Failing to prosecute? Assessing the State of the National Prosecuting Authority of South Africa

Abstract

The National Prosecuting Authority (NPA) is pivotal not only in the criminal justice system, but also in the proper functioning of South Africa’s democracy. This monograph focuses on the independence, accountability and performance of the NPA in relation to its core function of prosecution. The monograph finds that the prosecutorial decision to decline to prosecute is both specifically and systematically exercised to such an extent that proportionally fewer cases are placed on the court roll each year and fewer still are brought to trial. The best indication of this is that the number of verdicts and the number of persons sentenced to prison show a general decline. It concludes that this tendency to decline to prosecute is currently the central malaise affecting the NPA. In South African law, where a prima facie case exists, a duty to prosecute arises unless a compelling reason exists to decline to prosecute. Under a constitutional order such as the one that pertains in South Africa, the exercise of all public power is constrained by the principle of legality and the provisions of the Constitution. Yet the NPA has maintained that it has an unfettered discretion not to prosecute, which discretion is not generally subject to judicial review. The monograph finds no evidence that the tendency to decline to prosecute is a function of lack of resources. Prosecutor and staff numbers have steadily increased since the establishment of the NPA, but efficiency per prosecutor in terms of cases prosecuted has declined. Nor does analysis of the evidence support the idea that the failure to prosecute is a function of pressure beyond the optimal level in terms of cases referred by the South African Police Service (SAPS). On the contrary, the evidence suggests that the NPA is operating at below optimal load. Various legislative and other impediments affecting its performance are identified. It concludes that the primary factor affecting the credibility and performance of the NPA is the inappropriate exercise of the discretion not to prosecute, most powerfully evident in the hands of the national director, who has a constitutionally sanctioned power of veto over the decisions of prosecutors under him. This veto has been exercised (or not exercised) with consequences that continue to cast doubt on the independence and impartiality of the NPA. This in turn affects internal morale and external public confidence. The monograph recommends an overhaul of prosecutorial policy in order appropriately to delineate the circumstances under which the discretion to decline to prosecute should be exercised. Measures to assist the speedy resolution of cases should be mandated by Parliament and innovative means of increasing the number of appropriate resolutions of cases should be introduced. Performance reporting should determine optimal prosecutor workloads and there should be a focus on professional development to achieve the optimal throughput of cases.