Prosecutorial Discretion and Judicial Review: An Analysis of Recent Canadian and South African Decisions

The question whether the functions performed by the prosecutor in the criminal justice system are subject to judicial scrutiny has been a matter for concern in common-law jurisdictions for quite some time. The courts in the Commonwealth generally agree that prosecutors must function independently; act fairly and responsibly in the interests of the public; and must be free from political interference. Their role in the administration of justice is to uphold the rule of law. Therefore, the exercise of prosecutorial discretion should ordinarily not be interfered with by the courts except in rare cases. However, the extent to which the courts, in respective Commonwealth jurisdictions, review prosecutorial discretions differs. A comparative study of the Canadian experience and the South African approach, where the judicial approaches to the review of prosecutorial discretion significantly differ, is a clear illustration. In Canada, the courts hardly interfere with, or review the manner in which the prosecutor performs his or her duties, except that prosecutorial discretion is not immune from all judicial oversight, since it is reviewable for abuse of process (see R v Anderson [2014] 2 SCR 167). In South Africa on the other hand, the exercise of the powers of the prosecutor and their ramifications are, like every exercise of public power, subject to the constitutional principles of legality and rationality. The recent judgments of the Full Bench of the Gauteng Division, Pretoria in Democratic Alliance v Acting National Director of Public Prosecutions 2016 (2) SACR 1 (GP) as affirmed by the Supreme Court of Appeal in Zuma v Democratic Alliance 2018 (1) SA 200 (SCA)—the so-called ‘spy-tape’ saga—are the latest illustrations of this approach.

Reflections on Prosecutorial Independence and Impartiality in South Africa: The Recent Jurisprudence of the Courts

Prosecutorial independence and prosecutorial impartiality are important for the effective administration of criminal justice in South Africa. These two concepts are interconnected and yet they are distinct, and distinguishable from judicial independence and judicial impartiality. In the past decade or so, controversy has surrounded and allegations have been made of political interference with prosecutorial independence and impartiality in South Africa. This article reflects on recent developments in the exercise of prosecutorial independence and impartiality in South Africa. The interest was sparked by recent constitutional jurisprudence in developing the law on prosecutorial independence and impartiality. In its analysis of the courts’ jurisprudence on prosecutorial independence, the article further demonstrates that this jurisprudence has had an influence in determining the independence of other institutions responsible for the administration of criminal justice.

‘Bring Back our Innocence’. Protecting Children from Commercial Sexual Exploitation: A Case Study of Three African Countries

The focus of this article is on the commercial sexual exploitation of children with a particular focus on the use of children for the purposes of prostitution and pornography in South Africa, Zimbabwe and Uganda. The article examines the international prohibition of child prostitution and pornography and analyses the extent to which these three countries have implemented the relevant international instruments in their national legal order. The research reveals that South Africa has enacted estimable legislation that prohibits the use of children for the purposes of prostitution and pornography, whereas Zimbabwe and Uganda’s legislation warrants some refinement. In addition, research identifies some of the challenges these countries are facing in implementing the respective legislative frameworks and, to that effect, the article author seeks to offer recommendations for overcoming such difficulties. The extent to which the three countries have incorporated international laws prohibiting child prostitution into their national legislation is analysed.

Extending the Private Prosecution Provisions of the Criminal Procedure Act 51 of 1977 to Cover Private Prosecution in the Public Interest

Criminal prosecution is generally the preserve of the state. However, there are legislated exceptions that allow for private prosecution. For example, section 7 of the Criminal Procedure Act 51 of 1977 entitles individuals who satisfy certain criteria to prosecute in their own names. Section 8 of the Act, on the other hand, provides for statutory private prosecution. Statutory private prosecutions are limited to certain bodies and certain types of offences. In this article, it is submitted that private prosecution must be extended beyond the realm of sections 7 and 8 of the Act or the currently statutory sanctioned private prosecution. It is contended that section 7 of the Act must be amended to include the prosecution of corruption and related offences, on the one hand, and money laundering and related offences, on the other, in the public interest. It is submitted that there are safeguards to avoid private prosecution being abused. Furthermore, the allowance of private prosecution in the private interest would not impinge on the status of the National Prosecuting Authority (NPA) as the constitutional body mandated to institute prosecutions on behalf of the state. This is because a prospective private prosecutor may institute proceedings only in the event that the NPA declines to prosecute or on the basis of unreasonable delay on the part of the NPA to institute prosecutions.

Removal of the National Director of Public Prosecution: A Critique of Emerging Constitutional Jurisprudence

In this article, I critically examine the constitutional provisions governing the removal of the National Director of Public Prosecutions. This examination is undertaken in the context of recent decisions by the High Court in Corruption Watch (RF) NPC and Another v President of the Republic of South Africa and Others; Council for the Advancement of the South African Constitution v President of the Republic of South Africa and Others [2018] 1 All SA 471 (GP); 2018 (1) SACR 317 (GP) and the Constitutional Court in Corruption Watch NPC and Others v President of the Republic of South Africa and Others [2018] ZACC 23, which found certain provisions of the National Prosecuting Authority Act 32 of 1998, which governs the removal of the National Director, unconstitutional. The article is critical of these two court decisions for their failure to properly justify the order to invalidate the provisions of the National Prosecuting Authority Act and to provide a proper account of the different separation of powers imperatives involved in the cases. The article is also critical of the Constitutional Court’s approach to the abstract review of the sections in the National Prosecuting Authority Act, and of its suspension of the order of invalidity in a manner which took no due regard to established jurisprudence. Lastly, the article is critical of the Constitutional Court’s omission to address the High Court order that the Deputy President should appoint the National Director, which runs counter to the text of the Constitution.

Prosecutorial Independence in Lesotho: A Critique of the Model

The Constitution of Lesotho is substantially cast on the Westminster prototype. As such, its institutions, by and large, reflect the structure of similar institutions at Westminster. The institution of the Director of Public Prosecutions (DPP) is no different: it has been designed to mirror its namesake under the British constitutional design. The underlying feature of classic British-based constitutions is the weak separation of powers and the predominance and condescending nature of the executive branch of government, as incarnated by the office of the Prime Minister. As such, most institutions within the design are beholden to the executive in general and to the Prime Minister in particular. The institution of the DPP is integral in the administration of criminal justice. Hence, its independence and its accountability in the discharge of this important constitutional mandate are of paramount importance. This notwithstanding, the Constitution of Lesotho is generally weak on safeguarding the independence of the office of the DPP and ensuring its corresponding duty of accountability. The purpose of this article is to critique the constitutional design in relation to the office of the DPP and to expose the deficiency of the constitutional clause establishing the Lesotho DPP office. The article contends that while the Constitution, under section 141, provides for some small measure of independence of this office, the broader schematisation of the Constitution is feeble on the independence and accountability of the office. The article analyses the constitutional design of the Lesotho DPP office in comparison with international developments.

The NPA’s Limited Independence and How to Mitigate Political Interference in High-Profile Cases

In South Africa, the efficacy of the criminal justice system rests on the ability of the National Prosecuting Authority (NPA) to conduct prosecutions fairly and effectively. This is because it enjoys a monopoly over the prosecution of crime, as it decides which cases will proceed to court. While there is some room for private prosecutions, these are few and far between and do not make a dent in the power of the state to prosecute crime. Political pressure can interfere with effective prosecution. Particularly where an alleged perpetrator is a political figure, there is an incentive to try to influence the head of the prosecuting authority. My suggestion is to establish a special prosecuting office, separate from the normal prosecuting authority, to deal with cases involving members of the executive and the legislature. The purpose is to create a greater measure of independence, although comparative examples demonstrate that such an office too can suffer political interference. Removing political cases from the NPA would also enable the head of the NPA to concentrate on increasing the effectiveness of the prosecuting authority and public confidence in its abilities, without derailing its focus by having to fight for institutional independence.

When the King can do a lot of Wrong: Some Reflections on S v Dalindyebo 2016 (1) SACR 329 (SCA)

In this note, the author discusses the trial of King Buyelekhaya Dalindyebo of the AbaThembu tribe, his conviction and sentence—and the aftermath thereof. He examines the legal and constitutional parameters of the immunity of traditional leaders from criminal and civil liability in the exercise of their official functions. The author also attempts to answer some of the questions that are raised by the judgment, albeit tangentially, about the relevance and applicability of the maxim rex non potest peccare in South Africa. The note also examines the maxim’s British historical roots and its points of contact with the pre-colonial, South African version. The author’s conclusion is that despite South Africa having been a British colony at some point, the maxim has never been part of the country’s legal history and constitutional framework. Even if it were to be assumed that the maxim was an integral part of pre-colonial South African constitutional jurisprudence, such as it was, he contends that it would now be palpably inimical to the values that are embodied in the Constitution and the Bill of Rights.

Legal Perspectives on Ecosystem Services Protection for Water Security in South African Cities

In the last couple of years, South African cities have exhibited extreme water stresses, despite there being a strong regulatory system for the management of said resources. The pressure to meet human demand for freshwater resources, accompanied by a wide array of other challenges, has largely led to a deterioration of ecosystems. Given the ongoing and widespread loss of ecological services, water protection requires a substantial effort to reverse the current decline in both the state of the ecosystems and the services they provide to society, and the country’s shared sense of governance of these significant resources. Achieving water security and the sustainable management of water resources will, therefore, require overcoming strategic challenges related to protected areas, water infrastructure, economies, human settlements and water quality, sanitation and health, as well as the protection of ecological infrastructure. This article argues that ecosystem services protection can add value to the protection and management of water resources in attaining water security in South Africa, as ecosystem services and water security are inextricably linked. The article further determines how the legal framework in South Africa makes provision for water security and ecosystem services protection, to assess what role local government can and should take on. The authors conclude the discussion with some observations on ecosystem services protection for water security in policies and by-laws of the eThekwini Metropolitan Municipality.