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'The new National Prosecuting Authority Act gives us a unique opportunity to carve out a new role and vision for ourselves. This new dispensation requires a new breed of prosecutor. We can change institutions, and we can even change the faces, but what is required is a far more fundamental change in our operation. We need prosecutors who see themselves as ‘lawyers for the people’.”
Bulelani Ngcuka, national director of public prosecutions, speaking at South Africa’s first national public prosecutors’ conference, August 1998'
Research rationale
Little research has been done about the South African prosecution service. Other than a few brief journal articles, discussion papers and press articles, nothing has been written about the modern prosecution service in South Africa. This is partly understandable. The police service occupies the visible frontline in the fight against crime and receives most of the attention of the research community and the media, out of all the departments comprising the criminal justice system. Almost everyone has spoken to a police officer or visited a police station. Many people, however, go through life without meeting a prosecutor. Not only are prosecutors hidden away from public view in courtrooms and offices, but they are few in number. In fact, there are more than 40 police officers or almost 20 000 South Africans for every prosecutor in the country.
Yet, the prosecution service is a crucial link in the South African criminal justice system. The best detective service and prison system cannot function properly if those guilty of committing crimes are not prosecuted successfully. The consequences of the prosecution service’s failures impact negatively on the police, the prison service and public perceptions about the effectiveness of the criminal justice system. Given its important role, research is needed to evaluate the performance of the prosecution service, identify its weaknesses and develop solutions to the problems inhibiting its effective performance. This study seeks to fulfil this need.
Focus areas
Chapter one of the monograph explores what prosecutors do. The role and responsibilities of the prosecutor at the pretrial, trial and sentencing stage of a criminal case are explained. A description is given of the wide discretion of prosecutors in the execution of their duties. During a normal working day, prosecutors make a variety of decisions. These revolve around, among others, whether to prosecute a suspect on the available evidence, who to charge with what crime in which court, which witnesses to call and what sentence to suggest for a convicted person. The various categories of prosecutors, their functions and position within the prosecution service, and the courts in which they operate, are described.
Chapter two contains relevant historical background to the modern South African prosecution service. Starting in 13th century England when the king’s attorney prosecuted certain offenders in the name of the crown, the chapter looks at the evolution of the prosecution service in the Cape under both Dutch and British control, the two Boer republics, its 20th century role in the Union and then in the Republic of South Africa, ending with the establishment of South Africa’s first centralised national prosecuting authority in 1998. Emphasis is placed on the historical struggle waged by the prosecution service over the centuries to assert its independence against an interfering executive.
Chapter three looks at the National Prosecuting Authority Act, the legislation governing the prosecution service since mid-1998. Attention is given to the organisational structure of the national prosecuting authority. The powers of the national director of public prosecutions, the head of the prosecuting authority, and the degree of independence inherent in this position are evaluated. The legislative provisions governing investigating directorates, through which formal investigative powers are granted to the prosecuting authority are explained. The political controversy surrounding the promulgation of the National Prosecuting Authority Act and the appointment of the first national director of public prosecutions is briefly discussed.
Chapter four provides information on the role and responsibilities of the office of the national director of public prosecutions. Two of the office’s important roles are to guide prosecutors in the execution of their duties and to develop a uniform national prosecuting policy. The contents and significance of the policy manual for the prosecuting authority — which comprises a prosecution policy, policy directives and a code of conduct for prosecutors — are explained.
Chapter five considers the benefits that greater prosecutorial specialisation can bring. Attention is given to the three specialised investigating directorates of organised crime and public safety, serious economic offences and corruption. The directorate of special operations (also known as the Scorpions) has the authority to institute criminal proceedings and carry out any necessary functions incidental to criminal proceedings relating to organised crime or other categories of crime still to be determined. The directorate integrates three traditionally separate functions: intelligence, investigations and prosecutions. Investigators of the directorate work in a prosecution-driven and intelligence-led environment. A number of concerns which have been raised about the Scorpions are examined. Finally, the chapter looks at three important specialised units in the office of the national director: the asset forfeiture unit, the sexual offences and community affairs unit, and the court management unit.
Chapter six provides a comprehensive assessment of the prosecution service’s performance. A wide variety of performance indicators are used, including historical data going back half a century, as well as detailed statistics on new performance indicators that have been developed in the last year. Measured over the latter half of the 1990s, the performance of the prosecution service has declined substantially. Measured over the last few months of 1999 and the first half of 2000, some tentative signs are evident that the prosecution service may be performing better on some indicators.
Chapter seven seeks to establish the reasons for the poor performance of the prosecution service. One of the main reasons for the decline in performance has been the departure of large numbers of skilled and experienced prosecutors from the prosecution service. Over a four year period after 1994 the prosecution service lost the equivalent of 2 000 years of work experience through resignations. The reasons for the large number of resignations include poor remuneration, inadequate human resource management, unpleasant working conditions, transformational problems, lack of administrative support and the poor image of the prosecution service. Other reasons for the low performance levels of the prosecution service have to do with inadequate training for prosecutors, the new post-1994 legal and constitutional environment, and the poor quality of the investigative work of the police’s detective service.
Chapter eight suggests a range of innovative solutions to the problems plaguing the prosecution service. The benefits of the proposed solutions are that they can be implemented in the short to medium term, are mostly inexpensive to implement, and are realistic in terms of their practical implementation. The proposals focus on improving the salaries of prosecutors and paying prosecutors according to their skills and levels of responsibility. It is further proposed that the manner in which careers are managed and fostered in the prosecution service should be improved to prompt promising prosecutors to develop challenging and rewarding careers in the service. This will encourage capable prosecutors to remain in the service for longer periods of time. To make the prosecution service more effective, prosecutors should be able to focus most of their time and energies on prosecuting offenders. Non-core functions such as administrative duties should be fulfilled by administrative staff or interns. Certain peripheral and specialised prosecutions should be outsourced to experts and lawyers in the private sector. More use should be made of diversion and plea-bargaining procedures to reduce the number of cases that are tried in the courts. Prosecutors at all levels of the prosecution service should receive ongoing skills training and refresher courses to keep abreast of new legal developments. Finally, it is proposed that the image of the prosecution service must be improved and maintained at a high level to entice the best law graduates and lawyers to apply for positions in the service.
Methodology
Research for this monograph was undertaken between April and December 2000. Interviews were conducted with district and regional court prosecutors and magistrates, senior public prosecutors and state advocates in the Western Cape, the greater Durban area, in northern KwaZulu-Natal and at the Pretoria magistrate’s court. Interviews were also conducted with personnel in the office of the national director of public prosecutions, senior members of the investigating directorate: organised crime and public safety, members of the specialised units in the national director’s office, lecturing staff at justice college, and senior office bearers of the national union of prosecutors of South Africa and the society of state advocates of South Africa. Discussions were also held with a number of academics and researchers with an interest in and knowledge of the prosecution service.
Extensive use was made of the available, albeit limited, literature on the South African prosecution service. Journal articles, media reports, research documents, transcripts of proceedings of prosecutors’ conferences, the prosecution policy and national policy directives from the national director’s office, official planning documents of the national prosecuting authority, and internal discussion documents of the office of the national director were used as sources of information.
In a work of this nature, the inevitable choice has to be made between the correct use of terms that may seem biased with regard to gender. For the sake of simplicity, the terms ‘he’, ‘his’ and ‘him’ were extensively but generically used. The intention has not been to exclude any gender from the discourse contained in this monograph.
Acknowledgements
The study forms part of the Criminal Justice Monitor funded by the Ford Foundation, Standard Bank and USAID. A special word of gratitude must go to Ms Marian van der Merwe, senior public prosecutor at the Pretoria regional court and president of the National Union of Prosecutors of South Africa, and Mr Mark Dyson, senior public prosecutor: training at the Durban magistrate’s court. Both these experienced prosecutors read the draft manuscript of the study and made extensive comments. Many of their comments and suggestions were incorporated into this final version of the monograph. However, it must be stressed that any errors and misinterpretations contained in the study are those of the author alone.
During the course of the research, the personnel in the office of the national director of public prosecutions provided sterling assistance, in particular, Ms Marion Sparg and Mr Sipho Ngwema, the chief executive officer and public relations officer respectively, in the office of the national director; advocate Thoko Majokweni of the sexual offences and community affairs unit; and advocates Jan Henning and Marnus Steyn of the court management unit.
The study would not have been possible without the many prosecutors and state advocates who willingly gave of their time and contributed their ideas. This enriched the research project on the prosecution service immensely. My colleagues in the Crime and Justice Programme at the Institute for Security Studies made valuable comments on the conceptualisation of the study, and their assistance is gratefully acknowledged. Crucially, the timely publication of this monograph would not have been possible without the professional advice and capable editing skills of Ms Euníce Reyneke.
Finally, grateful acknowledgement is given to the staff of the Pretoria magistrate’s court and the Pretoria regional court president, Mr WJPruis, for their co-operation in the taking of the cover photograph for this publication.
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