Criminal procedure

Abstract

A number of recently reported cases deal with issues of prosecutorial discretion, the duty resting upon prosecutors to protect the public interest and the proper formulation of charges by prosecutors. Unfortunately in all the cases discussed in this regard the courts made negative findings about the conduct of the National Prosecuting Authority and its representatives. Section 179(2) of the Constitution of the Republic of South Africa, 1996 empowers the National Prosecuting Authority to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings. The decision to prosecute or to decline to prosecute is a step that may affect accused persons and their families, victims, witnesses, law enforcement agencies and the public. The prosecutor must act fairly towards the accused and dedicate himself or herself to the achievement of justice (S v Rozani; Rozani v Director of Public Prosecutions Western Cape 2009 (1) SACR 540 (C) at 549f-550d; on the ethical duties of prosecutors see Du Toit et al Commentary on the Criminal Procedure Act (-2014) 1-45-1-48).