Reasons for prosecutorial decisions

• Published in: Potchefstroom electronic law journal Vol. 18; no. 5; pp. 1506 - 1526
• Main Authors: Du Toit, P.G., Ferreira, G.M.
• Format: Journal Article
• Language: English
• Published: North-West University 2015; North-West University (Potchefstroom Campus)
• Subjects: Attorneys; judicial review of prosecutorial decisions; Judicial reviews; Law; legality principle; National Prosecuting Authority; National Prosecuting Authority-South Africa; Prosecutions; prosecutorial decisions; Public prosecutors; reasons for prosecutorial decisions; South Africa; National Prosecuting Authority; prosecutorial decisions; judicial review of prosecutorial decisions; reasons for prosecutorial decisions; legality principle
• ISSN: 1727-3781; 1727-3781
• DOI: 10.4314/pelj.v18i5.08

The Constitution empowers the National Prosecuting Authority (NPA) to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings. The NPA is an institution integral to the rule of law and it is important that it acts in a manner consistent with the constitutional prescripts and within its powers. The decision to prosecute or decline prosecution is a serious step that may affect accused persons and their families, victims, witnesses and the public at large and must be undertaken with the utmost care. A recent judgment of the Supreme Court of Appeal, for instance, held that the failure of the prosecution to exercise sensible discretion and decline to prosecute had led a matter without any merit to be pursued to that court. The expenditure of time and effort, and the costs to the public purse and the appellants had been considerable. These included emotional costs and the convictions that hung over their heads. This contribution aims to address the nature of the duty resting on South African prosecutors to provide reasons for the decision to prosecute or decisions to decline or discontinue a prosecution.