where prosecutors were stationed. If a magistrate used the annual training budget on, for example, magistrate’s training, prosecutors were effectively prevented from attending training courses at the justice college.373 Some prosecutors — especially those working at busy courts — were not sent away for training at the justice college as this would have necessitated the closing of the court they were working in. This would have caused havoc with their court’s roll and created an unmanageable backlog of cases in their courts.374

Some of the bigger centres had a specialist training prosecutor who trained and assisted new prosecutors and provided them with information on important new legal developments. Prosecutors in the smaller centres did not benefit from such support structures. As they also did not have access to law libraries and most law journals, they experienced considerable difficulties in keeping abreast of changing legal developments. Often novice prosecutors were placed in small single-prosecutor courts where they could not seek the guidance of a more experienced prosecutor.375 In these cases, prosecutors usually relied on the advice of the magistrate they were working with. However, this served to undermine the independence of prosecutors as they relied on magistrates to teach them the practicalities of prosecuting. Moreover, with the greater separation between magistrates and prosecutors through the establishment of the national prosecuting authority in 1998, many magistrates stopped mentoring junior prosecutors.

The training of prosecutors improved after the establishment of the national prosecuting authority. All candidate prosecutors are obliged to attend and pass a six-month basic training course before being permanently appointed as prosecutors. The basic training course comprises a one-month theoretical course at the justice college and a five-month practical course that includes on-the-job training inside a courtroom where new prosecutors are trained and assisted by an experienced training prosecutor. Generally, 10 new prosecutors are allocated to each trainer for the five month period permitting considerable individual face-to-face interaction between the trainee prosecutors and their tutor.376

New legal environment

Legal presumptions

South Africa’s post-1994 constitutional dispensation guarantees the right of every accused person to be presumed innocent.377 Thus, in any criminal trial, the onus is on the prosecution to prove its case beyond a reasonable doubt. South African common law has long recognised this right. However, before 1994, a number of laws were placed on the statute books that sought to assist the state in the prosecution of certain offences. These laws created presumptions in the state’s favour by placing an onus on persons accused of certain offences that they had to rebut by proof on a balance of probabilities to be acquitted of the charges against them. The effect of such presumptions is to impose a ‘reverse onus’ on an accused to disprove an essential element of the criminal charge against him. Failure to do so, even where reasonable doubt exists about guilt, results in a conviction of the accused. After 1994 the constitutional court declared a number of these presumptions invalid and unconstitutional:

The Criminal Procedure Act of 1977 provides that a free and voluntary confession by an accused is admissible in evidence against such an accused. Where such a confession is made to a magistrate and reduced to writing, the confession is "presumed, unless the contrary is proved, to have been freely and voluntarily made" by the accused.378 An accused who made an involuntary confession to a magistrate consequently bore the onus of proving that his confession was not made freely and voluntarily. In 1995 the constitutional court ruled that this provision of the Criminal Procedure Act violated the right of every accused person to a fair trial, which includes the right to be presumed innocent, to remain silent and not to testify during the proceedings.379

The constitutional court’s ruling has had a profound effect on the work of the prosecution service — especially regional court prosecutors. Regional courts deal with serious cases and it is common for investigating officers to take suspects, who want to make a confession, to a magistrate. Since the constitutional court’s ruling, many defence lawyers argue that their clients’ confessions were not made freely and voluntarily. This necessitates the holding of a trial-within-a-trial whereby the prosecution has to prove that any confession before a magistrate was made without duress. This can be a time-consuming task as it involves the calling and cross-examination of witnesses.



The Drugs and Drug Trafficking Act of 1992 provides that, if an accused is found in possession of more than 115 grams of cannabis (dagga), it is presumed that he was dealing in cannabis and will be convicted of the offence of dealing unless he can show on a balance of probabilities that he was not dealing in cannabis.380 In 1995 the constitutional court held that this section was unconstitutional as it infringed on the right of an accused to be presumed innocent.381 The Drugs and Drug Trafficking Act also provides that, where an accused is found in possession of any quantity of an undesirable dependence producing substance, "it shall be presumed, until the contrary is proved, that the accused dealt in such substance."382 In 1995 the constitutional court also ruled this provision of the act unconstitutional because it offended against the accused’s constitutional right to silence and the presumption of innocence.383 Another provision of the Drugs and Drug Trafficking Act holds that "it shall be presumed, until the contrary is proved, that the accused was found in possession of any drug" if such a drug was found in the immediate vicinity of the accused.384 In 1998 the constitutional court declared this provision inconsistent with the constitutional right to be presumed innocent.385

The rulings of the constitutional court have made the prosecution of certain drug-related offences more difficult, especially where the prosecutor handling the case lacks experience and good cross-examination skills. For example, before the constitutional court’s ruling, it was relatively easy to convict an accused of possession of drugs even if he discarded the drugs by throwing them into a bush near where he was standing. The onus was on the accused to prove on a balance of probabilities that he had not been in possession of the drugs. Since the constitutional court’s ruling, the prosecution must prove beyond a reasonable doubt that the accused actually possessed the drugs. It is extremely difficult to obtain a conviction against an accused for possession of drugs unless the prosecution has a witness who saw the accused throwing the drugs into the bush or the police took fingerprint samples of the packet in which the drugs were wrapped. Only a skilled and experienced prosecutor may be in a position to coax the accused to concede that the drugs belonged to him through a rigorous and lengthy cross-examination process. However, this is time-consuming and possible only if the accused is willing to testify. An accused may not be cross-examined if he does not testify during his trial.



In terms of the Arms and Ammunition Act of 1969, in any prosecution for being illegally in possession of a firearm, whenever it is proved that the firearm was on or in any premises, including any building, room or vehicle, any person who was on, in, or present at or occupying such premises at the time "shall be presumed to have been in possession of the firearm at the time, until the contrary is proved."386 In 1996 the constitutional court declared this provision of the Arms and Ammunitions Act unconstitutional on the ground that it breaches the right to be presumed innocent until proven guilty.387

The constitutional court’s ruling has made it almost impossible to prosecute suspects successfully who are found near illegal firearms under suspicious circumstances. This could be where an unlicensed AK-47 (Kalashnikov) rifle is found on the floor of a bus with a dozen passengers who all claim they are unaware of how the firearm got there, or an unlicensed pistol found hidden in a hostel room occupied by four people who all insist on being ignorant of the firearm’s presence. In both cases the prosecution service has little hope of convicting anyone of possessing an illegal firearm unless the police had the foresight of taking fingerprint samples from the firearm under investigation and matching these with an occupant of the bus or hostel room.388



Until May 2000, the General Law Amendment Act determined that a person who received or acquired stolen goods (other than at a public sale) had to show that he reasonably believed that the stolen goods in his possession were legitimate.389 Where an accused was unable to dispel this onus of proof, he could be convicted of the statutory offence of receiving stolen property with the knowledge that it was stolen. The constitutional court upheld a ruling of the Witwatersrand local division of the high court declaring the reverse onus provision contained in the law unconstitutional.390 While the ruling has made it more difficult for the prosecution to obtain a conviction, the high court argued that the law remained a powerful crime-fighting tool. Under the revised law, the prosecution does not have to prove that the accused knew the goods in his possession were stolen, but only the absence of a reasonably held belief that the goods are legitimate.391 While the court has a valid argument, it is nevertheless not an easy task for an inexperienced prosecutor with limited cross-examination skills to prove beyond a reasonable doubt that an accused lacked a reasonably held belief that the goods in his possession were legitimate.

Limited use of reverse onus possible? The constitutional court has held that legislation that reverses the onus of proof, and thereby relieves the prosecution of the burden of proving an essential element of an offence, offends against the right to a fair trial. Such legislation is generally unconstitutional and can be saved only by the limitations clause in the bill of rights. According to the limitations clause, a constitutionally enshrined right, such as the right to be presumed innocent, may be limited only to the extent that the limitation is reasonable and justifiable in an open and democratic society taking into account such factors as the nature of the right, the importance of the purpose of the limitation on the right, and the relation between the limitation and its purpose.392 The constitutional court, for example, has upheld a reverse onus in a challenge to the National Road Traffic Act of 1989. The act provides that, for the purpose of proving a driving offence in terms of the act or the common law, it is presumed, until the contrary is proved, that such a vehicle was driven by the owner.393 The court held that the presumption was triggered only when criminal conduct had been proved and that it was rational to presume that owners of vehicles drive them, or are aware of who is driving them. It was not unfair to ask a driver to prove to the court that someone else was driving the vehicle. According to a 1997 amendment to the Criminal Procedure Act, an accused charged with certain serious violent crimes must be detained awaiting trial, unless he “adduces evidence which satisfies the court that exceptional circumstances exist which in the interest of justice permit the release of the accused.”394 This obliges the accused to relinquish his right to silence in order to get bail, potentially providing the prosecution with evidence against him. In a 1999 ruling, the constitutional court upheld the provision on the basis that the limitation on the right of an accused, charged with serious violent offences, to be released on bail is reasonable and justifiable in terms of the constitution’s limitations clause, taking into account the high levels of serious violent crime in the country. The court also argued that it was not dealing with a reverse onus that carries the risk of conviction despite the existence of a reasonable doubt, as the law applied to the provision of bail only.395 As a means of circumventing constitutional court rulings against the reversal of the onus in criminal matters, legal drafters use civil remedies to combat crime, as with the civil asset forfeiture provisions in the Prevention of Organised Crime Act of 1998 (see section on the asset forfeiture unit above).396 Alternatively, legal drafters seek to change the elements of the offence, as with a proposed change to the definition of rape. According to the common law definition of rape, the state must prove beyond a reasonable doubt that the complainant did not consent to sexual intercourse. A 1999 South African law commission discussion paper on sexual offences proposes that the absence of consent to sexual intercourse should not be an element of the offence of rape. While the accused would be able to raise consent to sexual intercourse as justification for his unlawful conduct, the onus of proof would be on the accused to show that such consent was in fact given.397 There has been a subtle but noticeable trend among some legal practitioners to place the constitutional rights enjoyed by accused persons into perspective and place more emphasis on the public’s right to be protected from criminals. Writing in the journal of the South African Bar in 1998, judge Kees van Dijkhorst of the Transvaal provincial division of the high court called on the courts to “stop bending over backwards to accommodate the accused.” He went on to propose the re-examining of the accused person’s right to silence as this right was detrimental to the proper administration of justice.398 In 1999 the judge president of the Transvaal, Bernard Ngoepe, suggested that some aspects of the constitution may have to be reconsidered: “People are beginning to argue that the constitution is too criminal-friendly. They say they have seen people who, despite strong evidence against them, were acquitted on mere technicalities … If, and I say if, it is the fault of the constitution that criminals escape arrest and conviction, then it must be revisited.”399 The office of the national director of public prosecutions has proposed legislative changes to compel accused persons to disclose the basis of their defence, rather than the prosecution alone being forced to divulge its case. According to a spokesperson for the national director’s office, “[c]riminals are getting away with murder. The system has to be fair; unlike now where it is heavily weighted in favour of the accused.”400

Bail legislation

A 1997 amendment to the Criminal Procedure Act significantly altered the law as it applied to the granting or denial of bail to accused persons.401 The amendment came into effect in August 1998 and places an onus on persons accused of serious violent crimes to show why they should be released on bail. To prevent an accused from dispelling the onus, the prosecution has to cross-examine the accused. This is done with the purpose of showing that the reasons advanced by the accused to be released on bail are not sufficient in terms of the law to persuade the court to grant bail. To oppose bail successfully, the prosecution is also obliged in most cases to call witnesses to show that the averments of the accused are false. For example, the prosecution would call the investigating officer of the case to testify that, contrary to what the accused claims, the accused has no fixed abode and is likely to flee should he be released on bail.

The 1997 amendment to the bail law has placed additional responsibilities on prosecutors and generally increased the number and length of time of formal bail applications taking place in the country’s courts. The impact of the amendment has been felt especially strongly in the regional courts where few formal bail applications were heard in the past. Since the 1997 amendment came into effect, bail applications in respect of accused charged with serious violent offences must be heard in the regional court unless exceptional circumstances dictate otherwise.402

Juvenile accused

A 1996 amendment to the Correctional Services Act radically altered the manner in which unconvicted young persons could be detained awaiting trial.403 According to the amendment, children under the age of 14 may not be detained in a prison or police cell for more than 24 hours after being arrested, but must be placed in the care of their parent or guardian or in a place of safety.

Children between the ages of 14 and 18 years may not be detained in a prison or police cell for more than 48 hours, unless a judicial officer has reason to believe that the child’s detention is necessary and in the interests of justice and the security of the public, and no secure place of safety is available within a reasonable distance of the court for the detention of the child. However, children aged between 14 and 18 years must be detained in a prison if they are accused of having committed a serious violent crime which would warrant such detention. Under such circumstances, children detained in prison need to be brought before the court every 14 days for the court to reconsider its detention order. For a court to make a finding that a child should be detained in prison, the prosecution must present oral evidence on the risk of the child absconding, the risk the child could pose to other children awaiting trial in a place of safety, and the disposition of the accused child to commit offences.404

The new law significantly increased the workload of prosecutors for a variety of reasons. First, cases involving child offenders are often postponed to give the investigating officer enough time to locate their parents or guardians so that such children may be placed into their care. Every postponement uses court time as the case docket has to be procured, the accused child physically brought before court, and the prosecution must address the court to advance reasons why a postponement is sought. Under certain circumstances, the prosecution also has to call the investigating officer to give evidence to the effect that the accused child’s parents or guardians are untraceable. Second, where children are sent to prison awaiting trial, they have to appear in court at 14-day intervals, a process which further takes up the time of the court and the prosecution.

Third, with age being a crucial determinant of whether an accused child is sent to prison or to a place of safety (or home with his parents), most adult accused with youthful looks claim to be under the age of 18 years. The prosecution then has to send such accused to the local district surgeon so that an age assessment can be performed. Should the accused dispute the district surgeon’s assessment, the prosecution has to lead the evidence of the district surgeon to convince the court of the correct age of the accused. As a disproportionately large number of accused are in the age group 18 to 20 years, prosecutors devote much time and effort on persuading judicial officers of the correct ages of accused persons.405

Fourth, many awaiting trial children escape from the places of safety to which they have been allocated, or abscond from the care of parents or guardians. Young accused are more likely to commit crimes in groups (such as burglary, assault, robbery and shoplifting) compared to their adult counterparts. It is not unusual for the police to arrest a group of four or five children who are all suspects in the same investigation. If even one accused from such a group disappears, the whole case usually has to be postponed until the accused is found and rearrested, by which time another accused from the same case may have disappeared. Moreover, if even one of the accused from such a group is detained in a prison, the case can be postponed for only 14 days at a time. On each postponement day, the accused, their lawyer(s), and the parents or guardians of any children who have been released into their care have to appear in court to enable the judicial officer to postpone the case correctly. The case is usually postponed every time any one of these people fail to appear in court on the allocated day.

Seven months for a guilty plea Below follows the timeline of an actual case that is symptomatic of the various factors that may delay the finalisation of a straightforward case involving a child. In this case, a 16-year old male was charged with housebreaking:
13.12.1999:	First court appearance. The case is remanded for the accused child’s guardian to be notified of the arrest of the accused and for the guardian to appear in court to assist the accused.
28.12.1999:	Guardian is not found, and the case is remanded again for the guardian to appear in court.
14.01.2000:	Guardian is still not found, and the case is once more remanded for the guardian
28.01.2000:	Guardian attends court. The case is remanded for a public defender to be allocated to the accused and for the public defender to attend court.
30.03.2000:	Public defender attends court, and the case is remanded for the accused to plead to the charge and for the witnesses to be subpoenaed for the trial
06.04.2000:	The police docket fails to arrive at court on the trial date. The case is remanded to establish whether the docket still exists (ie that it has not been lost or stolen), and for it to be given to the prosecutor.
25.04.2000:	The docket is found and arrives at court. The case is remanded for the accused to plead to the charge and for the witnesses to be subpoenaed again for the trial.
05.05.2000:	The legal representative of the accused (the public defender) withdraws from the case. The case is remanded for the accused to obtain a new legal representative.
17.06.2000:	The accused appears at court without a legal representative, but informs the court that he wants to plead guilty to the charge against him. The charge is put to the accused and he pleads guilty and is convicted by the court. The case is remanded to permit the accused to be interviewed by a probation officer who is instructed by the court to compile a report on the accused and suggest an appropriate sentence.
30.06.2000:	The probation officer’s report is not finalised and the case is remanded for the report.
10.07.2000:	The probation officer’s report is still not finalised and the case is remanded again for the report.
24.07.2000	The probation officer’s report is submitted to the court and the accused is sentenced to two years imprisonment at a juvenile detention centre.

Right to information

In the past, the information contained in a police docket was considered privileged information which the prosecution did not have to reveal to the defence. This changed in 1995 when the constitutional court ruled that the ‘blanket rule’ prohibiting an accused from obtaining access to the police docket was too wide and infringed on an accused person’s right to a fair trial.406

The ruling had far-reaching implications for the prosecution. On a practical level, prosecutors are burdened with obtaining dockets from the police and photocopying large parts of the contents of a docket to make this information available to the defence. This is a time-consuming task that cannot always readily be given to clerks as some parts of police dockets — such as the names of police informants — remain privileged information. In intricate and serious cases, prosecutors devote considerable time perusing dockets and deciding what information to make available to the defence. Dockets are also often misplaced, lost or even stolen. For example, it is estimated that 350 dockets disappeared in Gauteng alone during 1999.407 Cases are often postponed to enable investigating officers to locate them. This causes delays in the court process and burdens prosecutors with additional work.

Some accused — especially professional criminals and those working in the organised crime milieu — misuse their right to access information contained in the police docket. Such criminals familiarise themselves with the prosecution’s case in order to fabricate a defence that can exploit any weaknesses in the police’s investigations. Moreover, unscrupulous criminals use witness statements to identify witnesses who may testify against them and then see to it that such witnesses are intimidated not to testify, or to testify so badly that the prosecution’s case is fatally weakened.

With access to the written statements of state witnesses, defence lawyers can exploit any inconsistencies between the oral testimony made by a witness in court and the statement the witness gave to a police officer weeks and even months before the trial. In fact, a 1999 report compiled for the national director of public prosecutions revealed that, for high court cases, an average of 520 days pass between a case’s first appearance in court and the day the case is finalised.408 No accurate figures are available for the lower courts, but the delay is likely to be in the region of three to 12 months.

The 1995 constitutional court ruling permitting the defence in a criminal trial to have access to most witness statements enables good defence lawyers to find inconsistencies in the testimony of even the most honest witnesses. This is because witnesses cannot remember everything they observed at the crime scene months before, or because their written statements contain some inconsistencies with their actual observations. This is exacerbated by the fact that most civilian witnesses have not been inside a courtroom before. Such witnesses are often intimidated by boisterous and aggressive cross-examining defence lawyers who can make potentially good and truthful witnesses seem uncertain and contradictory in the witness box. Experienced prosecutors are usually able to rectify any inconsistencies in statements by their witnesses by carefully guiding them through their testimony. However, as has been pointed out above, the average experience level of prosecutors is low. Defence lawyers also take up large amounts of precious court time cross-examining state witnesses on trivial and minor inconsistencies between their written statements and their oral testimony in court with the hope of confusing such witnesses and thereby inflicting a fatal blow on their credibility.

Most witnesses make an oral statement to a police officer shortly after they observed the commission of a crime, or were a victim of crime themselves. At this time, most people are traumatised by what they saw — especially in cases of serious violent crimes. As a result, many witnesses give incomplete statements or leave out crucial aspects of what they observed. Moreover, many police officers are notoriously bad statement takers and have great difficulty writing down a coherent and logical statement from a witness. This is exacerbated by the fact that the police officer taking the statement is often not proficient in the language in which the statement is given.

In a courtroom environment, the correct interpretation of a word or a phrase can mean the difference between an acquittal and a conviction. In a multilingual country such as South Africa, confusion can easily arise in cases where the home languages of the witness, the police officer who writes down the witness statement, and the prosecutor are different. The importance of good and precise communication between the different roleplayers in a criminal prosecution, and a competent and experienced prosecutor, is highlighted by the proceedings in an actual rape trial. The complainant in the trial was a conservative young woman whose home language was not English. She was forced to perform oral sex on the accused before she was raped by him. In her written statement — which was in English — it was clear that her assailant forced her into performing oral sex on him. The prosecutor in the case did not have the time to speak to her before she gave her evidence. When he called her to the witness stand to testify against the accused, she made no mention of the oral sex because, as she revealed later, she was embarrassed to talk about it in the open courtroom. She also did not think this was an important aspect of the state’s case, as the main charge against the accused was one of rape only. According to the prosecutor of the case, there was a real danger that he could have lost the case if the complainant left out such an important aspect of her written statement. The experienced lawyer defending the accused would have undoubtedly raised this, and claimed that the complainant was fabricating her version of events. His client’s defence was that he had gone out with the complainant for some time, that they had consensual sex on the day in question, and that she was charging him with rape out of malice for breaking their relationship.

Frustrated, the prosecutor sought to prod his witness into testifying about what happened to her prior to her rape. At the risk of being reprimanded by the magistrate for asking a leading question, the prosecutor asked her directly whether she had engaged in oral sex with the accused on the day she was raped. She vehemently denied this. The prosecutor asked her the question in some other ways, but always received the same response. Eventually out of desperation, and sensing that his witness seemed confused by his questioning, he asked her whether she had ever before engaged in oral sex. She responded shyly by saying that she had done so on the odd occasion, but then only with her close girlfriends. It was only then that it occurred to the prosecutor that his witness did not know the true meaning of oral sex. She thought that it meant talking intimately about sex, not performing an actual sexual act. Realising this, the prosecutor managed to salvage his case by explaining to his witness what he meant by oral sex. He then asked her to tell the court whether she had ever engaged in such an act. Having finally understood the meaning of the question, she told the court what happened on the day of her rape.

Quality of police work

The success of a prosecution is largely determined by the way a crime is investigated by the police. A poorly investigated case where no statements are taken from potentially corroborating witnesses, incomplete or inaccurate statements are taken, or where evidence is obtained in an illegal manner, is likely to result in the acquittal of a guilty accused. Even a good prosecutor — let alone an inexperienced one — will find it difficult to salvage a case where crucial aspects of its investigation are flawed. An experienced prosecutor will detect such flaws in most instances before a badly investigated case goes to court for trial. However, even under such circumstances, it is time-consuming for a prosecutor consistently to have to double-check the investigations of the police.

Since 1994 prosecutors have become increasingly reliant on properly investigated cases. The bill of rights guarantees every accused the right to a fair trial with the result that laws that used to place an onus on accused to disprove certain allegations against them have largely been declared unconstitutional (see ‘legal presumptions’ above). The courts have also become more reluctant to accept evidence that is obtained under suspicious or unlawful circumstances.

Many prosecutors argue that the general quality of the police’s detective work declined in the post-1994 period.409 This was partly to be expected. Before 1994 the South African Police (SAP) used authoritarian policing methods and tough law enforcement strategies to combat crime. Frequently using a ‘confession-driven’ approach to solving crimes, many SAP detectives were more concerned about getting crime suspects convicted than upholding the law and conducting investigations in a legally correct manner.410 Moreover, by the late 1980s and early 1990s, much of the operational focus of the SAP shifted from combating crime to repressing political opponents of the government.

After 1994 the newly formed SAPS was burdened by the amalgamation of the old SAP and a number of homeland police forces, and by having to adapt to a new constitutional order based on the rule of law. A liberal bill of rights granting constitutionally entrenched protection to those accused of having committed a crime requires that the police investigates all crimes in a procedurally and legally correct manner. Moreover, because of poor pay, transformational problems, a dangerous working environment and tempting employment opportunities in the burgeoning private security industry, many experienced detectives left the SAPS.411 The departure of experienced personnel and the consequent decline in the experience level of the average detective detrimentally affect the operational effectiveness of the courts and the prosecution service. As one senior official at the Johannesburg magistrate’s court comments:

Flawed investigations lead to acquittals In 1999 an accused charged with assault, robbery and murder was acquitted in the Cape Town high court because of discrepancies between the testimony given by the various police witnesses, and unsatisfactory evidence given by a key police officer in the case. Rejecting the evidence handed to the court by the police, the judge, Dennis Davis, said it was unfortunate that during the apartheid era, police had relied almost exclusively on confessions to obtain convictions. They generally ignored other forms of detective work which could have produced suitable evidence for court. The old approach could not continue because the constitution demanded a form of policing that took the accused’s right to a fair trial into account. In his judgement, judge Davis said: “There is a need for a major campaign to ensure that the police move away from confessional policing and towards investigative techniques which are congruent with civilised and efficient standards of policing as required by the constitution … If the courts were to accept improperly obtained statements they would encourage policemen to resort to vicious and evil practices. Due process is essential to the wellbeing of society.”415 A man charged with the possession of explosives, including grenades (and with possible links to PAGAD) was acquitted in the Cape Town magistrate’s court in mid-1999 because of procedural deficiencies in the police’s investigation of the case. The trial magistrate said the police had unlawfully searched the house of the accused without the necessary search warrant – which they could easily have obtained. The search without a warrant had been “blatantly unconstitutional … and was typical of the state of our country’s criminal investigation system,” the magistrate said.416

Snowball effect

Many of the problems besetting the South African prosecution service are not new. The remuneration of prosecutors has never been very good, human resources management in the service has always been poor, and the practical training received by prosecutors has been inadequate for some time. Moreover, some of the problems are not unique to the South African prosecution service and exist in one form or another in many prosecutors’ departments throughout the world.

However, taken together, the reasons listed above to explain the poor performance of the prosecution service have undoubtedly had a major debilitating effect on prosecutors’ performance. The reason for the fairly dramatic decline in the performance of the South African prosecution service in the 1990s has not been the existence of one or two problems only, but the conglomeration of all the factors discussed above. It is this combination of problems occurring more or less concurrently, coupled with consistently rising levels of crime, that severely undermined the ability of the prosecution service to function effectively.

For example, the departure of experienced personnel has plagued the prosecution service for some time. However, prosecutors tended to stay in their posts for longer periods before resigning in the past. The scale of resignations — approximately every third prosecutor resigned over a five-year period in the mid-1990s — was larger than anything previously experienced by the modern South African prosecution service. In the past, therefore, new and inexperienced prosecutors had a better chance of receiving enough assistance and guidance from their more experienced colleagues (and magistrates) to enable them to become proficient prosecutors without any formal prosecutorial training.

With the large-scale resignations in the mid-1990s, new prosecutors often have difficulties finding a sufficiently experienced colleague to provide them with reliable advice or assistance when they are faced with an unexpected problem in their daily work. Obviously most larger court centres have experienced prosecutors. However, because of the substantial workload, the small number of experienced prosecutors are frequently stretched to capacity, dealing with their own cases and other managerial responsibilities. Because of the stricter separation of the magistracy from the prosecutorial profession, most magistrates are loath to assist inexperienced prosecutors to the extent that they did in the past.

Today’s new prosecutors are also faced with a bigger workload, a tougher legislative environment, and generally poor investigative work by police detectives. In the past, new prosecutors remained in the district courts for some time, prosecuting relatively minor crimes such as traffic offences and shoplifting where they could afford to learn from their mistakes. The acquittal of a driver guilty of ignoring a stop street or a shoplifter who stole a shirt is unfortunate, but unlikely to have any significant impact on public safety or the administration of justice in the country. Because of a lack of experienced personnel relatively inexperienced prosecutors are currently more rapidly promoted than what was the case in the past. It is, for example, not unusual for a prosecutor with 12 to 18 months experience to work in a regional court, handling murder, rape and armed robbery cases. The acquittal of persons guilty of these serious crimes invariably impacts on the public’s confidence in the criminal justice system and public safety generally.

Once the number of resignations and workload levels reach a certain point, the decline in the performance of the prosecution service can quickly snowball out of control. For example, compared to a more experienced colleague, an inexperienced prosecutor invariably requires more time to prepare and finalise a trial. The larger the proportion of inexperienced prosecutors at a busy court centre, the longer trials take to be finalised and the greater the backlog of cases that builds up. The greater the backlog of cases, the more cases are placed on a court’s roll with the result that many cases are not finalised on their allotted days. Prosecutors consequently spend increasing amounts of time postponing incomplete cases and placating witnesses and crime victims frustrated about the delays in the court process, instead of prosecuting and finalising trials. As a result, even fewer cases are completed and the backlog in the number of incomplete trials increases further. Moreover, the longer the delay in the completion of a trial, the greater the likelihood that witnesses forget important aspects of their testimony or that accused abscond. This causes further delays as prosecutors have to spend more time interviewing witnesses and reacquainting them with their written statements, and the police on tracing and arresting absconded accused. As this process intensifies, prosecutors spend less time on prosecuting criminals, and increasing quantities of energy on dealing with postponements and irate witnesses. This invariably has a frustrating and stressful effect on prosecutors, enticing those with sufficient skills and experience to seek employment elsewhere. Consequently, the proportion of inexperienced prosecutors rises even further, exacerbating the vicious spiral that causes the prosecution service to become increasingly ineffective and demoralised.