study unit 5: public prosecutions

Question 1

section 179 of the constitution

Answer 1

provides for the establishment of a single national prosecuting authority

Question 2

types of prosecuting authority

Answer 2

-national director of public prosecutions
-deputy national director of public prosecutions
-directors of public prosecutions [at different seats of the high court]
- deputy directors of public prosecutions
-prosecutors

Question 3

duties of prosecutors in a lower court

Answer 3

exercises power and carries out duties and performs the functions assigned to him under the control of the DPP whose area of jurisdiction such court is situated.

Question 4

The prosecution as dominus litis [master of the cause]

Answer 4

case: s v sehoole 2015
-the state has a discretion regarding prosecution and pre-trial procedures
-the state may decide whther or not to institute prosecution
-the state may decide on what charges to prosecute
-state may decide in which court to prosecute
- on which charges to withdraw and can elect a charge on a person with a less serious offence.

Question 5

Discretion to prosecute

Answer 5

prosecution policy provides the following:
1. the prosecutor must consider whether to request the police to investigate the case further
=institute a prosecution
=enter a plea or sentence agreement
=decline to prosecute and opt for a pre-trial for diversion
=decline to prosecute without taking any other action
2. decision on whether to or not prosecute must be taken with care cause it may have profound implications on victims and their families. A wrong decision may undermine the community’s confidence in the justice system as a whole
3. the prosecutor may consider the views of the victim and complainant in exercising discretion but the final decision remains in the prosecutor and they are not bound by the wishes of the victim
4. to decide whether to institute criminal proceedings on the accused, the prosecutor must assess whether there is sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution, there must be a reasonable prospect of a conviction. Prosecutor must issues: the strength of the case for the state, availability of witnesses and reliability & admissibility of evidence
5. once prosecutor is satisfied that there is sufficient evidence, prosecution may follow unless public interests demands otherwise.

Question 6

withdrawal of a case

Answer 6

1.a case may be withdrawn by the prosecutor at anytime before the accused pleads to the charge
2. no DPP authorisation is needed. In practice the prosecutor will obtain the DPPs in cases where the DPP has instructed the prosecution to be instituted
3. the prosecution may be reinstated anytime, subject to the powers of the court in respect of undue delays in prosecution, the accused will not be able to plea that he was acquitted before.

Question 7

stopping of the prosecution

Answer 7

1. proceedings may be stopped at anytime after the accused pleaded to the charge, but it must be before conviction
2. proceedings can only be stopped with the authorisation of the relevant DPP
3. if prosecution is stopped the court must discharge the accused and the accused may not be prosecuted for an offence based on the same facts, accused will be able to plea successfully to be prosecuted anew.

Question 8

reconsiderations/review of decision to prosecute or not to prosecute

Answer 8

-if prosecutor is dissatisfied with the reason to prosecute or not, they may make representations to relevant senior prosecutor/ chief prosecutor or DPP. NDPP may also review decision to prosecute or not too.
-high court may upon application review and set aside the decision of prosecuting authority
-both decisions to prosecute or not are subject to review
-as the prosecutor is the dominus litis, courts will not lightly interfere with these decisions
-reviews are limited to ground of legality

Question 9

prosecutorial responsibilities

Answer 9

• to play close attention to the contents of the police docket and act with objectivity and protect public interest
  -ensure whether the evidence presented is sufficient and admissible
  -to present facts in an objective and fair manner as to place the court in a position that it arrive to the truth
  -evaluate the conduct of the police and the strengths of the states case to present to the court
  -