Notes


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

  1. Taken from a paper by the same name by J H Hugo, Codicillus 12(2), October 1971, pp 25 — 2
  2. National Prosecuting Authority of South Africa Policy Manual, October 1999, Pretoria, p A.2.
  3. In terms of section 35(1)(f) of the Constitution of the Republic of South Africa Act no 108 of 1996, "everyone who is arrested for allegedly committing an offence has the right to be released from detention if the interests of justice permit." Section 60 of the Criminal Procedure Act no 51 of 1977, as amended, lists the grounds on which a court may refuse to grant bail to an accused. In terms of part 10 (pp B.20 — B.21) of the national prosecuting authority’s policy manual, prosecutors have been instructed to oppose bail in respect of certain offences such as public violence where the violence is a manifestation of taxi or gang wars, culpable homicide arising from domestic violence, housebreaking accompanied by the commission of an offence other than trespassing, or vehicle-hijacking.

  4. This is the test prosecutors are supposed to use when deciding whether to institute a prosecution against a suspect. See National Prosecuting Authority of South Africa Policy Manual, op cit, p A.3.
  5. Ibid, p A.4.
  6. Ibid, p B.8.
  7. Ibid, p. A.5.
  8. Ibid, pp A.5-A.6.
  9. See also P Yutar, The office of the Attorney-General in South Africa, South African Journal of Criminal Law and Criminology 1, 1977, pp 136-138, for an example of a case where a previous attorney-general declined to institute a prosecution even though it was clear from the facts that crimes had been committed.
  10. F G Richings, The prosecutor’s discretion: A plea for circumspection, South African Journal of Criminal Law and Criminology 1, 1977, p 145.
  11. Ibid, p 143.
  12. Hugo, op cit, p 25. In Italy, for example, the constitutionally entrenched rule concerning mandatory prosecution limits prosecution discretion so tightly that failure to prosecute is itself ground for prosecution. See D Nelken, Understanding criminal justice comparatively, in M Maguire, R Morgan & R Reiner (eds), The Oxford handbook of criminology, Clarendon Press, Oxford, 1997, pp 565-571.
  13. Criminal Procedure Act no 51 of 1977, as amended, section 84(1).
  14. As set out in Shabalala and Others v Attorney-General Transvaal and Another 1995 (2) SACR 761 (CC), the prosecution may oppose access to documents contained in the police docket (or part of a docket) where there is a real risk that the identity of an informer may be disclosed; state secrets may be revealed; state witnesses may be intimidated; the proper ends of justice may be impeded; policing methods and investigative techniques may be disclosed; or confidential co-operation between various police forces may be revealed.
  15. In contrast to the adversarial system is the ‘inquisitorial system’, typical of countries that base their legal systems on civil or Roman law. Under the inquisitorial system, the pretrial hearing to establish a possible formal charge is usually under the control of a judge whose responsibilities include the investigation of all aspects of the case, whether favourable or detrimental to either the prosecution or the defence. At the trial, the judge, once more, assumes a direct role, conducting the examination of witnesses, often basing his questions on the material in the docket. Neither the prosecution nor the defence has the right to cross-examine.
  16. National Prosecuting Authority of South Africa Policy Manual, op cit, p B.4.
  17. Ibid, p A.9.
  18. Yutar, op cit, p 139.
  19. For a discussion of the more commonly used sentencing options see M Schönteich, Sentencing in South Africa: Public perception and the judicial process, ISS Paper 43, Institute for Security Studies, Pretoria, November 1999, pp 13-17.
  20. National Prosecuting Authority of South Africa Policy Manual, op cit, pp B.61-B.62.
  21. Ibid, pp B.22-B.25.
  22. Magistrate’s Courts Act no 32 of 1944, as amended, section 92(1), read with GN R1411, Government Gazette 19435, 30 October 1998.
  23. The first king’s attorney was Lawrence del Brok, who held office from 1247 to 1267. See Yutar, op cit, p 135 (note 1).
  24. L Johnston, The rebirth of private policing, Routledge, London, 1992, pp 9-12. B L Benson, To serve and protect: Privatization and community in criminal justice, New York University Press, New York, 1998, pp 94-113.
  25. The first fiscal at the Cape to be trained in law was Meester Pieter de Neijn who came to the Cape in 1672. Though his predecessors had the standard legal literature of those days at their disposal, none of them had any legal training.
  26. C F J Muller (ed), 500 years: A history of South Africa, Academica, Pretoria, 1981, p 63.
  27. F Welsh, A history of South Africa, Harper Collins, London, 1998, p 53. The first independent fiscal was Meester C J Simons.
  28. Muller, op cit, p 64.
  29. M Wilson & L Thompson (eds), The Oxford history of South Africa: South Africa to 1870, Oxford University Press, London, 1969, p 217.
  30. L Fouché (ed), The diary of Adam Tas, Longmans, Green and Co, London, 1914, pp 221-243.
  31. Wilson & Thompson, op cit, p 222.
  32. Ibid, pp 220-223.
  33. C Beyers, Die Kaapse Patriotte 1779-1791, Juta & Kie, Johannesburg, 1929, pp 15-16.

  34. Ibid, pp 132-139.

  35. H J van Aswegen, Geskiedenis van Suid-Afrika tot 1854, Academica, Pretoria, 1989, p 164.
  36. Muller, op cit, p 111.
  37. Van Aswegen, op cit, p 184.
  38. Ibid.
  39. H Kuipers & C de Bruijn Prince, Staats-almanak voor de Zuid-Afrikaansche Republiek 1898, Staatsdrukkerij, Pretoria, 1897, p 54.
  40. C Heyns & P Coetser, Die ontstaan en ontwikkeling van die amp van die prokureur-generaal van Transvaal, Nuntius 16, November 1986, p 61.
  41. Ordonnantie no 5-1864, paragraph 12, as contained in De locale wetten der Zuid Afrikaansche Republiek 1849-1885, J F Celliers (publisher), Pretoria, 1887, p 273.
  42. Ibid, paragraph 17, p 274.
  43. Wet no 1, section 9, 1874, Regelende de manier van procederen in crimineels saken voor de geregtshoven van landdrosten en heemraden in de Zuid-Afrikaansche Republiek, as contained in De locale wetten der Zuid Afrikaansche Republiek 1849-1885, op cit, p 558.
  44. Ordonnantie no 5-1864, paragraph 46, op cit, p 280.
  45. Gouvernments kennisgewing no 70 of 1867, as contained in De locale wetten der Zuid Afrikaansche Republiek 1849-1885, op cit, p 302.
  46. Wet no 11, section 570, 1883, volksraadbesluit of 4 July 1883, as contained in De locale wetten der Zuid Afrikaansche Republiek 1849-1885, ibid, p 1216.
  47. Ordonnantie no 4-1856, ordonnantie wijzigende de manier van procederen in crimineele zaken in den Oranjevrijstaat, paragraph 3 and 4, as contained in Ordonnantie boek van den Oranjevrijstaat 1854-1877, Bloemfontein.
  48. Ibid, paragraph 71.
  49. Ibid, paragraph 12.
  50. South Africa Act of 1909, section 139. See also section 7 of the Criminal Procedure Act no 31 of 1917.
  51. Criminal and Magistrate’s Courts Procedure (Amendment) Act no 39 of 1926, section 1(3).
  52. Heyns & Coetser, op cit, p 63.
  53. Charles de Villiers (Transvaal) and E W Douglas (Eastern Cape).
  54. P M Bekker, National or super attorney-general: Political subjectivity or judicial objectivity?, Consultus 8(1), April 1995, p 27.
  55. General Law Amendment Act no 46 of 1935, as amended, section 7(4).
  56. Criminal Procedure Act no 56 of 1955, section 5(3), and Criminal Procedure Act no 51 of 1977, section 3(5).
  57. J A d’Oliveira, The office of the attorney-general, Nuntius 23, December 1993, p 70.
  58. According to two previous attorneys-general, they never experienced any real interference from the ministers of justice at the time. See Yutar, op cit, p 136; and d’Oliveira, ibid.
  59. D van Zyl Smit & E Steyn, Prosecuting authority in the new South Africa, paper prepared for workshop of experts on the review of criminal justice in Northern Ireland, Belfast, 9 June 1999, p 4.
  60. S v Ramgobin and Others (SA) 1985 (3) 587 (N) 589.
  61. The Attorney-General Act no 92 of 1992 came into operation on 31 December 1992.
  62. Attorney-General Bill 69-92 (GA).
  63. The Attorney-General Act of 1992 repealed section 3(5) of the Criminal Procedure Act no 51 of 1977 whereby the minister of justice could reverse any decision arrived at by an attorney-general.
  64. According to section (1) of the Attorney-General Act no 92 of 1992, the president determined the salary of attorneys-general, provided that the salary payable to a particular attorney-general "shall not be reduced except by an Act of Parliament."
  65. In terms of section 4 of the Attorney-General Act no 92 of 1992, an attorney-general needed to vacate his office only on reaching the age of 65 years (unless the president extended this for a maximum of two years). Moreover, an attorney-general could be suspended and removed from office, by the president or on request of both houses of parliament in the same session, only on the grounds of misconduct, on account of continued ill-health, or on account of incapacity to carry out his duties of office efficiently. In the instance where the president suspended an attorney-general, both houses of parliament could overrule the president’s decision.
  66. Van Zyl Smit & Steyn, op cit, p 5.
  67. D’Oliveira, op cit, p 71.
  68. Van Zyl Smit & Steyn, op cit, p 5.
  69. Omar plaas vraagteken oor ‘PG’s van apartheid’, Die Burger, 14 November 1994.
  70. Constitution of the Republic of South Africa Act no 108 of 1996, section 179.
  71. Z B du Toit, Groot agterdog heers oor die ‘super-prokureur-generaal’, Rapport, 9 February 1997.
  72. See Ex parte chairperson of the Constitutional Assembly, in recertification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC).
  73. National Prosecuting Authority Act no 32 of 1998. Most of the act came into operation on 16 October 1998.
  74. Ibid, section 3.
  75. Information on the structure of the national prosecuting authority was obtained from Marion Sparg, chief executive officer in the office of the national director (12 June 2000), and Sipho Ngwema, public relations officer in the office of the national director (31 October 2000).
  76. National Prosecuting Authority Act no 32 of 1998, as amended, section 11(1).
  77. Ibid, section 23.
  78. The directors of public prosecutions are appointed by the president after consultation with the minister of justice and the national director of public prosecutions. See ibid, section 13(1)(a).
  79. Ibid, section 6(2).
  80. Ibid, section 24(1)(b).
  81. Ibid, section 7(4)(a), as amended.
  82. Ibid, section 13(1)(c).
  83. Ibid, section 22(1).
  84. Ibid, section 21(1).
  85. Van Zyl Smit & Steyn, op cit, p 9.
  86. National Prosecuting Authority Act no 32 of 1998, section 22(2)(b).
  87. Ibid, section 22(2)(c).
  88. Van Zyl Smit & Steyn, op cit, p 9.
  89. National Prosecuting Authority Act no 32 of 1998, section 22(4)(a).
  90. Ibid, sections 11(1) and 13(1).
  91. Ibid, section 13(1)(c).
  92. Ibid, section 16(1).
  93. The president may, under certain circumstances, extend the terms of office of a national director and deputy national directors who have reached the age of 65 years for up to two years. See ibid, section 12(4).
  94. Ibid, sections 12(6) and (7), and 14(3).
  95. Ibid, section 17(1). Moreover, the salary of a deputy national director may not be less than 85% of the salary of the national director, while the salary of a director may not be less than 80% of the salary of the national director.
  96. Ibid, sections 18 and 19.
  97. Van Zyl Smit & Steyn, op cit, p 9. The salary payable to a deputy director or a prosecutor may, however, only be reduced by an act of parliament. See ibid, section 18(6).

  98. Ibid, section 32(1)(a).
  99. Ibid, sections 32(1)(b) and 41(1).

  100. Ibid, section 24(4)(c).
  101. Ibid, section 7(1A), as amended.
  102. Ibid, section 13(1)(b).

  103. Ibid, section 7(4).
  104. Ibid, section 28(1).
  105. Ibid, section 28(6).
  106. Ibid, section 28(8)(a). The law regarding privilege as applicable to a witness summoned to give evidence in a criminal case in a magistrate’s court does apply, however, in relation to such a summoned person. Moreover, the answers such a person gives — with a few minor exceptions — may not be admissible against him in any criminal proceedings.
  107. Ibid, section 29.
  108. Ibid, section 24(2).
  109. See South Africa — The criminal justice system and the protection of human rights: The role of the prosecution service, Amnesty International, AFR 53/01/98, February 1998, pp 9-13.
  110. M Schönteich, How organised is the state’s response to organised crime?, African Security Review 8(2), 1999, p 9.
  111. For example, traps and undercover operations are useful tools for police officers investigating the activities of organised crime syndicates. In terms of section 252A(4) of the Criminal Procedure Act no 51 of 1977 as amended, an attorney-general (now a director of public prosecutions) may issue general or specific guidelines regarding the supervision and control of traps and undercover operations, and may require any police officer to obtain his written approval in order to set a trap or engage in an undercover operation at any place within his area of jurisdiction, and in connection therewith comply with his instructions.
  112. Investigation of Serious Economic Offences Act no 117 of 1991.
  113. For a summary of the main objections to the draft National Prosecuting Authority Bill see M Schönteich, National boss for attorneys general, Fast Facts 3/97, March 1997, p 5. The Democratic Party, Inkatha Freedom Party and National Party voted against the passing of the National Prosecuting Authority Bill in the national assembly, while the African National Congress, Pan Africanist Congress and the African Christian Democratic Party supported it. See Opposition parties’ no to new ‘super A-G’ Bill, The Citizen, 10 June 1998.
  114. National Prosecuting Authority Bill, clauses 6(1) and 10(1).
  115. Memorandum on behalf of the parliamentary committee of the general council of the bar of South Africa regarding the National Prosecuting Authority Bill 1997, 13 December 1996, p 5.
  116. A M J Pinnock, president of the association of law societies of the RSA, letter to the minister of justice, Dullah Omar, 29 November 1996.
  117. National Prosecuting Authority Act no 32 of 1998, section 9(1)(a).
  118. National Prosecuting Authority Bill, clause 3(5).
  119. Draft comment by the society of state advocates on the proposed National Prosecuting Authority Bill, nd, p 3.
  120. Memorandum on behalf of the parliamentary committee of the general council of the bar of South Africa regarding the National Prosecuting Authority Bill 1997, 13 December 1996, pp 3-4.
  121. E Ferreira, Ons sal nie pionne word, sê Frank Kahn oor plan vir super-PG, Die Burger, 10 December 1994.
  122. National Prosecuting Authority Act, section 22(2)(b).
  123. Ibid, section 22(2)(c).
  124. J Sarkin & S Cowen, The draft National Prosecuting Authority Bill: A critique, South African Criminal Journal 10(1), 1997, p 70.
  125. Statement by Dullah Omar, chairperson, African National Congress, Western Cape, 6 March 1997.
  126. SAIRR, South Africa survey 1999/2000, South African Institute of Race Relations, Johannesburg, 1999, p 341. See also W Hlongwa & S ka‘Nkosi, Judge blasts ‘ANC’ super AG, Mail & Guardian, 11 December 1998; Politics subverts justice system, The Citizen, 14 December 1998.
  127. M Cato, ANC captures the judiciary, Finance Week, 23-29 July 1998, p 34.
  128. H Barrell & M Soggott, Nice guy, but can he do the job?, Mail & Guardian, 17 June 1998.
  129. D Gibson, The independence of the judiciary compromised?, press release, 16 July 1998.
  130. T Lamberti, New legal chief vows to fight off politicians, Business Day, 17 July 1998.
  131. A Koopman, Super AG promises fairness and unity, Cape Argus, 29 July 1998.
  132. B Ngcuka, speech read at the national prosecutors’ conference, Somerset West, August 1998.
  133. B Ngcuka, Implementing the vision, values and ethos of a new prosecution service, transcript of speech contained in Report of the proceedings: Social context and strategic planning workshop, Winterton, 18-22 January 1999, p 25.
  134. National Prosecuting Authority Act, section 21(2).
  135. Ngcuka, 1999, op cit, p 27.
  136. Draft preliminary report to the national director of public prosecutions on the establishment of the national office and other related issues, 1998, pp 7-10. The report is also known as the Ramaite report after the leader of the team of consultants, Robinson Ramaite.
  137. National Prosecuting Authority of South Africa Policy Manual, op cit, foreword.
  138. Ibid.
  139. National Prosecuting Authority Act, section 21(1)(a).
  140. Inaugural Annual Report 98/99, National Prosecuting Authority of South Africa, Pretoria, p 6.
  141. National Prosecuting Authority of South Africa Policy Manual, op cit, p A.2.


  142. Ibid, pp A.4-A.6.
  143. Ibid, p A.9.
  144. Ibid, p A.2.
  145. Ibid, p A.11.
  146. National Prosecuting Authority Act, section 21(1)(b).
  147. National Prosecuting Authority of South Africa Policy Manual, op cit, p B.1.
  148. Ibid, p B.4.
  149. Ibid, p B.72.
  150. Ibid, p B.4.
  151. Ibid, p B.6.
  152. Ibid, pp B.16 — B.21.
  153. Ibid, pp B.28 and B.50.
  154. Ibid, pp B.61 and B.63.
  155. Ibid, p B.121.
  156. National Prosecuting Authority Act, section 22(6)(a).
  157. National Prosecuting Authority of South Africa Policy Manual, op cit, Preamble to the code of conduct for members of the national prosecuting authority, p C.1.
  158. Ibid, pp C.2-C.4.
  159. National Prosecuting Authority Act, section 22(4)(f).
  160. The United Nations guidelines on the role of prosecutors were adopted by consensus by the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 7 September 1990.
  161. S Ngwema, public relations officer in the office of the national director of public prosecutions, Interview,
    Pretoria, 30 October 2000.
  162. National Prosecuting Authority of South Africa Policy Manual, op cit, p B.115.
  163. D Omar, Press statement on the establishment of an Investigating Directorate on Organised Crime and Public Safety, 17 September 1998.
  164. Inaugural Annual Report 98/99, National Prosecuting Authority of South Africa, op cit, p 6.
  165. J Steinberg, Anti-hijacking unit gets tested next week, Business Day, 23 July 1999.
  166. Inaugural Annual Report 98/99, National Prosecuting Authority of South Africa, op cit, p  7.
  167. T Sherman, Issues facing management of the prosecution, transcript of a speech contained in Report of the proceedings: Empowering prosecutors for effective and responsive prosecutions in the new millennium, East London, 9-12 November 1999, pp 22-23.
  168. The office for serious economic offences was established by section 2 of the Investigation of Serious Economic Offences Act no 117 of 1991.
  169. P Atkinson, The Office for Serious Economic Offences (OSEO) of South Africa, ISSUP Bulletin 3/97, pp 1-2.
  170. Inaugural Annual Report 98/99, National Prosecuting Authority of South Africa, op cit, pp 49-50.
  171. Government Gazette 417(20997), 24 March 2000.
  172. Report: International anti-corruption expert round table, Pretoria, 31 May — 2 June 2000, p 28.
  173. T Mbeki, address at the opening of parliament, Cape Town, 25 June 1999.
  174. P M Maduna, minister of justice and constitutional development, snap debate on the Directorate of Special Operations, National Assembly, Cape Town, 11 November 1999.
  175. Special priority crimes investigation agency established, press release issued by the ministry of justice and constitutional development, 8 July 1999.
  176. National Prosecuting Authority Amendment Bill, B39B-2000. The National Prosecuting Authority Act, no 61 of 2000 came into operation in January 2001.
  177. P M Maduna, minister of justice and constitutional development, speaking at the national assembly vote on the National Prosecuting Authority Amendment Bill B39B-2000, Cape Town, 31 October 2000.
  178. National Prosecuting Authority Act, section 7(1)(a), as amended.
  179. Offences, or criminal or unlawful activities committed in an ‘organised fashion’ include the planned, ongoing, continuous or repeated participation, involvement or engagement in at least two incidents of criminal or unlawful conduct that has the same or similar intent, results, accomplices, victims or methods of commission, or otherwise are related by distinguishing characteristics.
  180. P Pigou, Let the prosecutions begin …, Mail & Guardian, 3 November 2000.
  181. National Prosecuting Authority Act, section 31(1), as amended. The president may also designate any other cabinet member to the committee from time to time. The committee is chaired by the minister of justice and constitutional development.
  182. W Hofmeyr, Combating organised crime: The challenges of implementing new legislation, paper read at a regional seminar on combating organised crime in the SADC region, Pretoria, 27 February 2001.
  183. Maduna, 11 November 1999, op cit.
  184. C MacAdam, deputy director of public prosecutions, KwaZulu-Natal, paper delivered at the 2000 annual KwaZulu-Natal conference of the Security Association of South Africa, Durban, 7 June 2000.
  185. National Prosecuting Authority Act, section 7(3) and 7(4), as amended.
  186. A M Omar, minister of justice, Press release on the establishment of an Investigating Directorate on Organised Crime and Public Safety, 17 September 1998.
  187. National Prosecuting Authority Act, section 30(3), amended.
  188. National Prosecuting Authority Act, section 19B, as amended.
  189. National Prosecuting Authority Act, section 19C, as amended.
  190. Ibid, section 19C(1), as amended.
  191. Maduna, 11 November 1999, op cit.
  192. Ibid.
  193. National Prosecuting Authority Act, section 33(2).
  194. Ibid, section 36(5).
  195. Estimate of national expenditure 2001, national treasury, RP 30/2001, Pretoria, p 466.
  196. National Prosecuting Authority Act, section 43A, as amended.
  197. Policemen upset over Scorpions’ higher pay, Pretoria News, 26 October 2000.
  198. SAPS-Scorpions pay gap to be cut, Tshwete says, The Star, 1 November 2000.
  199. Maduna, 31 October 2000, op cit.
  200. T Lamberti, For justice, and the pay is not bad, Business Day, 8 December 1999.
  201. R Richards, head: investigations and training, directorate of special operations, speaking at the 2000 annual national conference of the Security Association of South Africa, Midrand, 12 October 2000.
  202. J Carlin, Dynamic duo putting sting into Scorpions, The Sunday Independent, 7 May 2000.
  203. See, for example, J Heard & C Paton, Scorpions take centre stage, Sunday Times, 12 December 1999; P Kirk, Police feel the Scorpions’ sting, Mail & Guardian, 23 June 2000; T Lamberti, Scorpions crack down on scheme, Business Day, 13 July 2000; B van Hees, Scorpions move in, The Citizen, 31 July 2000; SAPS left the Scorpions without their sting, Pretoria News, 19 January 2001.
  204. A High, Police and Scorpions fight for bus-attack glory, Sunday Times, 20 August 2000.
  205. As has been argued, for example, by one analyst. See, E Pelser, Scorpions bill may be structure over substance, Business Day, 8 August 2000.
  206. Conflict between the SAPS and the Scorpions has already received some media attention. See, for example, H Ludski, It’s turf war: As South Africa’s crime wave grows, police chief Selebi and Scorpions’ head Ngcuka fight over territory, Sunday Times, 9 April 2000; J Rademeyer, Scorpions, police wrangle over arrests, Pretoria News, 9 November 2000; and SAPS, Scorpions in dog fight: Row over whether police will oppose bail of six cops involved in controversial training video, Pretoria News, 15 November 2000.
  207. P Sonn, Scorpions, transcript of a speech contained in Report of the proceedings: Empowering prosecutors for effective and responsive prosecutions in the new millennium, op cit, p 70.
  208. National Prosecuting Authority Act, section 26(2), as amended.
  209. Scorpions meant to ‘support’ SAPS, Business Day, 7 September 2000.
  210. M Shaw, Organised crime in post-apartheid South Africa, ISS Paper 28, Institute for Security Studies, Halfway House, January 1998, p 1.
  211. CIMC, The incidence of serious crime between 1 January and 31 December 1997, Quarterly report 1/98, Crime Information Management Centre, SAPS, Pretoria, 27 March 1998, p 25.
  212. The SAPS defines a crime syndicate as: "An organised group of people sharing membership of a structure which, by means of unlawful activities and conspiracy, is engaged in illegally obtaining, receiving and supplying goods and services. Such a conspiracy violates the law to enrich or empower those involved and utilises a division of labour and planning to achieve its goals."
  213. CIMC, The incidence of serious crime: January to March 1997, Quarterly Report 2/97, Crime Information Management Centre, SAPS, Pretoria, 13 June 1997, pp 23-46.
  214. Shaw, 1998, op cit, p 2.
  215. Section 35(1) of the Criminal Procedure Act no 51 of 1977 determines in part as follows: "A court which convicts an accused of any offence may declare … any weapon, instrument or other article by means whereof the offence in question was committed or which was used in the commission of such offence; or … if the conviction is in respect of a serious offence listed in the Act, any vehicle, container or other article which was used for the purpose of or in connection with the commission of the offence in question … and which was seized under the provisions of this Act, forfeited to the state."
  216. According to section 25(1) of the Drugs and Drug Trafficking Act no 140 of 1992, whenever any person is convicted of an offence under the Act, the court convicting him shall declare any drug or property by means of which the offence was committed, or any vehicle, vessel, aircraft, container or other article which was used for the purpose of or in connection with the commission of the offence, forfeited to the state.
  217. Prevention of Organised Crime Act no 121 of 1998, chapter 5.
  218. BWebb, Ngcuka warns criminals they have everything to lose, Pretoria News, 1 March 2001.
  219. Ibid, chapter 6.
  220. W Hofmeyr, The importance of asset forfeiture in the war against crime, presentation, Institute for Security Studies, Pretoria, 11 May 2000.
  221. See, for example, FEAR (Forfeiture Endangers American Rights), <www.fear.org> , or T G Reed, American forfeiture law: Property owners meet the prosecutor, Policy Analysis 179, 29 September 1992.
  222. J Redpath, Notes on forfeiture: an international perspective, with emphasis on civil asset forfeiture, seminar paper, Institute for Security Studies, Pretoria, 11 May 2000.
  223. In June 1999, the US House of Representatives passed the Civil Asset Forfeiture Reform Bill; a compromise version was passed by the Senate in March 2000.
  224. For example, forensic evidence that cash notes to the value of R140 000 were physically tainted with illegal drugs, has in one instance satisfied the burden of proof.
  225. For example, the National Association of Democratic Lawyers, the South African Institute of Race Relations and the Human Rights Committee of South Africa. See, for example, M Schönteich, Beware of the company you keep, Fast Facts 6/98, June 1998, p 7.
  226. W Hofmeyr, Asset forfeiture, transcript of a speech contained in Report of the proceedings: Empowering prosecutors for effective and responsive prosecutions in the new millennium, op cit, p 78.
  227. The National Director of Public Prosecutions v W Basson, High Court of South Africa (Transvaal Provincial Division), Case No 22421/99; The National Director of Public Prosecutions v Gavin Gerald Carolus, High Court of South Africa (Cape of Good Hope Provincial Division), Case No 3348/99; The National Director of Public Prosecutions v Pieter Johannes Meyer, High Court of South Africa (Durban and Coast Local Division), Case No 6441/99. The state appealed in the Carolus case but lost the appeal: The National Director of Public Prosecutions v Gavin Gerald Carolus, Supreme Court of Appeal of South Africa, Case No 162/99.
  228. W Hofmeyr, The challenge of implementing new legislation: Asset forfeiture in the war against crime, paper read at a regional sminar on combating organised crime in the SADC region, Pretoria, 27 February 2001.
  229. Prevention of Organised Crime Act, chapter 7.
  230. Hofmeyr, Asset forfeiture, op cit, p 79.
  231. Hofmeyr, The importance of asset forfeiture in the war against crime, op cit.
  232. National Prosecuting Authority of South Africa mid term report, op cit, p 35.
  233. Domestic & Sex Crimes 1(1), June 2000, p 2.
  234. S Rasool, Violence against women survey: Summary of main findings, Nedbank ISS Crime Index 4(4), July-August 2000, pp 26-28.
  235. National Prosecuting Authority of South Africa Policy Manual, op cit, p B.50.
  236. T Majokweni, director of the Sexual Offences and Community Affairs Unit, Interview, Pretoria, 25 July 2000. At the time of the interview, another three ‘one-stop’ centres were planned for Durban, Johannesburg and Soweto.
  237. T Majokweni, Dealing with rape: An inter-sectoral approach, Domestic & Sex Crimes 1(1), June 2000, p 4.
  238. V Francis, A rape investigation in the Western Cape: Building community-driven strategies to strengthen the investigation and prosecution of rape, Bureau of Justice Assistance, Cape Town, March 2000, pp 23-24.
  239. National Prosecuting Authority of South Africa Policy Manual, op cit, p B.50.
  240. Majokweni, Interview, op cit.
  241. Majokweni, Offences against women and children, transcript of a speech contained in Report of the proceedings: Empowering prosecutors for effective and responsive prosecutions in the new millennium, op cit, p 82.
  242. Majokweni, Interview, op cit.
  243. S Rasool, Sexual offences courts: Do more courts mean better justice?, Nedbank ISS Crime Index 4(2), March-April 2000, p 11.
  244. S Stanton, M Lochrenberg & V Mukasa, Improved justice for survivors of sexual violence? Adult survivors’ experiences of the Wynberg Sexual Offences Court and associated services, Cape Town, 1997. See also, C Smith, Rape courts are no use on their own, Mail & Guardian, 17 March 2000.
  245. Majokweni, Interview, op cit.
  246. National Prosecuting Authority of South Africa mid term report, op cit, p 38.
  247. Majokweni, 1999, op cit, pp 83-84.
  248. Ibid, p 84.
  249. SALC, Sexual offences: the substantive law, Discussion paper 85, project 107, South African Law Commission, Pretoria, August 1999.
  250. National Prosecuting Authority of South Africa mid term report, op cit, p 8.
  251. TBVC states were the nominally independent black homelands of Transkei, Bophuthatswana, Venda and Ciskei.
  252. H Scheepers, head: prosecutorial training, Justice College, Interview, Pretoria, 16 August 2000.
  253. C van der Riet, head: Justice College, Interview, Pretoria, 16 August 2000.
  254. J Henning, special director: court management unit, national prosecuting authority, Interview, Pretoria, 2 August 2000.
  255. In June 2000, the court management unit identified 349 prosecutors who urgently required training in order to function effectively in their positions.
  256. Van der Riet, op cit.
  257. National Prosecuting Authority of South Africa mid term report, op cit, p 7.
  258. Much of the information contained in this chapter has been taken and updated from M Schönteich, Assessing the crime fighters: The ability of the criminal justice system to solve and prosecute crime, ISS Paper 40, Institute for Security Studies, Pretoria September 1999.
  259. Statistics of offences and of penal institutions, 1949 to 1962, Special Report 272, Republic of South Africa Bureau of Statistics, Pretoria, 1964.
  260. For example, pass law-related offences, or the offence of ‘possession of firearm and ammunition by non-White’.
  261. Crimes: prosecutions and convictions with regard to certain offences, CSS Report 00-11-01 (1995/96), Central Statistical Service, Pretoria, 1998. (After 1962, annual prosecution and conviction figures were no longer compiled by calendar year, but cover the period from 1 July to 30 June. At the time of writing, the 1995/96 period was the latest for which prosecution and conviction figures were available from the Central Statisticical Service.)
  262. This includes the 30 most serious and prevalent offences only. Minor offences such as trespassing, urinating in public and traffic offences are excluded.
  263. Crime in South Africa for the period January to December 1999. Fax from Captain M J Krügel, Crime Information Analysis Centre, Pretoria, 20 August 2000.
  264. For a technical description of these categories see South African Police Service standing order no 392, 22 September 1995. For a more general description see J J Claasen, Conviction rates, Crime Information Analysis Centre, SAPS Detective Service: Head Office, February 1999.
  265. Criminal Procedure Act no 51 of 1977, section 6(a), as amended.
  266. In terms of section 195 of the Criminal Procedure Act no 51 of 1977, the state may not compel one spouse to give evidence against the other for the prosecution in criminal proceedings in respect of a range of offences listed in the act (including any offence committed against the person of either of them, such as assault).
  267. Constitution of the Republic of South Africa Act no 108 of 1996, section 35(3)(d).
  268. Most detectives are investigating upwards of 50 cases at any one time. See M Shaw, South Africa: Crime in transition, ISS Paper 17, Institute for Security Studies, Halfway House, March 1997, p 4.
  269. Criminal Procedure Act no 51 of 1977, section 6(a), as amended.
  270. See ibid, section 6(b).
  271. See ibid, section 77.
  272. Ibid, section 57(1)(a).
  273. Caution needs to be exercised when comparing the annual number of cases recorded with the annual number of cases prosecuted and convicted. Cases recorded during one year are often prosecuted during the following year. For example, the investigation of a complicated murder case recorded in December 1998 may only be finalised in mid-1999. The prosecution of the case may occur only in late-1999. There was no dramatic change in the number of crimes recorded from one year to the next between 1996 and 1999, however. Cases prosecuted (and those ending in a successful prosecution) as a proportion of reported cases also did not change much between 1996 and 1999. As a result, the proportion of prosecutions and convictions resulting from actual cases recorded during a given time would not vary much from the proportions calculated in this monograph. This is confirmed by a study which tracked the outcome of some 15 500 randomly selected individual cases recorded by the police in eight police areas. The outcome of each case was checked on average more than two years after the crime was recorded by the police. The study analysed three violent crime types: murder, rape and robbery with aggravating circumstances. The study found that 5.7% of the sampled violent crime cases resulted in a conviction two years after the crimes were recorded by the police (while 4.4% had not been finalised). See R Paschke, Report on rate of conviction and other outcomes in eight South Africa police areas, South African Law Commission, Pretoria, 2000.
  274. A 1996 survey of people on the Cape Flats (outside Cape Town) found that most disapproved of and were dissatisfied with the performance of the SAPS and the courts. Overall, perceptions of the police and the courts were worse among those who had been victimised. Moreover, perceptions of the police and the courts were the most negative among those who had laid a charge and had contact with the police and the courts. See, C Africa et al, Crime and community action: Pagad and the Cape Flats, 1996-1997, POS Reports 4, June 1998, Idasa, Cape Town, p 11.
  275. The Department of Statistics did not release figures for the number of cases prosecuted for the years 1970/71 to 1976/77. It is consequently impossible to calculate the proportion of cases which were prosecuted successfully during these years. Statistics South Africa discontinued the release of prosecution and conviction statistics after its 1995/96 report. All figures used for the period after 1995/96 come from the SAPS’s Crime Information Analysis Centre (CIAC) which releases statistics by calendar year. For methodological reasons, the pre and post-1995/96 statistics are not always strictly comparable. Statistics South Africa included petty offences (such as trespassing or gambling) in its reports, while the CIAC’s reports cover the 30 most serious and prevalent offences only. When analysing South African crime statistics over time, it is important to remember that the ‘independent’ homelands were excluded from official South African crime statistics. Thus, crimes reported to police stations in the Transkei after October 1976, Bophuthatswana after December 1977, Venda after September 1979, and Ciskei after December 1981, are not included in this monograph. The ‘independent’ homelands were reincorporated into the rest of the country in 1994. See M Schönteich, Crime increase partly a statistical quirk, Fast Facts 3/99, March 1999, p 2.
  276. 1995/96 is the latest period for which figures are available from Statistics South Africa.
  277. CIAC, The incidence of serious crime in South Africa between January and December 1999, Semester report 1/2000, Crime Information Analysis Centre, SAPS, Pretoria, 2000.
  278. SAIRR, South Africa survey 1996/1997, South African Institute of Race Relations, Johannesburg, 1997, pp 65-68. See also M Shaw, Partners in crime? Crime, political transition and changing forms of policing control, Research report 39, Centre for Policy Studies, Johannesburg, June 1995, pp 9-28.
  279. Unless otherwise indicated, the performance-related statistics used in this section are taken from a document entitled National statistics (undated) compiled by the Court Management Unit of the national prosecuting authority, and information supplied by Advocate Marnus Steyn of the Court Management Unit.

  280. M Steyn, Court Management Unit, national prosecuting authority, Interview, Pretoria, 23 October 2000.
  281. National Prosecuting Authority of South Africa mid-term report, 2000, p 8.
  282. Ibid.
  283. Z Venter, Ngcuka blasts justice ‘prima donnas’, Pretoria News, 23 October 2000. See also D Ball, Race to clear 10-year case backlog in Umtata, Sunday Independent, 19 March 2000.
  284. That is from 9h00 to 11h00; 11h15 to 13h00, and 13h45 to 16h00.
  285. It needs to be borne in mind that individual prosecutors throughout the country were responsible for keeping a record of statistics on hours lost in their courts. This methodology lends itself to potential bias as some prosecutors would have hesitated to blame themselves for lost court hours.
  286. J J Swart, president of the National Union of Prosecutors of South Africa, Telephonic interview, 7 April 1997, and Hansard [NA:Q] 6, 16 April 1998, column 874. In 1995 there was a 40% turnover of prosecutors at the Johannesburg magistrate’s court; see P Naidoo, Justice chaos: Advocates start work-to-rule campaign, Cape Argus, 14 July 1996. At the Durban magistrate’s court, about one-third of the prosecutors had resigned in the 18 months between the beginning of 1995 and June 1996; see L Seeliger, Durban’s courts in crisis, The Natal Mercury, 20 June 1996.
  287. F W Kahn, 1997 annual report submitted by the attorney-general of the Cape of Good Hope in terms of section 5(6)(a) of the Attorney-General Act no 92 of 1992, Cape Town, p 15; A P de Vries, Year report: Office of the attorney-general Witwatersrand Local Division, 1 January 1997 — 31 December 1997, Johannesburg, p 30.
  288. I de Lange, ‘Bungling’ Justice officials panned, The Citizen, 9 April 1998.
  289. R Meintjes, chairperson for the Society of State Advocates, Telephonic interview, 2 April 1997. In June 1996, the average experience of district court prosecutors at the Durban magistrate’s court was approximately one year. On average, they had to deal with up to 15 cases in court a day. This included liaising with half a dozen legal representatives and attending to up to 20 witnesses, policemen and the public. See Seeliger, op cit.
  290. Hansard [NA:Q] 9, 20 August 1997, column 2173.
  291. L Fernandez, Profile of a vague figure: The South African public prosecutor, South African Law Journal 110(1), 1993, p 117.
  292. Hoexter Commission of Enquiry, Second Interim Report RP 35/1981.
  293. Ibid, p 2.
  294. According to Mr Rudi Krause, a spokesperson for the prosecutors at the Johannesburg magistrate’s court, an average prosecutor in the regional court has to deal with about 10 cases per day, while maintenance court prosecutors have to study between 40 and 50 files daily for their preparations. In contrast, attorneys are bound by the law society to prepare for one trial per day only; see Sowetan, 23 July 1996. The deputy minister of justice, Dr Manto Tshabalala-Msimang, referring specifically to traffic courts, said that there was "immense pressure on the courts caused by the high levels of crime ... Our courts are not coping", she said; see The Argus, 24 July 1996.
  295. A P de Vries, Year report: Office of the attorney-general Witwatersrand Local Division, 1 January 1997 — 31 December 1997, Johannesburg, p 30.
  296. M Schönteich, Lack of conviction: Prosecution’s poor performance, Nedcor ISS Crime Index 3(2), March-April 1999, pp 5-8. See also J Malala, Waiting to implode: Justice department vacancies remain open for up to 12 months, Financial Mail, 23 May 1997, pp 42-43.
  297. G Chuenyane, Prosecutors struggle with load, Sowetan, 12 October 2000.
  298. Schönteich, 1999, op cit, pp 5-8. Department of Justice annual report, 1998/1999, p 2.
  299. SAIRR, 1997, op cit, pp 65-66; CIAC, Semester report 1/2000, op cit.
  300. The figures in graph 17, as supplied by the department of justice, do not indicate the number of prosecutors employed at the same time of each of the years for which figures are given. The figures are applicable to the following months: May 1994, December 1995, June 1996, November 1997, September 1998, December 1999 and October 2000.
  301. The only research found is a study conducted by an undergraduate student from Twente University in the Netherlands: A Aanstoot, Redenen voor het vertrek van Officieren van Justitie uit de Zuidafrikaanse staatsdienst, Potchefstroom, January 1998.
  302. Salary figures used in this section were accurate at the time of writing in February 2001.
  303. Commission of Inquiry into the Rationalisation of the Provincial and Local Divisions of the Supreme Court (the Hoexter commission), First Interim Report, 7 March 1997, volume 1, chapter 6, p 67.
  304. The total salary package of a beginner prosecutor earning a gross salary of R58 849, including medical aid and pension benefits, is approximately R95 000 per annum.
  305. See The graduate: Newsletter of the HSRC register of graduates 1999, 1999, pp 12-17.
  306. Prosecutors and junior state advocates are generally promoted to a higher salary rank after every three years of service (except prosecutors on the two lowest ranks where promotion to the next rank should occur every 18 months). However, prosecutors who have performed exceptionally well in their work are ‘preferentially promotable’ after being in a salary rank for two years only. Prosecutors can also be ‘promoted out of turn’ after being in a salary rank for two-and-a-half years.
  307. National Prosecuting Authority Act, section 17(1)(a).
  308. D Granger, AGs quit over poor pay, Cape Times, 3 July 1996.
  309. Prosecutors to get increases before Xmas, SAPA, 9 December 1999.
  310. S Meyer, senior public prosecutor, Court Management Unit, national prosecuting authority, Interview, Pretoria, 23 October 2000.
  311. T Lamberti, Prosecutors take pay row to Maduna, Business Day, 1 August 2000.
  312. M van der Merwe, regional court prosecutor and president of the National Union of Prosecutors of South Africa, Interview, Pretoria, 21 April 2000. The Society of State Advocates of South Africa suggests that, once experience levels are taken into account, prosecutors deserve higher salaries than magistrates, given the formers’ responsibilities and workload.
  313. For more detailed information on prosecutors’ main duties and functions see National Prosecuting Authority of South Africa Policy Manual, op cit, p A.2.
  314. Inaugural Annual Report 98/99, National Prosecuting Authority of South Africa, op cit, p 22.
  315. Petition by the National Union of Prosecutors of South Africa to attorneys-general, July 1997, paragraph A.1.
  316. J J Swart, president of the National Union of Prosecutors of South Africa, letter to the author, 5 May 1997.
  317. Naidoo, op cit, 14 July 1996.
  318. Advocates question govt’s crime stance, The Citizen, 27 June 1997.
  319. Petition by the National Union of Prosecutors of South Africa, op cit, paragraph D.
  320. E Gootman, Prosecutors protest over pay, Cape Times, 11 July 1997.
  321. A M Omar, press statement, Cape Town, 21 August 1997.
  322. T Lamberti, Ban adds to growing pressure on employees, Business Day, 3 November 1998.
  323. Omar, Kahn at odds over overtime, Business Day, 19 January 1998.
  324. S Lieberum, Prosecutors’ sentence: bleak Xmas, The Citizen, 11 December 1998.
  325. T Lamberti, Ngcuka apologises for delay of salary increases, Business Day, 15 December 1998.
  326. Van der Merwe, Interview, op cit.
  327. S Bothma, Ngcuka scoffs at prosecutors’ rise, Business Day, 23 December 1998.
  328. T Lamberti, Omar to oppose urgent interdict by prosecutors, Business Day, 20 January 1999.
  329. T Lamberti, CCMA to hear prosecutors’ case, Business Day, 26 January 1999.
  330. The main organisations and unions representing prosecutors and state advocates in salary negotiations are the National Union of Prosecutors of South Africa (NUPSA), the Society of State Advocates of South Africa (a registered trade union), the Public Servants’ Association (PSA), the National Union of Public Service and Allied Workers (NUPSAW), and the National Education, Health and Allied Workers’ Union (NEHAWU).
  331. C Powers, Prosecutors agree to ‘historic’ salary deal, The Star, 1 April 1999.
  332. B Ngcuka, Winning the war against crime, presentation to the Enterprise Forum, Sandton, 30 September 1999.
  333. Public Service Co-ordinating Bargaining Council resolution, 31 March 1999, Pretoria, paragraph 4.1.
  334. K Liebenberg, Court officials win increase battle, The Citizen, 27 May 1999.
  335. T Lamberti, Prosecutors, government set to end dispute today, Business Day, 8 June 1999.
  336. Govt ‘cannot compete’, Sowetan, 28 June 1999.
  337. Prosecutors to get increases before Xmas, op cit.
  338. Meintjes, Telephonic interview, op cit.
  339. E Momberg, Go-slow: officials risk jobs, The Citizen, 20 October 2000.
  340. No money for big pay rise, says SA’s top prosecutor, Business Day, 30 October 2000.
  341. R Brand, Anger as president’s men get extra 15.5%, The Star, 17 October 2000.
  342. MPs’ increases a slap in the face — Cosatu, SAPA, 23 October 2000.
  343. H Bakker, Senior Public Prosecutor, Port Elizabeth magistrate’s court, telephonic interview, 23 February 2001.
  344. Estimates of national expenditure 2001, National Treasury, Pretoria, RP 30/2001, p 459.
  345. In the small northern KwaZulu-Natal town of Utrecht, for example, the lone district court prosecutor has been prosecuting for 14 years, but cannot advance beyond her district court position unless she is prepared to commute to Newcastle where the nearest regional courts are situated.
  346. The Sunday Independent, 25 May 1997; Beeld, 5 June 1996. See also, A P de Vries, Office of the Attorney-General Witwatersrand Local Division, annual report 1 January 1996 — 31 December 1996, Johannesburg, pp 2-4.
  347. J Perlman, With scant help, justice tries to keep a stern face amid a fog of crime, Sunday Independent, 25 May 1997. See also J A d’Oliveira, Attorney-general: Transvaal report, 1 January 1997 to 31 December 1997, Pretoria, paragraphs 7.6 and 12.3(f); M T van der Merwe, Office of the attorney-general: Free State report, 1 January 1997 — 31 December 1997, Bloemfontein, pp 3-4.
  348. Observations of the author, 23 May 2000.
  349. J Perlman, Prosecutors losing patience with justice ministry’s hollow promises, Sunday Independent, 3 August 1997.
  350. This was, for example, the case for many years at the Pinetown district court prosecutors’ offices until 1999 when a new courtbuilding was completed (observations of the author). This is also the case at the Madadeni magistrate’s court where the courts and offices are housed in what used to be an agricultural school (observations of the author, 24 March 2000).
  351. See, for example, J Goko, Police to get tough on court security, The Citizen, 21 August 1997; I de Lange, Maduna anger at lax security in High Court, The Citizen, 11 February 2000; Move to protect court men, The Citizen, 16 May 2000.
  352. A P de Vries, Year report: Office of the attorney-general, Witwatersrand local division, 1 January 1996 — 31 December 1996, Johannesburg, paragraph 1.2.2.
  353. J Ncube, Courtrooms of fear, Sowetan, 15 February 1999.
  354. P Setsetse, spokesman for the minister of justice and constitutional development, as reported on Radio Jacaranda, 8h00 news, 11 September 2000.
  355. Ncube, Courtrooms of fear, op cit.
  356. C Sawyer, Face of justice transformed, Cape Argus, 6 August 1997.
  357. A P de Vries, Year report: Office of the attorney-general Witwatersrand Local Division, 1 January 1997 — 31 December 1997, Johannesburg, paragraph 2.1.3.
  358. M Schönteich, Justice delayed …, Fast Facts 8/97, August 1997, p 1.
  359. C F du Plessis, Report by the attorney-general of the Northern Cape to the minister of justice in terms of section 5(6) of the Attorney-General Act, No. 92 of 1992, for the year 1997, Kimberley, February 1998, p 3.
  360. De Vries, 1997, op cit, paragraph 2.1.4.
  361. R Morris, Justice reels under exodus of lawyers, Cape Times, 18 August 1998.
  362. A Jeffery, Presuming guilt and rewriting the law, Fast Facts 7/97, July 1997, p 2.
  363. D Cavernelis, Lawyers clash on Omar’s view of justice, Cape Argus, 9 July 1997.
  364. A Bauer, senior state advocate and Western Cape chairman of the National Union of Prosecutors of South Africa, Interview, Cape Town, 29 March 2000; J Henning, director of the national prosecuting authority’s court management unit, Interview, Pretoria, 2 August 2000.
  365. B Ngcuka, 1999, op cit, p 25.
  366. W Hartley, Ngcuka outlines strategy to combat bombings, Business Day, 13 September 2000.
  367. J J Noëth, director-general of justice, fax to the author, 25 November 1998; Department of justice annual report, 1998/1999, op cit, p 2; P Soggot & L Stack, Closing the gap between policy and implementation in South Africa: The justice sector, draft report, Centre for Policy Studies, Johannesburg, February 2001, p 89.
  368. F van Zyl, Northern Province chairman of the National Union of Prosecutors of South Africa, Interview, Pretoria, 17 February 2000.
  369. M Schönteich, The story of a good law, its bad application, and the ugly results: A policy briefing and analysis of the South African bail law (Act 75 of 1995), and its inadequate application due to an ineffective criminal justice system, Spotlight 1/97, July 1997, p 28.
  370. Story recounted by Advocate Jan Henning, director of the court management unit of the national prosecuting authority. See J Henning, Organisational processes and systems, transcript of speech contained in Report of the proceedings: Social context and strategic planning workshop, op cit, pp 37-38.
  371. M Dyson, Senior Public Prosecutor: training, Durban magistrate’s court, Interview, Durban, 6 June 2000.
  372. For example, in 1996, only 135 of the 210 prosecutors falling under the jurisdiction of the attorney-general of the Cape of Good Hope had attended the basic prosecutors’ course. See F W Kahn, 1997 annual report submitted by the attorney-general of the Cape of Good Hope in terms of section 5(6)(a) of the Attorney-General Act no. 92 of 1992, Cape Town, p 8.
  373. Henning, Interview, op cit.
  374. Van der Merwe, Interview, op cit.
  375. In mid-2000, some 149 out of 936 district courts in the country were single-prosecutor courts.
  376. Van Riet, Interview, op cit.
  377. Constitution of the Republic of South Africa Act no 108 of 1996, section 35(3)(h).
  378. Criminal Procedure Act no 51 of 1977, section 217(1)(b)(ii), as amended.
  379. S V Zuma and Others 1995 (2) SA 642 (CC).
  380. Drugs and Drug Trafficking Act no 140 of 1992, section 21(1)(a)(i).
  381. S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC).
  382. Drugs and Drug Trafficking Act no 140 of 1992, section 21(1)(a)(iii).
  383. S v Julies 1996 (4) SA 313 (CC).
  384. Drugs and Drug Trafficking Act no 140 of 1992, section 20.
  385. Mello and Another v The State 1998 (3) SA 712 (CC).
  386. Arms and Ammunition Act no 75 of 1969, section 40(1), as amended.
  387. S v Mbatha; S v Prinsloo 1996 (2) SA 464 (CC).
  388. Dyson, Interview, op cit.
  389. General Law Amendment Act no 62 of 1955, section 37(1), as amended.
  390. S v Manamela and Another 2000 (3) BCLR 49 (CC).
  391. J Steinberg, Onus of proof rests with the state, Business Day, 2 August 1999.
  392. Constitution of the Republic of South Africa Act no 108 of 1996, section 36(1) .
  393. Road Traffic Act no 29 of 1989, section 130, which is now contained in the National Road Traffic Act no 93 of 1996, section 73(1).
  394. Criminal Procedure Act no 51 of 1977, section 60(11)(a), as amended by Act no 85 of 1997.
  395. S v Dlamini; S v Dladla and others; S v Joubert; S v Schietekat 1999 (4) SA 623 (CC).
  396. A Fulton, Presumption of guilt replacing presumption of innocence, Fast Facts 12/99, December 1999, pp 3-5.
  397. SALC, Sexual offences: the substantive law, op cit.
  398. C Rickard, Court urged to stand firm against accused, Sunday Times, 15 November 1998.
  399. C Rickard, Constitution is no holy cow, says top judge, Sunday Times, 22 August 1999.
  400. F-N Moya, Legal brains differ over forced-disclosure plan, The Star, 1 July 1999; see also D Delport, Fight to give prosecution more clout, Sunday Tribune, 10 May 1998.
  401. Criminal Procedure Act no 51 of 1977, sections 58-60, as amended by Act no 85 of 1997.
  402. Ibid, section 50(6)(c), as amended.
  403. Correctional Services Act no 8 of 1959, section 29, as amended by the Correctional Services Amendment Act no 14 of 1996.
  404. Ibid, section 29(5A), as amended.
  405. See M Schönteich, The dangers of youth? Linking offenders, victims and age, Nedcor ISS Crime Index 3(5), September-October 1999, pp 22-28.
  406. Shabalala v Attorney-General of the Transvaal 1995(2) SACR 761 (CC).
  407. N Nxusani, Dockets vanish: More than 350 case files destroyed or lost in a year, Sowetan, 27 March 2000.
  408. K Ashken et al, Baseline data collection in DPP offices: Report of multi-disciplinary team July-August 1999, Pretoria, 23 August 1999.
  409. The majority (approximately 75%) of the prosecutors interviewed by the author for the purposes of this monograph expressed the view that the quality of the police’s detective work declined after 1994. According to most respondents, the decline in work quality is especially marked among general detectives, and less so among detectives working in specialised detective units such as the murder and robbery unit.
  410. See A Altbeker, Solving crime: The state of the SAPS detective service, ISS Monograph 31, Institute for Security Studies, Halfway House, November 1998, p 49, where the point is made that a confession-driven investigative approach did not dominate all SAP detective units. Many units — especially those dealing with less serious crimes — relied less on confessions and complied more closely with the law.
  411. L Stack, Pivot of the new order: The South African judiciary and the political consequences of judicial malfunctioning, Centre for Policy Studies, Johannesburg, August 1997, pp 11-12.
  412. Police may arrest plenty of people but they don’t get to court, prosecutors say, Sunday Independent, 25 May 1997.
  413. A Hadland, Many cops ‘illiterate’, Natal Mercury, 24 September 1999.
  414. S V Tshwete, minister for safety and security, written reply to parliamentary question, 10 March 2000, question 309, (National Assembly).
  415. C Rickard, Bad police work to blame for acquittals, Sunday Times, 7 February 1999.
  416. B van Hees, Criminal investigation blasted, The Citizen, 10 June 1999.
  417. See, M Schönteich, Justice versus retribution: Attitudes to punishment in the Eastern Cape, ISS monograph series 45, Institute for Security Studies, Pretoria, February 2000, pp 49-51 and 71.
  418. On 24 October 2000, there were 2 489 prosecutors, state advocates, deputy directors of public prosecutions and directors of public prosecutions working for the national prosecuting authority. Figures provided by the national prosecuting authority, fax to the author, 26 October 2000.
  419. The annual salary bill excludes medical aid and pension benefits, and other perquisites such as a housing allowance which are given to some prosecutors. These benefits and perquisites account for an additional 20% of the salary bill. However, the state is likely to recover this additional expenditure easily in the form of taxes paid by prosecutors.
  420. Figures provided by the national prosecuting authority, fax to the author, 26 October 2000.
  421. At the time of writing, the costs of the defence force procurement programme had risen to an estimated R43.8 billion. See W Hartley, Committee seeks arms deal probe, Business Day, 31 October 2000.
  422. See National expenditure survey 2000, department of finance, Government printer, Pretoria, February 2000, p 155.
  423. National Prosecuting Authority Act, sections 18(1) and 19.
  424. The Safety, Security and Justice Holding Company Ltd. A Cape property company, Property Asset Managers, would manage the properties to be privatised. W van der Vent, portfolio manager: Property Asset Managers, Telephonic interview, 19 March 1998.
  425. J Henning, Memorandum to the national director of public prosecutions: Promotions, merit awards and notch increments, nd, pp 18-19.
  426. J C Davies, Towards a theory of revolution, American sociological review 27(1), 1962.
  427. Ibid, p 5.
  428. Ibid, p 17.
  429. Ashken et al, op cit.
  430. L M Muntingh & R Shapiro (eds), NICRO diversion options, NICRO, Cape Town, 1997, p 3.
  431. L M Muntingh, Prosecutorial attitudes towards diversion, NICRO, Cape Town, 1998, p 24.
  432. Muntingh & Shapiro, op cit, p 2.
  433. NCPC, 350 tested strategies to prevent crime: A resource for municipal agencies and community groups, National Crime Prevention Council, Washington DC, 1997, p 303.
  434. For a critical view of diversion see A Sanders, The limits to diversion from prosecution, British Journal of Criminology 28(4), Autumn 1988, pp 513-532.
  435. See Justice vision 2000, Department of Justice, Pretoria, September 1997, p 28; National Crime Prevention Strategy, May 1996, national programme 1.6, pp 60-62.
  436. C Barberton, Reallocating expenditure to implement the draft Child Justice Bill, Article 40, Children’s Rights Project 2(2), University of the Western Cape, May 2000, pp 4-8.
  437. J Sloth-Nielsen & L M Muntingh, Juvenile justice review 1998, South African Journal of Criminal Justice 12, 1999, p 77.
  438. SALC, Juvenile justice, project 106, South African Law Commission, Pretoria, July 2000.
  439. A Skelton, chairperson, juvenile justice project committee, South African Law Commission, Interview, Pretoria, 15 November 2000.
  440. SALC, Juvenile justice, op cit, p xix.
  441. See Muntingh & Shapiro, op cit.
  442. Restorative justice is a theory of justice that relies on reconciliation rather than on punishment. The offender must accept responsibility for the fact that his behaviour has caused harm to the victim, and the victim is encouraged to accept restitution or compensation for the offender’s wrongdoing. The purpose of restorative justice is thus to identify responsibilities, to meet needs and to promote healing.
  443. WEBurger, Isn’t there a better way?, American Bar Association Journal 68, 1982, p 276.
  444. See MS Gillie, Private dispute resolution, in GWBowman et al, Privatizing the United States justice system: Police, adjudication, and corrections services from the private sector, McFarland & Company, Jefferson, 1992, p 231.
  445. L Zedner, Victims, in Maguire, Morgan & Reiner, op cit, p 602.
  446. PRRice, Mediation and arbitration as a civil alternative to the criminal justice system, American University Law Review 29, 1979, p18.
  447. D Scott-Macnab & MS Khan, Mediation and arbitration as forms of dispute settlement in the South African criminal law, South African Journal of Criminal Law and Criminology 9, 1985, p 108.
  448. JBStulberg, Popular shortcut around the court, American Bar Association Journal 61, 1975, p 1278.
  449. Scott-Macnab & Khan, op cit, p 127.
  450. Rice, op cit, p 22.
  451. Ibid.
  452. LMMuntingh, The development of a victim-offender mediation programme, Human Sciences Research Council, Pretoria, 1993, p 23.
  453. R Palmer, Justice in whose interest? A proposal for institutionalized mediation in the criminal justice system, South African Criminal Journal 10(1), 1997, p 45; see also TF Marshall, Alternatives to criminal courts: The Potential for non-judicial dispute settlement, Gower, Aldershot, 1985, p 27.
  454. Muntingh, 1993, op cit, p 24.
  455. For an analysis of community courts in South Africa and their place in the criminal justice system, see W Schärf, Specialist courts and community courts, Institute of Criminology, University of Cape Town, May 1997.
  456. SALC, Community dispute resolution structures, discussion paper 87, project 94, South African Law Commission, Pretoria, 1999, p iv.
  457. Ibid, p 55.
  458. Ibid, p v.
  459. P E Fixler & R W Poole, Can police services be privatised?, in Bowman et al, op cit, p 29.
  460. See M Schönteich, Outsourcing and the criminal justice system: A new weapon in the war against crime, paper read at the 2000 annual conference of the KwaZulu-Natal branch of the Security Association of South Africa, Durban, 7 June 2000.
  461. B L Benson, The enterprise of law: Justice without the state, Pacific Research Institute for Public Policy, San Francisco, 1990, p 245.
  462. CHLogan, Prison privatization: objections and refutations, University of Connecticut, nd, p 2, <www.ucc.uconn.edu/~wwwsoci/fraser.html>.
  463. Ibid, p 5.
  464. Section 38(1) of the National Prosecuting Authority Act no 32 of 1998 grants the national director of public prosecutions the authority to engage, on behalf of the state, persons having "suitable qualifications and experience to perform services in specific cases."
  465. Benson, 1990, op cit, p 237.
  466. L Johnston, The rebirth of private policing, Routledge, London, 1992, p 105.
  467. F Seedat and J Walker, Deloitte & Touche, Interview, Cape Town, 30 September 1997. See also S G Ghezzi, A private network of social control: Insurance investigation units, Social Problems 30(5), 1983, pp 521-531, for a US perspective.
  468. According to the erstwhile Office for Serious Economic Offences (OSEO), firms of accountants were employed on an ad hoc basis by OSEO to conduct forensic investigations on their behalf. In a number of cases, the bill for such services rendered was paid by the firms or companies which had been defrauded. There is no reason why this could not, mutatis mutandis, also be the case with private legal counsel. See P Atkinson, The Office for Serious Economic Offences (OSEO) of South Africa, ISSUP Bulletin 3/97, p 4.
  469. P Maduna, minister of justice and constitutional development, speaking at the launch of the specialised commercial crime courts, Pretoria, 15 November 1999.
  470. K Chikanga, Ex-manager’s R350-m charges, The Citizen, 6 June 2000.
  471. A Mackenzie, chief executive officer, Business Against Crime (national), Discussion, Midrand, 12 October 2000.
  472. A similar proposal by the Natal Law Society suggested that attorneys should be appointed as acting magistrates in civil cases to help reduce the backlog in magistrate’s courts. The justice department welcomed the proposal, but was concerned about its implementation (Appeal for attorneys’ help on civil cases, Business Day, 5 November 1998).
  473. At the time of writing, some directors of public prosecutions had instructed the prosecutors under their control not to conduct maintenance and inquest enquiries.
  474. The Administrative Adjudication of Road Traffic Offences Act no 46 of 1998, as amended is a step in the right direction. The act establishes an administrative procedure which relieves courts of the burden of trying most road traffic offences. A Road Traffic Infringement Agency, among others, will consider representations from the public and provide expert witnesses in trials involving traffic offences.
  475. X Xundu, Johannesburg council considers traffic court, Business Day, 25 October 2000; A Fine, Cape Town to set up a pilot municipal court, Business Day, 10 November 2000; E Doman, Traffic courts will relieve pressure, East Record, 3 November 2000.
  476. See M Schönteich, Unshackling the crime fighters. Increasing private sector involvement in South Africa’s criminal justice system, Spotlight, 1999, pp 53-61 and 75-76.
  477. Criminal Procedure Act no 51 of 1977, sections 7-17, as amended.
  478. Ibid, section 7.
  479. Ibid, section 7(1)(a).
  480. Ibid, section 9(1).
  481. Ibid, section 9(3).
  482. Ibid, section 12.
  483. Ibid, section 16(2).
  484. Ibid, section 16(1).
  485. See T Valentine, Private prosecution, in Bowman et al, op cit, pp 226-228.
  486. Ibid, p 227.
  487. Benson, 1998, op cit, p 287.
  488. See H Varney, Towards a civil response to crime: Elective private prosecutions, Crime and Conflict 17, Spring 1999, pp 34-38.
  489. D Klerman, Settlement and the decline of private prosecution in thirteenth-century England, Independent Institute working paper 19, January 2000, p 2, <www.independent.org/tii/lighthouse/LHLink2-29-6.html>.
  490. Benson, 1998, op cit, p 287.
  491. F W Kahn, 1997 annual report, op cit, p 19.
  492. M Wakefield, Novices, transcript of a speech contained in Report of the proceedings: Empowering prosecutors for effective and responsive prosecutions in the new millennium, op cit, p 104.
  493. The Concise Columbia Electronic Encyclopedia, Columbia University Press, 1994, <www.encyclopedia.com/articles/10291.html>.
  494. D D Guidorizzi, Should we really ‘ban’ plea bargaining?: The core concerns of plea bargaining critics, <www.law.emory.edu/ELJ/volumes/spg98/guido.html>.
  495. Santobello v New York 404 US 257 (1971).
  496. E Snyman & S du Toit, Defining and evaluating plea bargaining, South African Journal of Criminal Justice 13(2), 2000, pp 196-197.
  497. Law Reform Commission of Canada, Plea discussions and agreements, working paper 60, 1989.
  498. SALC, Simplification of criminal procedure (sentence agreements), discussion paper 94, project 73, South African Law Commission, Pretoria, 2000, p 16.
  499. N M Isakov & D van Zyl Smit, The decision on how to plead: A study of plea negotiation in Supreme Court criminal matters, South African Journal of Criminal Law and Criminology, 1986, p 10.
  500. North Western Dense Concrete CC v Director of Public Prosecutions (Western Cape) 1999 (2) SACR 669 (C) at 676e.
  501. Criminal Procedure Act no 51 of 1977, section 6 as amended by the Correctional Services and Supervision Amendment Act no 122 of 1991.
  502. Z Venter, Ngcuka argues in favour of plea bargaining, Pretoria News, 20 October 2000. See also R Brand, Plea bargaining mooted for SA: Would help break logjam of 130 000 criminal cases on court rolls, Pretoria News, 14 September 2000.
  503. W Viljoen, deputy director, Investigating Directorate: Organised Crime and Public Safety, Interview, Cape Town, 28 March 2000.
  504. Criminal Procedure Act no 51 of 1977, section 204(2). 
  505. C T Clarke, Message in a bottle for unknown defenders: Strategic plea negotiations persist in South African criminal courts, Comparative International Law Journal of Southern Africa 32, 1999, p 141.
  506. For examples of discriminatory plea bargaining practices in the US based on race and ethnicity see Criminal justice report: Justice on trial, Race and prosecutorial discretion, pp 4-5, <www.civilrights.org/policy_and_legislation/pl_issues/criminal_justice/cj_report/ prosecutorial.html>.
  507. See, for example, C Hills, Plea bargains a danger to justice — Popcru, The Citizen, 3 February 2000.
  508. SALC, Simplification of criminal procedure (sentence agreements), op cit, p 24.
  509. Ibid, pp 32-33.
  510. Kahn, 1997 annual report, p 15.
  511. C Rickard, Bureaucrats to swop desks for courtrooms, Sunday Times, 12 March 2000.
  512. Calculated at the department of correctional services’ estimate that a prisoner costs the department approximately R85 per day.
  513. M Murray, Beyond the myths and magic of mentoring: How to facilitate an effective mentoring program, Jossey-Bass, San Francisco, 1991, p xiv.
  514. K E Kram, Mentoring at work: Developmental relationships in organizational life, Scott, Foresman and Company, Glenview, 1985, pp. 159-160. See also A P Carnevale & S K Kogod, Tools and activities for a diverse work force, McGraw-Hill, New York, 1995.
  515. Report on the NCPS pilot joint training program, Justice College, Pretoria, 1999, p 1.
  516. Scheepers, Interview, op cit.
  517. Van Riet, Interview, op cit.
  518. A survey conducted in mid-1999 by the Institute for Security Studies of a representative sample of Eastern Cape residents revealed that 27% of respondents thought that prosecutors were doing a good job, 48% said they were doing a ‘fair job’, and 23% felt they were doing a poor job. See Schönteich, February 2000, op cit, pp 39-41.
  519. The Nedcor project on crime, violence and investment: Final report, The Nedcor Project, Johannesburg, 1996.