The National Prosecuting Authority

Who Gets Charged and Who Gets a Pass?

Who decides who faces criminal charges for alleged crimes and who doesn’t? Well, that responsibility lies with the National Prosecuting Authority (NPA). As the name suggests, it is them that have overall authority in such decisions. The NPA functions as a complex hierarchical organisation with numerous moving parts, encompassing personnel from the Minister of Justice down to prosecutors who conduct day-to-day court proceedings.

Historically, South Africa had attorneys-general (heads of prosecutions) at various divisions of the High Court, each operating independently. There was no unified prosecuting authority. However, section 2 of the National Prosecuting Authority Act (NPA Act),¹ read with section 179 of the Constitution of the Republic of South Africa, 1996 (“the Constitution”), established a single prosecuting authority.²

Section 20(1) of the NPA Act vests the power to prosecute in the NPA. In Ndlovu,³ the Constitutional Court has affirmed that this prosecutorial power is exercised on behalf of the people of South Africa. This power includes the authority to:
(a) institute and conduct criminal proceedings on behalf of the state;
(b) carry out functions necessary to those proceedings; and
(c) discontinue proceedings when appropriate.

The prosecution is often described as dominus litis or “master of the case”.⁴ This concept merely signifies that the prosecution has the authority to take legally permissible actions to initiate and manage criminal proceedings, such as determining charges and the venue for trial.⁵ Despite this authority, courts retain residual control to ensure fairness to the accused. Several cases illustrate this balance:

1. In Khoza,⁶ the prosecution was required to consolidate charges related to the same facts into a single trial. Piecemeal prosecutions were deemed unfair, and the case was struck from the roll.
2. In Swanepoel,⁷ the court ordered a variation in the sequence of defence testimony, emphasising that fairness in an adversarial trial demands equal opportunities for both parties.⁸
3. In Magoda,⁹ the court overruled the prosecution’s refusal to close its case, prioritising the accused’s right to a speedy trial.

South Africa operates under a discretionary rather than a compulsory prosecution system. A prosecutor has a duty to prosecute when there is a prima facie case, unless compelling reasons justify a refusal. A prima facie case exists when the available evidence, if proven admissible, would likely result in a conviction.¹⁰ However, prosecutions may be declined for reasons such as the triviality of the offence,¹¹ the advanced age of the accused,¹² or tragic personal circumstances.¹³ Discretionary decisions must align with public interest and the fair administration of justice.¹⁴

The Prosecution Policy, issued by the National Director of Public Prosecutions (NDPP) under Section 21(1)(a) of the NPA Act, emphasises that prosecutors should pursue cases with reasonable prospects of conviction unless public interest dictates otherwise. Factors influencing this discretion include:

• The nature, seriousness, and economic impact of the offence;
• The victim’s interests and the broader community’s needs;
• The offender’s personal circumstances and prior criminal history; and
• The potential deterrent effect and overall confidence in the justice system.

Two fundamental principles govern prosecutorial discretion. First, the authorities must not allow ongoing statutory violations only to prosecute unexpectedly, as in Makwasie,¹⁵ which undermines legality and fairness.¹⁶ Second, discretion must not result in discriminatory prosecution. Selective enforcement violates the equality principle under section 9(1) of the Constitution. All decisions must adhere to prosecutorial policy, serving justice impartially and transparently.¹⁷ In National Society for the Prevention of Cruelty to Animals,¹⁸ the court emphasised that prosecutorial decisions must reflect impartiality and public interest while remaining subject to review by the NDPP or the courts.

Courts rarely express disapproval regarding the institution of a prosecution,¹⁹ as they generally cannot interfere with a bona fide decision of the prosecuting authority. Such interference is considered irregular.²⁰ If convicted, a court may impose a lenient sentence to reflect the view that the prosecution was unwarranted. If the case is deemed trivial, an acquittal may follow,²¹ but this should not be seen as interference, rather as an indication that the prosecution should not have occurred.²²

Courts typically avoid commenting on prosecutorial discretion,²³ though in rare instances, they have noted that others, besides the accused, should have been prosecuted based on trial evidence.²⁴ In Black Sash Trust v Minister of Social Development,²⁵ the Constitutional Court directed the NDPP to consider whether Minister Dlamini lied under oath, leaving the decision to prosecute to the NDPP’s discretion. This order did not constitute judicial interference. A court can also not compel the prosecuting authority to make a decision within a specified timeframe.²⁶ However, judicial intervention is possible if the prosecutorial discretion is improperly exercised.²⁷ As noted in National Director of Public Prosecutions v Zuma,²⁸ a prosecution is not wrongful merely for an improper purpose but only when reasonable grounds are absent.

Judicial review can also occur on ordinary grounds, such as mala fides or where the prosecuting authority fails to apply its mind or acts with an ulterior motive.²⁹ Intervention is warranted if the prosecuting authority exceeds its powers, including when a DPP delegates duties that should be performed personally.³⁰ Decisions to decline prosecution may be reviewed on constitutional grounds, particularly where they violate the principle of equality before the law. In Democratic Alliance v National Director of Public Prosecutions,³¹ the court confirmed such decisions are reviewable. Similarly, the decision to discontinue prosecution may be reviewed for legality and rationality.³²

In conclusion, the NPA holds the crucial responsibility of deciding who faces criminal charges in South Africa, exercising this power in line with the Constitution and the NPA Act. The prosecution’s discretion, though broad, must be exercised in the public interest, with fairness, and without discrimination. While courts generally refrain from interfering in prosecutorial decisions, they may intervene if the NPA’s actions are found to be unlawful or irrational. Ultimately, the NPA’s role in ensuring justice must be balanced with the protection of individual rights and the upholding of legal principles, highlighting the importance of transparency, accountability, and fairness in the prosecution process.

Written by Theo Tembo

1. 32 of 1998. ↩︎
2. Moussa 2015 (2) SACR 537 (SCA) at par [18]. ↩︎
3. Ndlovu 2017 (2) SACR 305 (CC) at par [57]. ↩︎
4. Zuma 2006 (2) SACR 257 at par [265a–b]). ↩︎
5. Sehoole 2015 (2) SACR 196 (SCA) at par [10]. ↩︎
6. 1989 (3) SA 60 (T). ↩︎
7. 1980 (2) SA 81 (NC) at par [84D]. ↩︎
8. Mpetha (1) 1983 (1) SA 492 (C) at par [494A–C]. ↩︎
9. 1984 (4) SA 462 (C). ↩︎
10. Beckenstrater v Rottcher and Theunissen 1955 (1) SA 129 (A) at par [137]. ↩︎
11. S v Snyman 1980 SACC 313 at [314]. ↩︎
12. Stoker & Van der Merwe 1981 SACC 73. ↩︎
13. Richings 1977 SACC 143. ↩︎
14. National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development 2016 SACR 308 (SCA) at par [25]. ↩︎
15. 1970 (2) SA 128 (T). ↩︎
16. Van Rooyen 1975 Acta Juridica 70 at par [83]. ↩︎
17. Mostert 2010 (1) SACR 223 (SCA) at [18]–[19]. ↩︎
18. 2016 (1) SACR 308 (SCA) at par [24]. ↩︎
19. Bester 1971 (4) SA 28 (T). ↩︎
20. Dubayi 1976 (3) SA 110 (Tk). ↩︎
21. Kgogong 1980 (3) SA 600 (A). ↩︎
22. Snyman 1980 SACC 313 314. ↩︎
23. Richings 1977 SACC 143 144. ↩︎
24. Exemplified in Xaba 2018 (2) SASV 387 (KZP) at [17]. ↩︎
25. 2018 (12) BCLR 1472 (CC). ↩︎
26. Wronsky v Prokureur-Generaal 1971 (3) SA 292 (SWA). ↩︎
27. Highstead Entertainment (Pty) Ltd t/a ‘The Club’ v Minister of Law and Order 1994 (1) SA 387 (C). ↩︎
28. 2009 (2) SA 277 (SCA) at [37]. ↩︎
29. Mitchell v Attorney-General, Natal 1992 (2) SACR 68 (N). ↩︎
30. Julius 1983 (2) SA 442 (C). ↩︎
31. 2012 (2) SA 486 (SCA) at [27]–[30]. ↩︎
32. Democratic Alliance v Acting National Director of Public Prosecutions 2016 (2) SACR 1 (GP) at [90]. ↩︎