Over the last 150 days we have learned much about the power of the habitual in post-millennial, post-apartheid South Africa. We have heard it in the grumbling, cavilling, quarrelling and grousing about the logic (or lack of) of government decrees. We have also seen it in the defiance of logic among the many bourgeois folks who mistook their entitlement for rights, whether to go running, do yoga on the beach, surf, get takeaway coffees, or to purchase items subjected to restricted trade… We saw it in the contradictory messages relayed by official government channels, in the conflict between some experts advising government, between government officials and such experts, and in the ways in which opposition parties contradicted themselves as they opposed government proclamations.
Judging from what Willem Heath said tonight in a debate on Interface on the SABC (nice new chairs they have in the studio!), we might not get the reasons we deserve if the NPA does go ahead and announce that all charges against Mr jacob Zuma would be dropped. But the NPA has a legal duty to provide reasons for its decision. What we must all remember is that the decision must be taken in terms of the law and not because of political factors. If it is not taken in terms of the law the decision will be ultra vires and could be reviewed.
Section 179(5)(a) of the Constitution states that:
National Director of Public Prosecutions- must determine, with the concurrence of the Cabinet member responsible for the administration of justice, and after consulting the Directors of Public Prosecutions, prosecution policy, which must be observed in the prosecution process.
This means, as the prosecution policy points out, that the Prosecution Policy is binding on the NPA. The NPA therefore has a constitutional and legal duty to adhere to the policy. If it fails to do so the decision is illegal. Once we know the outcome of the NPA decision judge for yourself if you think the decision was legal or whether the NPA is flouting the Rule of Law. I provide the relevant section (section 4(c) of the policy) below:
Once a prosecutor is satisfied that there is sufficient evidence to provide a reasonable prospect of a conviction, a prosecution should normally follow, unless public interest demands otherwise.
There is no rule in law, which states that all the provable cases brought to the attention of the Prosecuting Authority must be prosecuted. On the contrary, any such rule would be too harsh and impose an impossible burden on the prosecutor and on a society interested in the
fair administration of justice.
When considering whether or not it will be in the public interest to prosecute, prosecutors should consider all relevant factors, including:
The nature and seriousness of the offence:
• The seriousness of the offence, taking into account the effect of the crime on the victim, the manner in which it was committed, the motivation for the act and the relationship between the accused and the victim.
• The nature of the offence, its prevalence and recurrence, and its effect on public order and morale.
• The economic impact of the offence on the community, its threat to people or damage to public property, and its effect on the peace of mind and sense of security of the public.
• The likely outcome in the event of a conviction, having regard to sentencing options available to the court.
The interests of the victim and the broader community:
• The attitude of the victim of the offence towards a prosecution and the potential effects of discontinuing it. Care should be taken when considering this factor, since public interest may demand that certain crimes should be prosecuted – regardless of a complainant’s wish not to proceed.
• The need for individual and general deterrence, and the necessity of maintaining public confidence in the criminal justice system.
• Prosecution priorities as determined from time to time, the likely length and expense of a trial and whether or not a prosecution would be deemed counterproductive.
The circumstances of the offender:
• The previous convictions of the accused, his or her criminal history, background, culpability and personal circumstances, as well as other mitigating or aggravating factors.
• Whether the accused has admitted guilt, shown repentance, made restitution or expressed a willingness to co-operate with the authorities in the investigation or prosecution of others. (In this regard the degree of culpability of theaccused and the extent to which reliable evidence from the said accused is considered necessary to secure a conviction against others, will be crucial).
• Whether the objectives of criminal justice would be better served by implementing non-criminal alternatives to prosecution, particularly in the case of juvenile offenders and less serious matters.
• Whether there has been an unreasonably long delay between the date when the crime was committed, the date on which the prosecution was instituted and the trial date, taking into account the complexity of the offence and the role of the accused in the delay.
The relevance of these factors and the weight to be attached to them will depend upon the particular circumstances of each case. It is important that the prosecution process is seen to be transparent and that justice is seen to be done.
Note the last sentence. If the process is not transparent the NPA would not be fulfilling its duties under the policy. Full reasons will therefore have to be given for the decision. If the NPA declines to provide full reasons most reasonable people will become suspicious about the “real” reasons for the decision and justice will not be seen to be done.
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