Doing the possible

It should be clear by now that the performance of the South African criminal justice system as a whole can be substantially enhanced only if the effectiveness of the prosecution service is also improved. As long as the prosecution service functions poorly, crime will continue to pay for the unscrupulous as a large proportion of criminals are acquitted, or not even prosecuted, of the crimes they commit. This negatively affects public faith in the prosecution service, the courts and the whole criminal justice system. One of the more serious consequences of the public’s disillusionment with the ability of the state to punish those guilty of committing crimes is rising sympathy and even support for vigilantism and crime victims taking the law into their own hands.417

A poorly performing prosecution service detrimentally affects the ability of the prison system to rehabilitate the prisoners in its care. If prosecutors process cases slowly, or do not apply their minds properly to accused persons’ request for bail, the number of awaiting trial prisoners who are housed in the jails of the department of correctional services increase to unmanageable levels. If prosecutors fail to convict many of the guilty accused who have been tracked down and apprehended through much effort by the police and its detective service, police morale is lowered and precious police resources are wasted. Given the central role of the prosecution service in the criminal justice process it is crucial that it functions both efficiently and effectively to enable the whole system to operate smoothly.

The good news is that it is possible to improve the effectiveness of the prosecution service substantially. There are a number of reasons for this. First, compared to the other core criminal justice departments, the prosecution service is small. The SAPS employs approximately 125 000 people (of which 105 000 are police officers), and the department of correctional services employs some 30 000 prison warders. The South African prosecution service, by comparison, is made up of just under 2 500 prosecutors and state advocates.418 Personnel-related and transformational problems should therefore be more manageable and quicker to address in the prosecution service than in the police or prison service.

Second, unlike virtually all other government departments, the prosecution service is staffed exclusively by university graduates. All prosecutors possess at least a B Juris degree, with many holding a Bachelor of Laws (LLB) degree. The prosecution service is consequently staffed by personnel who have the attributes of university graduates: a high level of theoretical training, the ability to learn and work independently, discipline, and above-average levels of intelligence.

Third, the national prosecuting authority has identified most of the weaknesses and problems that impinge on the ability of the prosecution service to function effectively. Little time and few resources consequently need to be expended on identifying such weaknesses and problems. There is also general unanimity among the staff in the office of the national director of public prosecutions, and prosecutors working in courts throughout the country, about what the major obstacles are that need to be removed to rectify the situation in the prosecution service. There is thus no need for drawn-out internal debates and discussions about identifying the problems that are besetting the prosecution service.

Fourth, the creation of a new national structure in terms of the national prosecuting authority under the leadership of a national director in mid-1998 has given prosecutors a significant political voice. The national director initially also managed to boost the morale of prosecutors. It is crucial, however, that the new structure is able to deliver and boost the performance of the prosecution service without undue delay lest prosecutors lose faith in the ability of the national prosecuting authority to make a difference.

Improved and diversified remuneration

Better salaries are affordable

There is little doubt that one of the primary reasons underlying the high staff turnover in the prosecution service — and the resulting low experience and performance levels of prosecutors — are the inadequate salaries paid to prosecutors. A careful analysis of the national budget and the government’s expenditure priorities reveals that a substantial salary increase for prosecutors is affordable.

In mid-2000, the annual salary bill for the country’s prosecutors was R252 million.419 Over the 2000/2001 financial year (including a salary increase backdated to July 2000), the national salary bill for prosecutors is estimated at approximately R263 million.420 The claim by the state treasury and the department of justice that a substantial salary increase for prosecutors is unaffordable, is not supported by the facts. In the 2000/2001 budget year, the total annual salary bill for prosecutors amounted to about 10% of the justice department’s budget, and about 1% of the money spent on the three core departments of the criminal justice system (safety and security, justice and correctional services). Prosecutors’ salaries amounted to only 0.0001% (or a ten-thousandth) of state expenditure for the 2000/2001 budget year.

During times of slow economic growth and limited state resources, the finance minister has the unenviable task of distributing a limited budget to needy government departments. The money spent on the prosecution service has to come from somewhere. Every additional rand spent on prosecutors means one rand less for someone or something else. It is not being suggested that fewer houses are built for the poor or that less money is spent on education to enable the government to boost the salaries of prosecutors. It can be argued cogently, however, that crime is of foremost concern to all South Africans. There is also little doubt that the safety of South Africans, the viability of South Africa as an investment and tourist destination, and even the stability of the state (considering the prevalence of organised crime, urban terrorism and vigilantism) are threatened by persistently high levels of serious and violent crime. Given the importance of reducing crime in South Africa, state expenditure on issues less important than an effective prosecution service needs to be lowered.

South Africa faces no discernible military or naval threat in the foreseeable future. Yet, in terms of a cabinet decision made in late 1998, South Africa will procure defence force equipment to the value of at least R30 billion over the next few years.421 In terms of the procurement package, South Africa will purchase, among others, three submarines and four corvettes. The purchase price of either one submarine or one corvette is equal to almost seven times the annual salary bill for all the prosecutors in the country (graph 21).422 In other words, the savings that would result from the purchase of either one submarine or one corvette less would allow the state treasury to finance a doubling of prosecutors’ salaries for a three-year period.

All prosecutors below the level of director are public servants whose salaries are determined by the justice minister after consultation with the national director of public prosecutions and the minister of public service and administration, and with the concurrence of the minister of finance.423 It is argued that it is difficult for the state to provide prosecutors with substantial salary increases without granting such increases to all other public servants of similar rank. There are a number of arguments to be made for treating prosecutors differently in terms of salaries and conditions of service, compared to public servants generally. First, the reduction of crime is one of the most important goals of the vast majority of South Africans, and the prosecution service plays a crucial role in the state’s fight against crime. There is little doubt that low salaries are one of the main reasons for the large number of resignations of prosecutors that directly affect the effectiveness of the prosecution service. Second, the formal qualifications and skills of prosecutors are directly transferable to the legal profession in the private sector, and the services of good prosecutors are in demand by law firms. This cannot be said for most other public servants. The skills and qualifications of prison warders, soldiers, diplomats, or even teachers cannot be transferred to the private sector as easily, nor is there as great a demand for their services in the economy. Third, prosecutors’ salaries are low compared to that of their private sector peers. This is not the case with most other public servants. For example, most private security officers do not earn better salaries than police officers, and only teachers working at the best private schools receive substantially better remuneration packages than their public sector counterparts. Finally, the constitutional provision that the prosecuting authority "exercises its functions without fear, favour or prejudice" implies that there should be some separation between the country’s executive and the prosecuting authority. Such a separation would be underscored by removing the prosecution service from the public service as was done with the magistrates’ profession in 1995. Moreover, the salaries of the national director, deputy national directors and directors are linked to that of a high court judge. There seems to be no logical reason why the salaries of all prosecutors should not be linked in this manner.

Reward competence

The existing salary structure for prosecutors rewards loyalty over competence and ability. The longer a person works as a prosecutor, the higher his salary tends to be. In theory there is some merit in such a system as it seeks to encourage prosecutors to remain in the prosecution service, thereby retaining their accumulated experience and knowledge. In practice, however, the best prosecutors are not always those who have been in the system the longest. Moreover, good prosecutors, whose skills are in high demand in the private sector, are generally unlikely to stay in the prosecution service to benefit from the higher salaries offered by the system to those who remain long enough.

A district court prosecutor with 10 years’ experience earns more than twice as much as a specialist regional court prosecutor with two years’ experience. The responsibilities of a district court prosecutor are limited, however. A district court deals with relatively minor offences and can impose a maximum period of three years’ imprisonment only. A specialist regional court prosecutor, by contrast, is likely to work in a court dealing with serious and difficult to prosecute offences such as car-hijacking, fraud involving large sums of money, or sexual offences committed against children. An accused convicted by a regional court can generally be sentenced to a period of imprisonment of up to 15 years. Because of the different sentencing jurisdictions of the two courts, it is also the case that specialist regional court prosecutors are often opposed by first-rate lawyers while accused in the district courts tend to be defended by junior attorneys. Good regional court prosecutors are thus on a par with — if not better than — the best criminal trial lawyers from the private sector.

In the above example, the reason why the former prosecutor works in a district court after 10 years of service is either because he works in a small town or rural area where there is no regional court, or because he lacks the skills and ambition to prosecute at a regional court level. To have been promoted to a specialist court after two years of service, the regional court prosecutor is likely to be skilled and competent. While the prosecution service would benefit more from retaining the skills of the regional court prosecutor than his district court colleague, it is the latter who is paid more. The regional court prosecutor is relatively poorly paid within the prosecution service, and his ability and skills are in greater demand by the legal profession in the private sector. The prosecution service is consequently more likely to lose the services of the regional court prosecutor than those of his district court colleague.

Since mid-1999 the court management unit of the national prosecuting authority can track the performance of individual courts. The unit also has a database of all prosecutors in the country, their experience levels and academic qualifications. The unit has proposed the development of a ‘personal performance management system’ to establish personalised job descriptions for every prosecutor in the country.425 Performance targets could then be set for individual prosecutors on the basis of, among others, their qualifications, skills, workload, experience levels and access to administrative and clerical support. Performance targets would have to be determined and negotiated between individual prosecutors and their seniors. This will inform prosecutors of what is expected of them, and put them in a position where they can elect to achieve or even exceed their agreed upon performance targets. Promotions and bonuses could then be linked to prosecutors meeting, or ideally exceeding objectively verifiable performance targets that are selected in an equitable and transparent manner.

In conjunction with prosecutors and their unions and staff associations, the court management unit should place a weighting on a variety of performance-related variables that could influence salary levels. For example, in addition to the current one variable that links salaries to experience levels, variables measuring prosecutors’ work output, and the type of court they are working in should also determine the level of remuneration they receive. Variables of which the attainment is of greater benefit to the prosecution service and the criminal justice system as a whole, such as prosecution and conviction rates, should carry more weight than variables of which the attainment is of limited benefit to the system, such as the neatness of a prosecutor’s office. In this way, prosecutors will be motivated to perform well at aspects of their work that can make the greatest impact on the state’s fight against crime.

Regional salary variations

Because of its limited resources it is unlikely that the state will ever be in a position to match the remuneration of all state prosecutors to that of their private sector peers. Given this limitation, what should be done to enable the prosecution service to retain the skills of the best prosecutors?

First, there should be a correlation between prosecutors’ remuneration and their skills and responsibilities. Generally, regional court prosecutors should be better paid than their district court counterparts. Applying the same principle, good specialist prosecutors who deal with, for example, intricate fraud prosecutions involving millions of rand or serious cases of child abuse, should earn more than prosecutors who deal with car theft or housebreaking cases.

Second, prosecutors working in the larger urban areas should earn more than those working in smaller towns and in rural areas. There are a number of reasons why such a system is not as unfair as it may appear, and would reduce the number of good prosecutors who leave the prosecution service to take up offers of employment in the private sector:

Urban courts tend to be busier than courts in smaller towns and rural areas. The number of cases and decision dockets an urban prosecutor deals with in an average month is higher than in less populated parts of the country. Generally, large cities also produce a greater variety of serious crimes than smaller towns and villages. For example, computer-related fraud, cash-in-transit heists, crimes involving organised crime syndicates, and car-hijacking cases are more prevalent in the large urban centres compared to more rural areas. Moreover, as cities generate more wealth and employment opportunities for the legal profession than rural areas, the best defence lawyers tend to be located there. Prosecutors working in the large urban centres are consequently frequently opposed by skilled defence lawyers, especially in respect of accused who are involved in the organised crime milieu — which is more prevalent in urban areas. This is less the case in more rural areas where crime suspects have less money and fewer good defence lawyers to choose from. Urban prosecutors thus have to develop levels of expertise often not required of their small town and rural colleagues.



Because cities generate greater economic activity and crime, they contain more lawyers and law firms. City lawyers earn more than their small town and rural counterparts. The salary differentials between prosecutors and defence lawyers are highest in the metropolitan areas. Urban prosecutors consequently have more opportunities of obtaining not only employment in the private sector, but also of substantially improving their salaries should they do so.



The cost of living is higher in the larger cities compared to smaller towns and villages. Property prices, rentals, transport expenses and insurance costs are considerably higher in the cities. Difficult to quantify quality-of-life costs also tend to be higher in the larger cities. For example, a prosecutor working at the Johannesburg magistrate’s court is likely to live in an affordable suburb or township some 30 to 50 kilometres away. Such a prosecutor will spend, on average, one to two hours per day travelling to and from work. If the prosecutor is using his own vehicle, he will have to contend with parking expenses, wear and tear on his vehicle, substantial petrol costs and high vehicle insurance costs applied in the Johannesburg area. By comparison, a prosecutor working at the Springbok magistrate’s court in the Northern Cape is unlikely to live more than a five to 10 minutes drive away from his place of work. The Springbok prosecutor not only saves a lot of money on lower transport and living expenses, but has some five to 10 hours (about the equivalent of a working day) more free time per week.



Prosecutors working in a small town or village generally are more esteemed and respected members of the community than their city colleagues. In a small town, a prosecutor is part of a small university educated élite whose stature is further emboldened by the fact that he would have spent some years in the city to attend a university to obtain a law degree. The earnings of a prosecutor working in a small town are high in relation to the those of the community in general. A prosecutor working in a small rural town in the Northern Cape is likely to be among the top 5% of earners in his community. A city prosecutor, however, is just one of many university educated people in his community with a fairly ordinary income for a white-collar worker. In the northern suburbs of Johannesburg most executive secretaries earn more than prosecutors with less than six or so years of experience.



Rural and small town courts are frequently single prosecutor courts (there are 149 such courts in the country). In such courts, a prosecutor’s court day ends once the trials for the day are finalised. At regular intervals — a day every week or fortnight — the magistrate at such a court deals with civil trials. On such days, the prosecutor does not appear in court. The prosecutor at a court with only one courtroom spends more time out of court compared to his urban colleagues. Out-of-court work is less stressful and provides a prosecutor with time to peruse police dockets and prepare for forthcoming trials. District court prosecutors in busy urban courts rarely have this luxury. Once their court’s trials are completed for the day, they assist their colleagues by taking on trials that other busier courts are unable to finalise on that day.



A prosecutor at a small rural court quickly gets to know the individual police officers and detectives. Such a prosecutor is able to build up a good and often personal relationship with many of the police officers who bring cases to court and who testify in court. In the investigation of serious and complicated cases, the prosecutor can provide his input and guidance to the police on a sustained basis, thereby ensuring that the investigations meet all the legal requirements to enable their successful prosecution. In a small town or village, a prosecutor can also assist and guide those police investigators in his district who lack the skills or knowledge to investigate cases properly. A prosecutor working in a small court consequently has the advantage of knowing which police officer’s investigations he can rely on and whose work does not need to be double-checked for possible mistakes. A prosecutor at a busy urban court deals with a much larger number of police officers and is frequently confronted with police dockets containing investigations conducted by officers he does not know. Such a prosecutor has to spend a greater proportion of his time checking the work of investigating officers whose dockets he has to use for the purposes of prosecutions.



In a small town or village, where there are only a small number of police officers, it is a relative easy and fast process to trace a lost police docket, or for a prosecutor to obtain a docket from the police station. In a large urban court, lost dockets are not easily traced and it can take a day or more for a prosecutor to obtain a docket from one of the many police stations serving the court he works in. In a small town, police officers often do not have to travel far, for example, to confirm the address of an accused in a bail application, to find the guardians of a juvenile accused, or to verify an unexpected alibi of an accused. In a large urban centre, where travelling times are longer and the anonymity of the city permits an accused to live at an address where he is unknown even to his neighbours, it often takes the police longer to accomplish such tasks. This can contribute towards delays in the court process at urban court centres.

It is not suggested that prosecutors at small rural courts have an easy working life. Rural courts are usually far away from the closest prison. As a result, trials and bail applications are often delayed as court staff have to wait for prisoners to be transported to court. In villages where there is only one court, the lone prosecutor has no one to turn to for advice or assistance, other than picking up the telephone and consulting his senior. Such a prosecutor is also obliged to fulfil all the functions of a prosecutor from discussing traffic fines with members of the public and negotiating maintenance payments with defaulters, to conducting trials and inquest enquiries. For these reasons, it is often difficult for the prosecuting authority to fill vacancies in small rural courts.

Nevertheless it should be clear from the factors above that prosecutors in the larger cities should generally be paid more than their rural counterparts, because prosecutors in the large metropolitan centres tend to have a larger workload and higher cost of living expenses. Moreover, in the urban centres, there is a bigger private sector market demand for good prosecutors. The lower the salaries of prosecutors, the greater the likelihood that the best will leave the prosecution service to join a law firm or go into private practice. Both in the interest of an equitable remuneration regime and an effective prosecution service, regional salary differentials should be introduced. Great care will need to be taken, however, in implementing such a diversified salary system lest it creates undue tensions between urban and rural prosecutors. Any such changes in the salary regime will have to be negotiated with prosecutors’ unions and based on objectively verifiable criteria.

No broken promises

Social scientist, J C Davies, in an article entitled ‘Towards a theory of revolution’, argues that the cause of revolution and social unrest can be traced to a psychological factor: the relative deprivation subjectively felt by a given population group:426

"Revolutions are most likely to occur when a prolonged period of objective economic and social development is followed by a short period of sharp reversal. People then subjectively fear that ground gained with great effort will be quite lost. Their mood becomes revolutionary."427

In the period of sharp reversal, a sudden and in many cases intolerable gap comes about when people begin to realise that their expectations will no longer be fulfilled. In other words, there is an increasing discrepancy between what ‘is’ and what in the people’s minds ‘ought’ to be in the period of reversal. Essentially, Davies expounds a ‘J-Curve’ theory as an explanation of revolution. "Revolutions need both a period of rising expectations and a succeeding period in which they are frustrated."428

It is not being suggested that South African prosecutors are budding revolutionaries. Interviews with prosecutors, however, do suggest that the morale of prosecutors is at its lowest at the point where promises of salary increases are reneged on. This is because promises and even intimations of salary improvements bring about a period of ‘rising expectations’ among prosecutors. When such expectations are frustrated, feelings of anger and dissatisfaction set in, leading to go-slow campaigns, wild-cat strikes, lower levels of productivity and the resignation of prosecutors from the prosecution service. This partly explains the high number of resignations after 1994. In the post-1994 period, especially with the creation of the national prosecuting authority, prosecutors were convinced that their salary demands would be given the necessary attention by the government for the first time. When this did not come about, prosecutors’ disillusionment was greater than it would have been if their expectations had not been raised in the first place.

To prevent, or at least limit periods of disillusionment and anger, it is crucial that official pronouncements about salary increases and better service conditions for prosecutors are made with the utmost care. It would be better for government officials to avoid making any promises, or give any assurances about improving salaries if there is even the slightest likelihood that such promises and assurances cannot be met. Once made, all promises should be met down to the last detail. If, for example, a promise is made to increase salaries by 10% ‘before Christmas’, then an increase of 9.5% on 25 December is not acceptable. Promises need to be kept or else not made at all.

Career management

Young ambitious graduates want to be able to develop their careers in an ongoing manner. This is difficult in the public service where top positions are limited and promotions are determined as much by seniority and length of service as by skills and ability. This is also the case in the prosecution service. By law, there is only one national director and four deputy national directors of public prosecutions. If the incumbents of these offices only retire in 10 years’ time, then even the most skilled and ambitious director of public prosecutions will have to exercise patience should he want to be promoted to one of these positions. Given these limitations, what can be done to provide law graduates with a rewarding career in the prosecution service?

There should be enough different positions within the prosecution service to provide prosecutors with a wide range of promotional opportunities and areas of specialisation. Much has been achieved in this regard since the establishment of the national prosecuting authority. The ranks of chief prosecutor, deputy national director and national director have been established. Specialised positions, such as those of investigating director and special director, have also been created. Specialised units, such as the asset forfeiture unit or the sexual offences and community affairs unit, have been set up. Compared to the position before 1998, prosecutors have a wider choice of career paths and more areas of specialisation in which to develop and hone their particular skills. More needs to be done, however.

In the private sector, employees develop their careers by learning new skills and taking on more responsibilities. Employees are enticed to develop their careers through financial incentives and the greater prestige more demanding and responsible positions bring. Similar principles should apply in the prosecution service. Prosecutors who take on more work and greater responsibilities should not only earn more, but should also be rewarded in other ways to enhance the prestige of their more demanding positions. District court prosecutors who become regional court prosecutors, normal prosecutors who become control prosecutors, or general prosecutors who become specialist prosecutors for difficult to prosecute offences, should be rewarded financially with higher salaries. Other enticements and rewards should be offered to prosecutors who progress in this way. For example, as far as practical, every specialist fraud prosecutor should have a laptop computer with the necessary software to be able to access documents, relevant court decisions and statutes quickly during the course of a trial. A fraud prosecutor should also be entitled to attend appropriate training courses and seminars to develop and enhance his skills and remain up-to-date with the latest methods and techniques of fraud syndicates.

Because incentives not only reward but also entice, care will have to be taken that prosecutors are not accepted for positions for which they lack the skills and experience. Promotions must never occur automatically. Promotions should be granted only to those prosecutors who have the ability and aptitude to excel in the positions they have applied for. Once promoted, prosecutors will have to meet certain minimum performance targets. Should prosecutors fail to perform adequately, it must be possible to demote them back to the position they were in before their promotion. Such a hard-line approach will serve to enhance the status of responsible and specialised positions in the prosecution service. It will be common knowledge that such positions are occupied by the best prosecutors. This will provide ambitious young prosecutors with a career goal to work towards, while the incumbents of such positions remain motivated by the benefits of these positions.

More emphasis needs to be placed on career development and human resource planning in the prosecution service. After a person has worked as a prosecutor for a year and has a good grasp of what the work of a prosecutor entails, he should be assisted by a professional human resources specialist to identify his interests, strengths and weaknesses. Such a prosecutor should receive the necessary assistance and guidance in planning a medium to long-term career path in the prosecution service. Once this has been accomplished, assistance in the form of training courses and professional development training should be provided to assist all prosecutors in advancing their envisioned careers within the service. This will enable the prosecution service to develop better prosecutors, boost morale among its professional staff, and retain the services of its good and ambitious prosecutors.

Presently, long-serving prosecutors can advance beyond a certain salary ceiling only if they successfully apply for senior positions, such as that of senior public prosecutor or chief prosecutor. Many senior positions in the prosecution service primarily revolve around office-based managerial and administrative functions. A chief prosecutor, for example, never appears in court to prosecute a case, while a senior public prosecutor does so only very rarely. The litigation and courtroom skills of many experienced prosecutors are lost once they are promoted to senior positions where they have to focus their energies on office-based work. Prosecutors generally acquit themselves well in court because they enjoy prosecuting. The adage that people are good at what they enjoy doing is valid for prosecutors. Yet, for prosecutors to advance their careers and improve their salaries, the system obliges them to sacrifice that part of their work at which they excel. This is demoralising for the prosecutors concerned and undermines the effectiveness of the prosecution service. This is exacerbated by the fact that many good prosecutors are not good managers or administrators. This is not surprising as prosecutors are trained in the law and rarely have any management training or qualifications. Senior managerial and administrative positions in the prosecution service should be filled by people with the necessary training and qualifications. This would release many able and experienced prosecutors from their desk-bound positions and permit them to do what they are good at: prosecute offenders. It is crucial, however, that the relatively low salary ceilings for court-based prosecutors are abolished. There is no logical reason why, for example, a good and experienced specialist fraud prosecutor dealing with cases involving millions of rand should not be able to earn as much, and more, as a senior public prosecutor or even a chief prosecutor.

Humdrum duties of a deputy director A deputy director of public prosecutions earns a gross salary of between R264 410 and R292 402 per year, depending on the level of experience. An average deputy director is likely to have between 10 and 20 years of prosecutorial experience, much of it prosecuting serious cases in the high court. A deputy director reports directly to a director of public prosecutions. It is consequently the second highest ranking position in the office of the national prosecuting authority for a particular seat of the high court. A 1999 study of the offices of the directors of public prosecutions revealed the extent to which a deputy director at one of the offices was responsible for administrative duties.429 The duties of this particular deputy director included:

checking the telephone register on a monthly basis, that is, checking that trunk calls were made for official purposes and, if not, that the costs were recovered from callers personally;



authorising orders for items such as stationery and furniture;



authorising payment requests;



checking the furniture register monthly, ie checking that the furniture appearing in the register is in fact present and that the furniture is in the office to which it has been allocated;



checking the fax register monthly – for the same reason as checking the telephone register;



checking the overtime register on a monthly basis;



checking circulars of the director of public prosecutions to ensure that these have been compiled and sent to the various prosecutors’ offices in the region;



checking the confidential correspondence register;



checking the register of important keys; and



preparing the monthly budget and expenditure reconciliation.

Reducing the workload

Saving time and money

From the available evidence it is clear that there are too few prosecutors to deal effectively with the work that comes their way. The solution is to appoint more prosecutors. This is an expensive solution and one that will make a difference in the medium to long term only. Newly appointed prosecutors lack the experience and practical skills to prosecute serious offences effectively during the first few years of their appointment.

The proposals that follow below, if implemented correctly, can reduce the workload of prosecutors in the short and long term. Some of the proposals have the added advantage of specifically seeking to reduce the amount of time prosecutors spend on activities that are peripheral to their primary function. It is the core function of the prosecution service to guide the police in their investigations and prosecute guilty accused successfully. Much of the time and energy of prosecutors are consumed by administrative and clerical matters, and dealing with petty offenders who often do not need to be tried, convicted and punished by a formal court process. These activities not only detract prosecutors from their core functions, but have a demoralising effect as prosecutors join the prosecution service to prosecute offenders and not to become administrators and bureaucrats.

Diversion

Diversion is the channelling of prima facie cases from the formal criminal justice system on certain conditions to extrajudicial programmes, at the discretion of the prosecution.430 Two important factors emerge from this definition. First, there must be a prima facie case. That is, should the case not be diverted and proceed through the normal criminal justice process, it is likely to result in a conviction. Second, diversion is not limited to the preconviction stage. Diversion includes any action taken at any stage in the criminal justice process that takes a case out of the conventional process of charge, plea, trial, conviction and sentence. In practice, the vast majority of cases are diverted at the pretrial stage.431

Diversion is based on the premise that the formal criminal justice system with its familiar steps of arrest, trial, conviction and sentence is not the only recourse to criminal justice. There are other ways in which to treat offenders and their victims, which will serve them and society in a more constructive manner.432 One of these ways is diversion that, among others, aims to make offenders accountable for their actions, identify underlying problems motivating offending behaviour, provide educational and rehabilitative programmes to the benefit of all parties concerned, and reduce the caseload of the formal justice system.

Diversion programmes reduce the number of cases processed by the formal court system. The effectiveness of a good diversion programme is demonstrated by a drug court in the US city of Miami in Florida. Between June 1989 and March 1993, approximately 4 500 accused (representing nearly 20% of all persons arrested in the county and charged with drug offences) entered Miami’s diversion and treatment programme. Among accused who successfully completed the programme, only 11% were arrested again in the year following their participation.433

Diversion programmes have been in existence in a number of countries for decades and operate with great success.434 In South Africa, the first formalised diversion programmes for child offenders were initiated by non-governmental organisations (NGOs) in the early 1990s. Diversion in South Africa is still in its early stages, and while diversion is identified as a component of a number of the government’s criminal justice policy proposals,435 there exists no legislation or regulations to govern a uniform diversion policy for the country. Given the benefits of diversion, properly structured diversion programmes should be implemented in most parts of South Africa for cases such as:

child offenders who commit relatively minor crimes;



young adults and students who shoplift or break into a house or a car in a thoughtless moment of recklessness or as part of a juvenile dare and whose future could be permanently impaired by a criminal record; and



adults guilty of certain victimless crimes such as drug and driving-related offences.

Diversion programmes reduce the workload of the courts and the prosecution service, especially in respect of minor and less serious offences. This permits the prosecution service to focus more of its energies on the prosecution of serious crimes and career criminals.

The costing of the draft Child Justice Bill disclosed that diversion programmes for child offenders should cost less than the traditional and formal court-centred approach of dealing with young offenders.436 The formal court process is labour intensive and expensive. A magistrate’s court is staffed by a judicial officer, a prosecutor, an interpreter, and one or two court orderlies on a full-time basis. The work of the court is further supported by a clerk of the court, management and administrative personnel at the court, legal aid officials, security officials at the court, and police and prison personnel who guard accused at the court and transport them to and from the court. Other indirect expenses include department of justice personnel and officials at the office of the director of public prosecutions of the region who are responsible for their staff at the court. They must ensure the smooth running of the state’s bureaucracy: that salaries are paid, pension payments invested, medical aid claims reimbursed, and records kept of, for example, bail monies and fines paid at the court. Finally, the court generates expenses pertaining to the upkeep of the court building, the insurance of its contents and other miscellaneous expenses such as water and electricity payments and the cost of the property on which the court is situated. It is realistic to assume that every court hour costs the state thousands of rand in direct and indirect expenses. Such expenses are the same irrespective of the issue the court is dealing with. A murder or robbery trial is likely to cost the state as much per court hour as a trial dealing with a shoplifter or a person charged with urinating in public. Given the state’s limited financial resources, it would be prudent to divert as many of the latter type of offences away from the formal and expensive court system to allow the courts to concentrate on serious crimes.

It is likely that South Africa’s vibrant civil society and NGO sector can successfully provide certain diversion programme services, thereby reducing the costs of such programmes to the state. Innovative approaches to diversion can also contribute to cost savings. For example, a child offender in a diversion programme entailing compulsory school attendance could have his adherence to the programme verified by his teacher, instead of a state official specifically employed to perform such a function. In this way, no extra personnel needs to be employed to monitor the offender’s compliance with the programme.

In South Africa the national institute for crime prevention and the rehabilitation of offenders (NICRO) has been the primary provider of formal diversion programmes for child offenders. For example, a total of 6 600 cases were dealt with by NICRO between September 1997 and August 1998.437 While no enabling legislation is in place, the diversion programmes offered by NICRO are widely accepted and have been implemented in practice in many urban areas of the country. However, because of an absence of clear guidelines, inconsistencies exist in the kinds of cases considered for diversion.

Such inconsistencies and the lack of clear guidelines in respect of child offenders can be addressed, according to a South African law commission report and a draft bill on child justice, released in July 2000.438 The report envisages a cohesive child justice system that strives at all times to prevent children from entering deeper into the criminal justice process while holding them accountable for their actions. The proposed system aims to ensure that children (ie persons under the age of 18), accused of less serious offences, are afforded the opportunity through diversion to be held accountable outside of the criminal justice system. The implementation of the proposed Child Justice Bill would not involve the establishment of new courts nor, for the most part, the employment of additional personnel. It is estimated that the state would save R200 million per year once a comprehensive child justice system, as provided for in the bill, is operational.439 The proposed child justice system would substantially reduce the amount of energy and time spent by the criminal courts, generally, and prosecutors, specifically, in dealing with child offenders.

The draft Child Justice Bill describes the purposes of diversion as:

encouraging child offenders to be accountable for the harm caused by them;



providing an opportunity for victims to express their views, encouraging restitution, and promoting reconciliation; and



reintegrating child offenders into their families and communities, preventing stigmatisation and preventing child offenders from acquiring a criminal record.

The draft bill sets out a list of diversion options on three levels.440 Level one includes simple agreements that can take the form of an order, including requirements such as supervision and guidance, compulsory school attendance or refraining from frequenting a particular place. Apology and restitution of items to a victim are also options included in level one. Level two diversions include payment of compensation to victims or charities, or community service.

Restorative justice options such as referral to a family group conference or victim-offender mediation are also included in level two.442 Level three diversion options include referral to programmes that have a limited or periodic residential requirement (such as camps or a specialised centre), and community service for up to 12 months. Where a child is no longer attending school, he may be referred to a full-time vocational or educational programme for up to six months.

Arbitration and mediation

Arbitration and mediation precede the creation of organised judicial systems. More than 2 500 years ago, societies developed informal mechanisms, much like arbitration and mediation, to resolve disputes.443 Many of the criminal cases heard in the lower courts today focus on factual rather than legal disputes. Such cases require a minimal application of the law. These cases, however, are filling the court rolls beyond capacity.

Arbitration is a substitute for a court trial. It involves a hearing and an enforceable decision, but the process takes place outside the court system, thus avoiding many of the delays, expenses and stresses associated with litigation. Arbitration is usually quicker than litigation. It is also more convenient as hearings are set up at a mutually acceptable time and place. The selected arbitrator can be an expert on the offence in question, for instance domestic violence or reckless driving, which aids in shortening the presentations of the parties and in producing a sensible result.444

Mediation seeks to provide a way of resolving disputes without recourse to the vagaries of the courts, allowing both parties to retain control and to voice their grievances under the supervision of a mediator. The mediator makes no decisions and any resolution is reached by mutual agreement of the two parties. In practice, mediation may vary considerably from operating as a direct alternative to adjudication, through court-based schemes taking referrals from the courts prior to sentencing, to meetings between victims and offenders already in custody.445

In the US, arbitration and mediation are used to reduce caseloads in the criminal courts. Such alternatives have the advantage over the formal court system that the needs of victims are adequately addressed. The following analysis, which looks at the position of victims of crime in the formal state-run US legal system, is equally applicable to South Africa:

"Victims [of crime] feel abused and betrayed by the system when the conviction does not reflect the nature of the acts committed, and the penalty is disproportionately small in relation to the suffering and hardships that have resulted. In addition, victims and other witnesses are expected to attend repeated court hearings where they are taken for granted or ignored entirely. They are rarely informed of continuances or informal dispositions that make their presence unnecessary. They must endure the anxiety of waiting for hours upon end, often in the same room with, or even seated beside the person against whom they have been called to testify. They are expected to assume the financial hardship that the loss of their time entails, a hardship that can sometimes exceed the punishment that results for the defendant if he is convicted. In a very real sense, the victim and witnesses of crime become the victims of the criminal justice system itself."446

In Rochester, New York, a programme has been in operation since 1973 whereby less serious criminal charges are referred for arbitration. In terms of the Rochester programme, minor criminal charges are converted into civil actions that are submitted by the parties to the arbitration. The rationale for the project is not only that the courts are relieved of a host of private minor complaints, but that the disputes themselves are resolved in a more effective and positive way.447 The first enquiry is about the nature of the offence and the relationship between the parties. The programme is available only to parties who know each other, such as husband and wife, landlord and tenant, neighbours, or employer and employee. The complaint must be over conduct that is of a minor criminal nature. Once this has been established by the court complaint clerk, the complainant is advised of the arbitration option. Only if the complainant, the local senior prosecutor and the accused person agree to opt for arbitration does the process proceed. If the accused person does not wish to proceed, the charge is prosecuted in the normal manner.

The arbitrator’s primary aim is to mediate the dispute and work out a consent agreement. Lacking successful mediation, the arbitrator has the authority to render his decision. The award can include civil damages and injunctive relief, but not an assessment of criminal penalties.448 A part of the consent agreement concentrates on the needs of the victim and compensation by the accused person. Criminal courts often ignore the needs of individual victims. Fines go to the state, and punishment is determined, among others, by the need to protect society as a whole. Arbitration programmes recognise the importance of the interests of the victim in the criminal justice process.

Time-consuming and expense-incurring matters are diverted from state-funded courts through arbitration and mediation programmes.449 While court imposed punishments lead to a high reoffender rate, the solutions provided by arbitration and mediation tend to prevent a recurrence of the criminal act. Such programmes reduce the level of tension between the participants by helping them to resolve their disputes, and by "creating a sense of satisfaction through the provision of meaningful and expeditious relief for the injuries suffered."450 The goal of the state need not always be to determine and allocate fault to any single person. Arbitration and mediation programmes approach antisocial behaviour with this in mind. They emphasise the personal responsibility of each party, rather than the narrow assessment of legal fault. As a result, "mediation produces more durable results more economically and expeditiously than the current criminal justice system."451

Arbitration and mediation could be used more widely in the South African justice system. This would assist the victims of crime, the courts and even accused persons who often have to wait for months and even years for the finalisation of their trials. The high cost of criminal litigation and the lack of capacity in the state-run criminal justice system also speak for an arbitration programme for criminal offences in South Africa. According to NICRO, arbitration "would be in the best interests of justice and those affected by crime that a situation of judicial pluralism evolves, giving individuals more than one recourse to justice in order that their specific needs are addressed."452

If an arbitration/mediation programme is implemented in South Africa, cost-savings to the state should result. "Although the establishment of a mediator’s office obviously has cost implications, these costs should be outweighed by cost-savings from staff reductions and smaller prison populations."453 A 1992 pilot victim-offender mediation programme, undertaken by the Cape Town branch of NICRO, found that cases handled by such a programme are less expensive to the state than when they are processed through the normal criminal courts.454 Arbitration and mediation centres should not be staffed by prosecutors or judicial officers. The staff should come from the ranks of attorneys (as is the case with the successful small claims court system), community organisations, and even senior law students. There should be no need for the state to employ additional personnel on a permanent basis.

Community dispute resolution

A 1999 South African law commission discussion paper has recommended that community-based dispute resolution structures,455 normally known as ‘community courts’, should be recognised and supported by law as they serve a useful purpose in meeting the needs of the majority of South Africans for accessible justice.456 The commission suggests that community dispute resolution structures could be called ‘community forums’ in future and they should not be considered to be courts but dispute resolution and peacemaking structures that provide justice for local communities.

According to the commission, community forums have the benefit of being able to follow procedures based on resolving conflict through problem-solving. They can mediate, reconcile and arbitrate with the objective of solving a problem. They can make orders of restitution, compensation, or order community tasks to be performed by the offender and even refer matters for advice or hand the issue over to another body. The commission warns, however, that it is crucial that attendance at any community forum should be voluntary, both in terms of the inception of each attempt to resolve a dispute, as well as for the duration of the dispute resolution process. That is, at no stage should one of the parties be able to compel another to attend or to continue with any conciliation process.457 Decisions of a community forum should be binding on the parties only if they have agreed beforehand to be bound by such decisions. The commission recommends that, in legislation governing community forums, care must be taken to ensure that community forums remain informal and flexible in their procedures, inexpensive in their operation, and responsive to the needs of the communities where they operate.458

Outsourcing prosecutions

Benefits of outsourcing

Philip Fixler and Robert Poole of the Reason Foundation — an American research and educational organisation — point out that an "essential ingredient in a privatisation analysis is an understanding of the possible forms of privatisation."459 The classic form of public service (and the common assumption for all criminal justice functions) has the state providing the funding via taxes, and producing the services directly, through state employees. Fixler and Poole hold that private mechanisms may be used in either or both of these areas. If the state retains responsibility for funding a service, but hires the provider of the service in the open marketplace, a form of private sector involvement results that is known as ‘outsourcing’ or ‘contracting out’. There are numerous benefits to the state and its criminal justice system in outsourcing some of its functions and services to the private sector.460

In ‘Justice without the state’, Bruce Benson, an economist from Florida State University, says the following about the public service in the US (which applies equally to South Africa):

"The organizational inflexibility inherent in the civil service system prevents management from disciplining inefficient employees unless their behaviour is extreme. Lateral movements to adjust manpower needs in the face of changing demands are virtually impossible, as is hiring at any but the lowest grades. Such dysfunctional qualities of civil service systems commonly reflect employee pressure which tends to emphasize continuity and seniority over competence as qualifications for higher-level positions, and by employee unions which emphasize the traditional union goals of more pay, less work, and job security."461

A private contractor’s need to remain competitive and generate a profit is an incentive to limit waste and maximise productivity — pressures that do not exist in the public service.462 Cost-savings arise because private profit-seeking entrepreneurs want to attract and keep customers in the face of competitive alternatives. After all, any unnecessary costs cut into profits and create an opportunity that other entrepreneurs can exploit by offering a better contract when renewal occurs.

The incentives of public bureaucrats are very different from those of private producers. Private entrepreneurs’ desires for expanding power are limited in competitive markets because they must compete for the attention of the customer with other firms offering similar goods or services. Government departments must also compete, but they compete with other government departments, generally with very different functions, for a share of the overall government budget. The difference is significant. Because other firms offer alternative price/quality combinations, customers have choices among a number of similar products. Thus, competitive firms must produce something the customers are willing to buy at a price that customers are willing to pay.

Private firms must persuade customers to buy their products rather than the product of the competition by offering a price/quality mix that consumers find to be equal to or better than the price/quality mix offered by someone else. In other words, consumers can do some comparison shopping, thereby gaining information about the actual costs of producing the good and the quality characteristics that are associated with it. There is then a strong incentive for entrepreneurs to look for ways to produce more efficiently, driving down costs and prices, and to develop new and better products in order to increase quality. It is the incentive created by competition that leads entrepreneurs systematically to develop new technologies that reduce costs while increasing both the quantity and quality of output.

In outsourcing contracts to private contractors, the state can set down and specify minimum standards. Without outsourcing, where the state has a monopoly over the provision of all services, this rarely happens. For example, the public police is expected to uphold certain standards. If this does not occur, the state is not in a position to go to a different service provider. At best, the president can fire the responsible minister, and hope that his successor will provide a better performance. In practice, this hardly ever occurs, and the public has to wait for the next election to demonstrate its dissatisfaction.

Professor Charles Logan of the University of Connecticut, a specialist in crime and justice matters, argues that contracting out increases accountability as governments are more willing to monitor and control contractors than themselves:

"Contractors — just as their governmental counterparts — are accountable to the law, to governmental supervisors, and ultimately, to the voting public through the political system. In addition, they are accountable, through a competitive market, to certain forces not faced by government agencies. They are answerable to insurers, investors, stockholders, and competitors. As a mechanism of accountability and control, the force of market competition is unmatched."463

Technical cases

In South Africa most prosecutors enter their profession directly from law school. The typical academic qualification of a prosecutor is a bachelor degree in the social sciences, followed by a law degree. Prosecutors have little or no training in subjects such as forensic accounting or computer science. As a result, computer-related fraud and intricate commercial crimes are often not prosecuted, or prosecuted unsuccessfully, because of the lack of technical knowledge among prosecutors.

Such specialised prosecutions should be outsourced to the private sector.464 Bruce Benson argues that there are advantages in specialisation, and the use of specialised personnel:

"One reason that the private sector might be expected to do well what the government criminal justice system does badly is that consumers generally have narrowly focused concerns. Thus, when they pay a private firm to alleviate those concerns, they can hire someone with expertise. When resources specialize in their area of comparative advantage, economic efficiency is enhanced. More is produced with the same resources, or fewer resources are needed to produce the same level of output."465

In many parts of the world, private security agencies engage in specialised investigative activity. According to Les Johnston, author of ‘The rebirth of private policing’, this is partly because of the "inability of police organizations (and the law itself) to keep up with the sophisticated techniques of those engaged in large-scale fraud."466 The investigation of commercial crime by private investigators and forensic accountants has taken place for some time in South Africa. Many forensic accounting firms have become "privatised commercial branches of the police comprised largely of ex-SAPS detectives."467

The SAPS commercial branch and the investigating directorate: serious economic offences have outsourced investigative work on occasion to accountants in the private sector. Such accountants, in conjunction with police detectives, investigate crimes and collect the evidence required by the prosecution service. There is no reason why this could not be extended to the actual prosecution of certain crimes. There are many law firms in South Africa that specialise in commercial crime. They have qualified and experienced personnel to handle intricate fraud cases. While outsourcing such prosecutions to the private sector may be an additional expense to the state in the short-term, the long-term benefits of an increase in the number of successful convictions would be considerable. White-collar crime has reached alarming proportions in South Africa. Through the effective combating of such crime, the economy as a whole would benefit. Moreover, diverting selected cases to the private sector will permit state prosecutors to concentrate their efforts on other priority crimes.

Companies are loath to wait long periods for the finalisation of fraud cases involving their employees. Numerous, drawn-out court appearances cause bad publicity and are costly as staff members have to spend time at court to testify. The loss for such companies is especially harsh if the prosecution is unsuccessful. Firms that are prepared to spend large sums of money on private investigators to track down a fraud suspect among their employees, may be willing to pay for an experienced and competent commercial lawyer to conduct the criminal prosecution of their cases as well — in particular if they were assured of a speedier finalisation of the trial and a greater chance of obtaining a conviction.468 Commercial insurance policies could even be adapted to cover the additional costs of a private prosecutor.

At the opening of the first specialised commercial crime courts at the end of 1999, the minister of justice and constitutional development, Penuell Maduna, announced that private counsel will prosecute some cases at these courts on behalf of the state.469 Funds to pay for such private counsel, who are paid at market-related rates, are donated by the private sector. Donations are deposited into the trust of the arbitration foundation of South Africa and administered by Business Against Crime.470 In this way, funders are unable to influence the national prosecuting authority’s decision whom to prosecute and the order in which fraud suspects are prosecuted. The danger that the most generous funders could receive preferential treatment from the prosecuting authority is thereby avoided.471

Seasonal cases

Certain crimes have a seasonal prevalence. Over the Christmas/New Year period, there is an upsurge in drunk-driving, shoplifting, assault and domestic violence cases. These are normally not complicated cases to prosecute. Because of their sheer number, however, and the fact that many prosecutors go on leave over the Christmas period, a congestion of cases builds up at the beginning of each year. In the busier urban courts, it can take months to process such cases. The solution is not to employ more prosecutors on a full-time basis, as there would then be a surplus of prosecutors for the remainder of the year. Rather, the prosecution of such cases should be outsourced to articled clerks and junior attorneys in the private sector.472 This would assist the state to deal cost-effectively with the annual bottleneck of cases.

Peripheral matters

Larger magistrate’s courts assign one or more prosecutors to deal with maintenance inquiries, inquest proceedings and traffic contraventions.473 The state is wasting a scarce and costly human resource by using qualified prosecutors to perform what are in essence non-legal functions.

A maintenance prosecutor spends little time in court. The bulk of his time is spent mediating between estranged parents, in an attempt to come to an out-of-court settlement on the amount of maintenance the non-custodial parent is to pay to the custodial parent for the support of his children. This requires a factual assessment of the expenses incurred by the custodial parent who looks after the children, and of the incomes of the two parents. Thereafter, each parent’s contribution is calculated using a standard formula. A prosecutor’s legal training and courtroom skills are wasted on such a function, which could be outsourced to a person with good interpersonal and mediation skills, and some knowledge of accounting and psychology. Only in instances where mediation fails should the matter be referred to a prosecutor for courtroom settlement.

As with maintenance, inquest prosecutors spend little time inside a courtroom. Their main function is to obtain a plethora of certified statements, reports and forensic documents that together form a chain of evidence, from the deceased’s time of death to the time his body is given to an undertaker for burial. On the basis of these documents, a judicial officer makes a finding in chambers. It is only on the rarest of occasions that a formal inquest is held in court. The compilation of inquest dockets could be outsourced to persons skilled in forensic medicine and recordkeeping. Only if a formal inquest has to be held, should the matter be referred to a prosecutor.

A traffic prosecutor spends a large portion of his time dealing with written and oral representations from members of the public who admit to contravening a traffic regulation, but request a fine reduction. Traffic matters that go to court usually revolve around one or two factual disputes, such as whether a robot was red or green, or whether a vehicle came to a complete stop at a stop street. Prosecutors’ knowledge is wasted in the processing and prosecution of such trivial cases. Such matters should be handled by senior officials from the various traffic departments. As traffic departments receive the income from traffic fines, it is fair that they finance the cost of such prosecutions.474 At the time of writing, a few municipalities had introduced, or were considering the introduction of specialist traffic or municipal courts to deal with the prosecution of traffic violations and city by-laws. In some areas, these courts will be staffed by traffic officers with prosecutorial training.475

Certain other functions that are performed by the state for the benefit of the prosecution service can also be considered for outsourcing to the private sector.476 One example is the analysis of blood alcohol levels from blood samples of people suspected of driving while under the influence of alcohol. This work is performed at only three places in the country: the department of health’s forensic chemical laboratories in Cape Town, Johannesburg and Pretoria. Insufficient staff and outdated equipment hamper the work of these laboratories. It takes six to 12 weeks for an analysis report to be finalised to be used as evidence in a trial.

Such a delay costs the state — and the prosecution service — money. A person accused of driving while under the influence will appear in court within days of being charged. On his first court appearance, the accused person’s case will be postponed pending receipt of the blood-alcohol analysis report. Judicial officers are reluctant to postpone a court hearing for long periods as the constitution grants accused the right to a speedy trial. A court hearing is usually postponed for about six weeks for the completion of the blood-alcohol analysis report. If personnel at the forensic laboratories take leave, or the police conduct drunk-driving ‘blitzes’ that result in numerous arrests, the laboratories are unable to cope with the additional work. Over the Christmas/New Year period, a shortage of staff at the laboratories coincides with an increase in the number of persons arrested for drunk-driving, exacerbating the situation. As a result, blood-alcohol analyses are delayed. Court cases originally postponed for six weeks have to be postponed once more. The accused must take time off work again to attend the postponement of his case (usually with his attorney). Valuable court time, as well as the time of the prosecutor, magistrate and the investigating officer on the case is taken up merely to postpone the matter for another few weeks for the blood-alcohol report.

If this service were to be outsourced to the private sector, everybody would benefit. The financial costs to the state would be reduced as private sector laboratories operate in a competitive environment. As the workload increases over the December period, the state could outsource additional work to private laboratories on a contract basis. This would reduce court delays, saving the state further expense. The economy in general would also benefit, as employed accused would not have to take time off work to attend the postponement of their cases. Moreover, this work could be outsourced to laboratories situated in the region where the blood was drawn to limit transport costs. This would also save time and reduce the risk of evidence transported over long distances being lost or contaminated. Blood samples collected at a road block in Durban or Bloemfontein would no longer have to be transported to Johannesburg for analysis.

Another example of a service peripheral to the prosecution service that could be outsourced to the private sector is the guarding and provision of security at courts. Most guards are currently employed on a full-time basis by the department of justice with complete public service benefits, such as generous leave provisions, medical aid and pension benefits. Such guards are busiest in the morning when witnesses, accused and members of the public enter court buildings. As cases are adjourned and finalised during the course of a day, the amount of human traffic entering and leaving court buildings drops considerably.

Outsourcing such guarding functions would be cost-effective for the justice department, which could channel any resultant savings into the prosecution service. Guarding contracts with private security companies could specify that a greater number of guards would be on duty during the busier morning periods than in the afternoon. This would improve safety at the courts. The state would pay only for the number of ‘guarding hours’ it procures. Moreover, high-profile court cases often attract large numbers of spectators and protestors. An outsourcing contract could specify that court management would be supplied with additional guards at short notice for a day. This is impossible under the present system, where court guards are employed on a full-time basis, and any additional security services are provided by the over-extended SAPS, which is called upon to assist courts on busy days.

Private prosecutions

Legislation makes provision for private prosecutions.477 They may occur only if a director of public prosecutions certifies that he declines to prosecute a case at the instance of the state.478 Moreover, private prosecutions are possible only in a limited number of circumstances, specified by statute. In essence, only a private person who proves some "substantial and peculiar interest in the issue of the trial arising out of some injury which he individually suffered" can institute a private prosecution.479 Companies and legal persons cannot do so.

There are a number of statutory safeguards to prevent persons misusing the limited right to institute a private prosecution. A private prosecutor must deposit a fixed sum of money with the court, and an amount the court may determine, as security for the costs that the accused person may incur in respect of his defence on a charge brought by a private prosecutor.480 Where a private prosecutor fails to prosecute a charge against an accused person without undue delay, these sums of money are forfeited to the state.481

In a private prosecution, the accused person cannot be arrested, and may be brought to court only by way of a summons.482 A court may set aside a private prosecution that is irregular, vexatious or constitutes an abuse of the court process. Where the court is of the opinion that a private prosecution was unfounded and vexatious, it must award to the accused person, at his request, such costs and expenses as the court deems fit.483 Where an accused person is acquitted, the court may order the private prosecutor to pay to the accused person the whole or part of his costs and expenses incurred in connection with the prosecution.484

There is much to be said for private prosecution.485 Victims of crime have a right to a fair hearing of their grievance. In certain situations, this right can best be upheld through the use of private prosecution. Tim Valentine, an American legal practitioner, says:

"The employment of private prosecution is in some cases and in some jurisdictions the only way for victims of crime to get justice. If you hire an attorney and he allows your case to be continued into oblivion (or into the trash can) without putting up a spirited fight in open court, or if he otherwise fails to perform adequately, he can be subject to disciplinary action by the grievance committee of the bar association."486

Public prosecutors’ offices often do not have the personnel, time and resources to peruse the police dockets presented to them adequately. Prosecutors also do not always have the time to confer with the state’s witnesses or crime victims prior to a trial. According to Bruce Benson:

"Public prosecutors supposedly represent victims, but they clearly do not do so. For one thing, there are far too many victims for the limited number of prosecutors to effectively represent, and for another, the incentives of prosecutors do not encourage high levels of concern for individual victims. Thus, to the despair of many victims, prosecutors dismiss many of the crimes that caused their suffering, presumably to handle the large number of accused criminals that pass through the system."487

The argument that private prosecution favours the wealthy, who can afford the cost of a private prosecutor, is misconstrued.488 Private prosecutions do not damage the rights of poorer victims of crime who have to rely on the public prosecution system. Private prosecutions reduce the workload of public prosecutors, allowing them to concentrate their limited resources on cases where, among others, poor people have been victimised by crime. Moreover, concerned citizens, victims’ rights groups (such as rape crisis centres) and NGOs can assist indigent crime victims to obtain the services of a private prosecutor.

Many large companies would be prepared to use private prosecutors to prosecute people who defraud them. Many such fraud cases are intricate and exact a lot of time and effort from prosecutors. Using private prosecutors to deal with them would allow public prosecutors to get on with prosecuting other serious crimes, such as murder and rape. The law would need to be amended to permit companies and legal persons to institute private prosecutions.

The law should also be amended to make it easier for private persons to institute private prosecutions. In terms of the present system, victims of crime may proceed with a private prosecution only after a director of public prosecutions declines to prosecute the case in question. Crime victims are therefore left with no real choice. Should a director of public prosecutions decline to prosecute, it is likely that there is insufficient evidence to warrant a prosecution. Under such circumstances, a private prosecution is likely to be rejected by the courts. If a victim should have a strong case, and there is substantial evidence against an accused person, a director of public prosecutions will not decline to prosecute. The victim then has to rely on the slow moving state-run justice system for redress. The law should be changed to permit private prosecutions that are not conditional upon a director of public prosecution’s decision not to prosecute. The decision whether to institute a private prosecution should be left to the victim of a crime — the person who has the most to lose from a bungled prosecution.

There would be a number of benefits from such a change in the law. By instituting private prosecutions, crime victims improve their chances of obtaining a speedy conviction against an accused person. The accused person benefits as his trial is finalised more rapidly than would otherwise be the case. Frequent delays in criminal trials place considerable financial and emotional strains on accused persons and their families, even if the trials end in their acquittal. Finally, private prosecutions alleviate some of the pressures on the state-run prosecution system, as state prosecutors will be able to devote more time to other cases they have to deal with.

Private prosecutions still used Although modern societies generally entrust the enforcement of criminal law to public prosecutors, most crimes in pre-modern societies were prosecuted privately. In classical Athens, 9th-century Germany, and England before the 19th century, there were no public prosecutors for most crimes. Instead, the victim or a relative initiated and litigated the cases.489 Today, some 3% of criminal prosecutions in England are done by victims or their employed attorneys. Public prosecutors in Germany enjoy a monopoly on the right to prosecute, with two exceptions. First, there is a class of minor offences, such as domestic trespass, that can be prosecuted by victims. Second, a crime victim can demand that a public prosecutor pursue a case, and if this is refused, the victim can appeal to the state appellate court. The court can order the prosecutor to bring charges. Under such circumstances, the victim can join the prosecution as a ‘supplementary prosecutor’ to ensure that the state prosecutor does an adequate job in presenting the case.490

Interns for prosecutors

Prosecutors spend much of their time performing routine administrative and clerical tasks because of a lack of support staff. This includes filling in exhibit request forms, drawing up charge sheets, photocopying statements, finding relevant case law, and telephoning witnesses to arrange court appearance times. For example, during 1997, prosecutors at the Cape Town magistrate’s court spent almost 3 000 hours preparing copies of dockets for defence counsel.491

Many senior law students would welcome the opportunity to do an internship at a magistrate’s court during vacation time. Law students would be prepared to do a voluntary internship free of charge if the system were well-structured, and the interns were afforded the opportunity to learn. Apart from gaining valuable practical experience about the operation of a criminal court, it would also enhance their curricula vitae, and assist them in making valuable personal contacts in the legal profession. Prosecutors with families tend to go on leave during the summer and winter school holidays. During these times, most prosecutors’ offices are particularly understaffed. As school holidays overlap with university vacations, student interns would be available at times when their services would be needed the most.

At the Cape Town magistrate’s court, law graduates with the desire of becoming prosecutors are appointed as interns on a voluntary basis for a period of one or two months.492 The interns are allocated to an experienced prosecutor from whom they can learn the practicalities of prosecuting through observation and by asking questions. The interns assist the prosecutors with tasks such as making photocopies, taking witnesses through their written statements and phoning investigating officers for dockets. After their internship, the interns are evaluated. If they performed well and have an acceptable rudimentary knowledge of prosecuting and the procedure in a court, they are considered for appointment. This enables senior prosecutors to screen applicants much better compared to simply reading their CVs and conducting an interview with them for an hour or so. Moreover, interns get a good idea of what would be required of them should they join the prosecuting profession. This permits potential applicants to make a considered decision whether to apply for a permanent position with the prosecution service.

Plea-bargaining

Plea-bargaining is a negotiation between the prosecution and an accused (or his legal representative) in which the accused agrees to plead guilty to a criminal charge in exchange for concessions by the prosecution. The accused waives the right to a trial, losing any chance of an acquittal, but avoids conviction on a more serious charge or receives an undertaking by the prosecution not to propose a harsh sentence for the accused. The prosecution, on the other hand, is not required to go through a long and costly trial. Issues negotiated in plea-bargaining include a reduction of the charge, a specific recommendation for sentence, or an agreement by the prosecution not to oppose a request for a suspended sentence.493

Plea-bargaining is a process whereby the prosecution and the defence make concessions through negotiations to reach an agreement regarding the disposal of the case. In practice, successful plea-bargaining occurs where the prosecution, for example, withdraws certain charges for a plea of guilty to other charges, or where the prosecution accepts a plea to a lesser charge (eg exceeding the speed limit or negligent driving instead of reckless driving). The main objective of plea-bargaining is to limit the extent of the sentence of the accused by negotiating an agreement on the reduction of the number of charges or the seriousness of the charges.

In the US, the federal rules of criminal procedure give statutory effect to the practice of plea-bargaining on condition that any agreement is disclosed in open court and can be rejected by the trial judge. Over 90% of all criminal cases in the US are disposed of through guilty pleas. A substantial number are the result of plea-bargaining.494 In the US, plea-bargaining is regarded as an important element of the criminal justice system. Without it the administration of justice would be at risk of breaking down because of the substantial increase in trials that would overburden the courts.

The US supreme court has accepted plea-bargaining as an essential and desirable part of the criminal justice process.495 The court has held that plea-bargaining:

leads to the prompt finalisation of most criminal cases;



avoids much of the corrosive impact of enforced idleness during pretrial incarceration for those who are imprisoned awaiting trial; and



protects the public from accused who are prone to continue criminal conduct while on pretrial release.

By shortening the time between charge and sentence, plea-bargaining enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned.

There are a number of arguments against plea-bargaining.496 First, plea-bargaining circumvents the usual standards of due process and proof applied to determine guilt. Second, it undermines the ideals of justice as prosecutors determine their offers to the accused by weighing their chances of success at trial, rather than an impartial finding on the facts by a court. Third, an accused may be induced to plead guilty for fear of harsher punishment, should he attempt to contest the charges levied against him. Fourth, guilty accused may not be punished fully, or may escape with lenient sentences. The last two objections imply that plea-bargaining could result in the crime to which an accused pleads guilty not being a true reflection of the criminal act(s) he committed.

To overcome the potential pitfalls of plea-bargaining, the law reform commission of Canada recommended that the procedure should be regulated by means of legislation that contains detailed guidelines and directives which must be complied with before a plea-bargaining agreement can be accepted:497

No accused may be improperly induced to conclude a plea agreement.



If the accused has legal representation, the prosecutor must negotiate with the legal representative.



If the accused is not represented, the prosecutor must comply with specific rules such as informing the accused of the advantages of legal representation.



All persons and accused must receive equal treatment.



Plea bargains must accurately reflect the criminal behaviour of the accused, and facts must not be distorted or evidence withheld from the court.



The victim must be consulted in the conclusion of the plea-bargaining agreement.



The contents of the plea-bargaining agreement must be disclosed in open court and the court must satisfy itself that the accused was not improperly influenced.



The judicial officer may accept or reject an agreement, and must reject it if there is reason to believe that the accused was induced improperly or that the agreement does not reflect the criminal behaviour which can be proved.



A plea of guilty may be withdrawn if there was improper inducement.

While no formal system of plea-bargaining exists in South Africa, there is no doubt that an informal system of plea-bargaining and negotiations is widespread in the country’s courts.498 The prosecution, at any stage before trial, may accept such reduced pleas as it thinks fit. Even at the actual trial, the accused may plead guilty to a (lesser) competent charge. If he does so and the prosecution accepts the plea, the court has no power to refuse to accept the plea and proceed with the original charge.499 The high court has held that forms of plea-bargaining have become accepted practice between defence representatives and prosecutors over the years, and that an acknowledgement that plea-bargaining is an integral part of the process of criminal justice in South Africa would be to face the truth.500

An amendment to the Criminal Procedure Act — which had not been put into operation at the time of writing — will enhance the prosecution’s ability to engage in plea-bargaining.501 The amendment provides that the prosecution, at any time before judgement and upon written receipt of a written admission made by the accused in respect of the charge brought against him, may reconsider the case. The prosecution may suspend the court proceedings and place the accused, with his agreement, under correctional supervision on such conditions and for such a period as they agree on.

A formal system of plea-bargaining in South Africa would assist the prosecution service in the quick finalisation of many cases, enabling it to allocate scarce resources more effectively elsewhere. That is, a number of plea agreements may save the prosecution sufficient time and resources to allow the successful prosecution of other more serious offenders. The national director of public prosecutions, Bulelani Ngcuka, points out: "Plea bargaining can lead to a redistribution of prosecution resources to handle priorities, to free an overburdened judiciary and to create new efficiencies in the entire justice system."502

An examination of the practice of informal plea negotiations in South African courts comes to the following finding:

"A balanced plea agreement can move minor cases out of the system to make room for more important trials serving efficiency goals. Likewise, a creative plea agreement can mandate a rehabilitative programme for the accused, and establish a restorative justice plan to compensate a victim."504

In addition to the advantages of plea-bargaining pointed out by the US supreme court, a formal system of plea-bargaining in South Africa would also further the aims of the criminal justice system because swift and certain punishment serves the ends both of general deterrence and the rehabilitation of the individual accused. Successful plea-bargaining avoids the necessity of a public trial and may protect the victim of a crime against the trauma of cross-examination.

A successful South African plea-bargaining system will have to guard against a number of potential pitfalls. In a divided society such as South Africa, it is crucial that a plea-bargaining system is applied equally to everyone, lest the system loses credibility and tarnishes the image of the whole justice system. Plea-bargaining negotiations should leave no room for individual prosecutors to make more or less generous offers depending on the race, ethnicity, nationality, gender or other group-based attributes of the accused.506 Clear guidelines and rules are necessary to prohibit prosecutors from discriminating against individual accused in the plea-bargaining process without needlessly limiting the flexibility required by prosecutors to negotiate effectively during the plea-bargaining process.

There is a risk that seasoned and overbearing defence lawyers could persuade and even browbeat inexperienced, badly trained or unmotivated prosecutors into accepting unfair plea-bargaining agreements that are to the advantage of their clients. An inexperienced prosecutor, for example, may accept a guilty plea of common assault, even though there is sufficient evidence to secure a conviction on a charge of assault with the intent to commit grievous bodily harm, because he is concerned about losing the case on either charge as the senior counsel who is representing the accused is a talented litigator. Prosecutors who are overworked or unmotivated may accept guilty pleas on lesser charges to lighten their caseload or to go home early. This would be unfair to the victims of crime, the police who spent substantial resources to collect enough incriminating evidence against the accused to convict them of the crimes they actually committed, and society in general, who pays taxes to enable the criminal justice system to punish accused for their criminal deeds.507 The South African law commission suggests a useful general rule for plea-bargaining: the offence to which the accused is willing to plead guilty should realistically reflect his criminal conduct, and the sentence that the prosecution agrees to accept should be justifiable on recognised principles of punishment.508

To prevent prosecutors from accepting guilty pleas on unnecessarily lenient charges, they must receive sufficient training and support to give them the confidence and determination to reject plea-bargaining offers that are not in the interests of justice. It may be prudent to limit the discretion of prosecutors to enter into plea-bargaining agreements until they have reached a certain level of experience and training, and have shown themselves to be responsible and confident in the execution of their duties. Care will also have to be taken to guard against unscrupulous accused or defence lawyers corrupting prosecutors into agreeing to accept plea-bargaining agreements that are to the advantage of the accused. This underlines the importance of paying prosecutors good salaries so that the temptation to engage in corrupt behaviour that prosecutors may face, is limited.

In South Africa, many accused have limited formal education and financial means, and do not speak the same home language as the prosecutor. For plea-bargaining to work and become an acceptable part of the judicial process, it is important that unscrupulous or aggressive prosecutors do not press unrepresented accused into accepting plea-bargaining offers with which they do not agree and which are not in their interest. It is equally important that unrepresented accused are aware of all the implications of entering into a plea-bargaining agreement and understand what they are letting themselves in for. As a safeguard against such possible abuses it is advisable that the judicial officer should be informed when a plea-bargaining negotiation is in progress, and if an agreement has been reached before the accused is asked to plead to the charge(s). The judicial officer should have to satisfy himself that the accused has understood the agreement and that it was entered into voluntarily and without improper or undue influence. Should the judicial officer feel that the accused agreed to plead guilty to offences for which he was not likely to be convicted, or that the accused’s right to silence and a fair trial had been compromised, the judicial officer should have the power to enter a plea of not guilty on behalf of the accused.

In a discussion paper released in late 2000, the South African law commission proposes that sentence agreements — where an accused agrees with the prosecution to plead guilty provided an agreed sentence is imposed — should be legalised and regulated.509 The commission proposes that a sentence agreement should be binding on both the accused and the prosecution, but not on the court. That is, once an agreement is reached and the accused pleads guilty, the sentence agreement is disclosed to the court. The court, before convicting the accused, must question the accused to ascertain whether the accused understood his rights, that the agreement was entered into freely and voluntarily and that the plea is in conformity with the facts. This enables the court to assess whether the agreed sentence is appropriate. If the court is of the view that it would have imposed a lesser sentence than the agreed sentence, it may find the accused guilty, but impose the lesser sentence. Should the court reject the agreement, the accused is given a choice. He may abide by his plea to be sentenced. Alternatively, the accused can withdraw his plea and the matter has to begin afresh before another judicial officer.

Clerical and administrative assistance

Prosecutors are unable to cope with the high volume of serious crime cases they have to deal with. The long-term solution is to employ more prosecutors. A cheaper short-term solution is to maximise the productivity of existing prosecutors. Prosecutors are an expensive and valuable resource for the prosecution service. They are university graduates and are the only people who are entitled to prosecute cases in the country’s courts. It is their core function to prosecute cases: that is what they have been educated (and sometimes trained) to do and that is what they joined the prosecution service for. It is reasonable to assume that prosecutors enjoy a relative advantage when it comes to prosecuting. That is, prosecutors are likely to be better at prosecuting than at other functions they perform, and they are likely to be better prosecutors than other court functionaries. Prosecutors are therefore at their most productive when they exclusively perform the functions and duties of a prosecutor. The greater the number of non-prosecutorial functions they perform, the less productive they are likely to be, and the more their skills are wasted.

Prosecutors perform a variety of clerical and administrative functions. For example, during 1997 alone, prosecutors at the Cape Town magistrate’s court spent almost 3 000 hours photocopying documents.510 Some experienced prosecutors perform no direct prosecutorial functions and spend their working days on a variety of managerial and administrative tasks. It is estimated that there are in the region of 700 desk-bound prosecutors and magistrates working at the department of justice’s head office. Most of them were promoted to ‘management status’ because that was the only way for them to further their careers in the justice department.511

More clerks, administrative assistants and professional managers need to be employed to take the burden of performing non-prosecutorial functions away from prosecutors. Clerks and administrators are likely to be better at performing clerical and administrative functions than prosecutors who have no formal training in such fields. This will permit both prosecutors (who will have been relieved of most non-prosecutorial functions) and their support staff to work more efficiently and effectively than what is presently the case. More people will have to be employed by the justice department to make this a reality. However, for the criminal justice system as a whole, cost-savings should result as courts operate more effectively and the large backlog of cases which are creating a bottleneck for the whole criminal justice process will be reduced. For example, the department of correctional services saves approximately R1 million for every month that the trials of 400 awaiting trial prisoners are finalised earlier.512

Training for excellence

Training and skills development needs to play a more prominent role in the development of prosecutors. The legal environment where prosecutors operate changes constantly as new legislation is promulgated or old statutes amended, and the high court hands down new interpretations of the common law. Forms of crime and the ways in which criminals operate and try to hide their criminal activities evolve all the time. For example, many forms of environmental crime, Internet-based fraud, or money-laundering techniques did not exist a decade ago. To stay abreast of such new developments, prosecutors must be continuously retrained and taught new skills. Training and professional development should be an ongoing process for all prosecutors, and needs to be given greater emphasis by the national prosecuting authority and senior prosecutors responsible for individual courts throughout the country.

Greater emphasis also needs to be placed on the practical training needs of inexperienced and beginner prosecutors. Much has been done in this regard over the last few years with the introduction of six-month compulsory training courses for new prosecutors. Given the large reservoir of skills and knowledge that exists among the older and more experienced prosecutors, a mentoring programme should be considered for newer and less experienced prosecutors covering their first few years as prosecutors.

Mentoring can be defined as "the deliberate pairing of a more skilled or experienced person with a lesser skilled or experienced one, with the agreed upon goal of having the lesser skilled person grow and develop specific competencies."513 Mentoring can significantly benefit individuals and organisations. For individuals in their early careers, mentoring can reduce the shock of a new work environment and help prepare them for their new responsibilities and duties. For individuals at mid-career and beyond, being mentors can help them to meet generative needs and attain confirmation by passing on wisdom and experience. From an organisation’s perspective, mentoring has significant benefits as well. While reducing the shock of entry for newcomers and facilitating preparation for advancement, mentor relationships provide a socialising forum for the organisation. New employees learn the ropes of the organisation and are less likely to leave because of confusion and frustration. These developmental relationships help the organisation to nurture good talent, pass on central values and practices and reduce turnover in the early career years. In settings where affirmative action is an important objective, mentoring can counteract the disadvantages of not being a member of a dominant group and give historically disadvantaged group members important coaching, modelling and career counselling opportunities.514

Training programmes for prosecutors need to adopt more of a multidisciplinary approach. That is, standard prosecutors’ training courses should include sections on the work of the police’s detective service and specialised units and how the prosecution service should interact with them. The work of prosecutors can be enhanced if they have a good rudimentary knowledge of, for example, how the police take witness statements, collect fingerprints from a crime scene, or go about investigating a murder case. This would improve the ability of prosecutors to guide police detectives in the investigation of intricate cases. Prosecutors would also be in a better position to present technical evidence on the investigation of a case confidently to a court. A joint national crime prevention strategy (NCPS) pilot training programme for prosecutors, detectives and prison officials has been evaluated as an ‘unqualified success’.515 More such joint training programmes are necessary and should be incorporated into courses for all new prosecutors and into refresher courses for more experienced prosecutors and detectives.

The volume of cases flowing into and out of the lower courts — especially in the district courts — is very high. Lower court prosecutors could work more effectively if they had some rudimentary court and case flow management skills.516 These are skills such as the ability to identify the status of a docket quickly and accurately in order to determine how long the eventual trial of a case will take, the ability to manage a court diary, and the ability to decide in a logical manner in which order a day’s cases, postponements and bail applications should be dealt with given the needs and availability of witnesses, investigating officers, prison personnel and defence lawyers. The more effectively prosecutors manage their cases and courts, the more time they should have to prosecute cases. The justice college has identified this as a skills gap among prosecutors. There is, however, no uniform court and case management procedure in the country and individual courts are managed in different ways.517 This makes it impossible for the college to present comprehensive court and case management lectures to prosecutors who work in courts throughout the country. A uniform management system and a manual based on such a system need to be developed for all courts and prosecutors’ offices to overcome this problem and to provide the justice college with a national syllabus on which to train prosecutors.

Imagebuilding

There are a number of reasons why the image prosecutors have of themselves, and the public have of prosecutors, is poor.518 With the low experience level of the average prosecutor, many are outsmarted and outmanoeuvred by experienced and confident defence lawyers. Moreover, because of large workloads, many prosecutors come to court badly prepared and have insufficient time to engage properly with their witnesses and investigating officers. Because of resource constraints, many prosecutors work in cramped and dirty offices with no support personnel and little technological support. Finally, with low salaries, many junior prosecutors are poorly dressed and drive in old cars compared to their private sector peers who represent accused in criminal trials.

These examples may appear petty, and some of them are. However, because they have not been addressed, these issues have collectively had a profound impact on the image of the prosecution service. This deters good graduates from becoming prosecutors, and demoralises and lowers the productivity and work ethic of prosecutors.

To improve the image of the prosecution service in the long run, the proposals contained in this chapter should be adopted and implemented. This will take time and cost money. There are, however, a number of inexpensive actions that could be undertaken in the short term to boost the image of the prosecution service significantly. First, prosecutors who are consistently unable to meet their agreed upon performance targets, or who are indolent, undisciplined when it comes to their work, or corrupt, need to be dismissed from the prosecution service. Second, only applicants who meet realistic but exacting performance levels should be permanently employed by the prosecution service. Third, where necessary, prosecutors’ offices should be renovated. In principle, prosecutors should be entitled to the same kind and quality of furniture as magistrates. There should ideally be nothing to distinguish the office of a prosecutor from that of a judicial officer. Finally, the prosecution service should sell itself and its professional staff at every opportunity with vigour and determination. Senior prosecutors need to be encouraged to give the occasional lecture on criminal law and procedure at their local university, or to speak to senior high school vocational guidance classes on the prosecuting profession. Senior prosecutors should also participate in radio programmes and volunteer interviews with their local print media to publicise any successes of their staff and inform the public about the crucial role of the prosecution service in the fight against crime.