National Prosecuting Authority

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The Constitution of the Republic of South Africa (Act No. 108 of 1996), created a single National Prosecution Authority (NPA), which is governed by the National Prosecuting Authority Act (Act No. 32 of 1998). The Constitution, read with this Act, provides the NPA with the power to institute criminal proceedings on behalf of the State, to carry out any necessary functions incidental to institution of criminal proceedings and to discontinue criminal proceedings. It is accountable to the Minister of Justice and Correctional Services.[1]

Structure[edit]

On a national level, the NPA is headed by the National Director of Public Prosecutions (NDPP). The NDPP is appointed by the President of South Africa for a term of 10 years.[1][2]

The NDPP is supported by a chief executive officer, a position which was filled by Marion Sparg from 2000 to 2007, and by four Deputy National Directors. Every seat of the High Court of South Africa is served by a Director of Public Prosecutions (DPP), who acts as the prosecution authority for such Court's jurisdictional area. Further support comes from Special Directors and Investigating Directors.

Business units[edit]

The NPA comprises various core business units:

  • The National Prosecution Service (NPS) is composed of the various DPP offices (and their subordinates) and are responsible for the day to day criminal prosecutions. State Advocates (attached to the office of the DPP) prosecute matters in the Superior Courts, whilst Public Prosecutors (attached to various Magistrate's Courts), prosecute matters in the Lower Courts.
  • The Directorate of Special Operations (DSO or Scorpions) was launched on 1 September 1999, in Cape Town, as a step towards putting in place the necessary machinery to eradicate organised crime in South Africa. It was the birth of what is envisaged to become a world-class law enforcement agency. The DSO was later disbanded in July 2009 and the investigative capacity transferred to the South African Police Service
  • The Asset Forfeiture Unit (AFU) was established in May 1999, to give effect to certain provisions in the Prevention of Organised Crime Act (Act 121 of 1998) allowing for the criminal or civil seizure (and subsequent forfeiture to the State) of assets belonging to perpetrators of crime. Once forfeited, these assets are realised and are utilised to compensate the victims of crime and/or are ploughed back into law enforcement.
  • Sexual Offences and Community Affairs (SOCA) was established in October 1999, with the main objective of eradicating all forms of gender-based violence against women and children. The Unit comprises four sections, namely the Sexual Offences Section; the Domestic Violence Section; the Maintenance Section; and the Child Justice Section.
  • The Specialised Commercial Crime Unit (SCCU) was established with the focal objective of prosecuting serious economic offences, such as Fraud and related offences.
  • The Witness Protection Unit (WPU) essentially provides support services to vulnerable and intimidated witnesses and related persons in any judicial proceedings in the Criminal Justice System. The unit also provides assistance and co-operation to other countries, Tribunals and Special Courts, in the field of Witness Protection. The functions and duties of the WPU are classified "SECRET" in terms of the Witness Protection Act.
  • The Priority Crimes Litigation Unit (PCLU) was created by Presidential proclamation on 23 March 2003. In terms of its mandate, it is to manage and direct investigations and prosecutions relating to: criminal prosecutions arising from the Rome Statute; crimes against the State, including national and international terrorism; matters emanating from the Truth and Reconciliation (TRC) process and contraventions of The Regulation of Foreign Military Assistance Act (Act No 15 of 1998), the Non-Proliferation of Weapons of Mass Destruction Act (Act No 87 of 1993), The National Conventional Arms Control Act (Act No 41 of 2002), The Nuclear Energy Act (Act No 46 of 1999) and The Intelligence Services Act (Act No 65 of 2002).
  • The Integrity Management Unit (IMU) is a relatively new unit, tasked to continually assess, prevent, monitor, evaluate and maintain the NPA's integrity so that it is not in any way compromised. The IMU is further tasked to have complete oversight of the reactive systems and processes in instances where there has been a compromise of the organisation’s integrity.
  • Corporate Services (CS) is tasked to focus on servicing customer needs and to concentrate resources to provide low cost, high quality corporate service support to multiple business partners within the NPA.

Leadership[edit]

Controversial extraordinary changes in NPA leadership have been attributed to political interference.[1][2][3][4][5] In June 2014 former NPA prosecutor Glynnis Breytenbach, a Member of Parliament for the Democratic Alliance (DA) and Shadow Minister of Justice,[6][7] called for an end to ongoing political interference that has compromised the integrity of the NPA.[8][9]

The first NDPP, Bulelani Ngcuka, was appointed in 1998 and resigned in 2004.[5] He was succeeded by Vusi Pikoli (2005–2007), Mokotedi Mpshe (acting NDPP),[10][11] Menzi Simelane (2009–2012), Nomgcobo Jiba (acting NDPP),[10] and the incumbent Mxolisi Nxasana appointed with effect from 1 October 2013.[1][5][12] On 5 July 2014, President Zuma announced an inquiry to determine whether Nxasana is fit and proper to hold office in terms of section 12(6)(a)(iv) of the National Prosecuting Authority Act, 1998.[2][5][13]

Suspension of Vusi Pikoli[edit]

On 23 September 2007 President Thabo Mbeki suspended the then NDPP Vusi Pikoli.[14] Following Pikoli’s suspension, President Mbeki established a Commission of Enquiry headed by Dr Frene Ginwala (Ginwala Commission) in terms of section 12(6) of the National Prosecuting Act 32 of 1998 to determine the fitness of Pikoli to hold office of National Director. In the Report of the Enquiry into the Fitness of Advocate VP Pikoli to Hold the Office of the NDPP, the Ginwala Commission made a number of recommendations including that “Pikoli should be restored to his position and be sensitized to the broader responsibilities of his office and in particular to enhance his understanding of the security environment in which that office should function”.[15] One scholar has observed that despite the Ginwala Commission’s recommendations, Advocate Pikoli was removed from office by President Kgalema Montlante on 8 December 2008.[16] Mhango, who has written on the subject, notes that Montlante was later prevented by the judiciary in Pikoli v President and Others[17] to appoint a permanent NDPP until the legalities regarding the removal of Pikoli had been sorted in the courts.[18]

On 27 September 2007 the South African Broadcasting Corporation claimed that a warrant was issued on 10 September by the NPA for the arrest of the head of the South African Police and Interpol, Jackie Selebi. According to SABC the warrant was secured by Pikoli, before Pikoli was suspended by the country's President Mbeki.[19] [20] President Mbeki suspended NPA Head Vusi Pikoli, allegedly because of "an irretrievable breakdown" in the relationship between Pikoli and Justice Minister Brigitte Mabandla. However, journalists at the Mail and Guardian claim to have solid information supporting the widespread suspicion that President Mbeki suspended Pikoli as part of a bid to shield Police Commissioner Selebi.[21]

DA leader Helen Zille said that the suspension of Pikoli was a "serious development" that needed further explanation: "The country needs to know why Pikoli has been suspended."[22] Human Sciences Research Council political commentator Adam Habib said:[23]

If the president suspended Mr Pikoli on the grounds that he had issued a warrant for the commissioner's arrest, then it suggests that an invasion is being made into an independent institution's operations. Intervening in the operations of the National Prosecuting Authority constitutes a violation of our Constitution.

References[edit]

  1. ^ a b c d Mhango, Mtende (13 July 2014). "Don’t touch independence of NPA". Sunday Independent. Archived from the original on 20 July 2014. Retrieved 20 July 2014. 
  2. ^ a b c du Plessis, Charl (6 July 2014). "Nxasana’s head is on the block". City Press. Archived from the original on 7 July 2014. 
  3. ^ "Interference by political bosses is the NPA's undoing". The Times. 29 May 2013. Archived from the original on 7 May 2014. Retrieved 20 July 2014. 
  4. ^ "Political interference blamed for NPA’s woes". SABC News. 26 June 2014. Archived from the original on 9 July 2014. Retrieved 20 July 2014. 
  5. ^ a b c d Bailey, Candice (6 July 2014). "Nxasana drinks from poisoned chalice". Sunday Independent. Archived from the original on 7 July 2014. 
  6. ^ Ferreira, Emsie (21 May 2014). "Glynnis Breytenbach sworn in as MP". IOL. SAPA. Archived from the original on 19 July 2014. Retrieved 18 July 2014. 
  7. ^ "DA announces 'shadow cabinet'". Times LIVE. SAPA. 5 June 2014. Archived from the original on 6 June 2014. Retrieved 18 July 2014. 
  8. ^ "DA calls for MPs to investigate NPA head". Mail & Guardian. SAPA. 11 June 2014. Archived from the original on 19 July 2014. Retrieved 18 July 2014. 
  9. ^ Breytenbach, Glynnis (15 July 2014). "The NPA's reputation is in tatters (Speech by the DA's Shadow Minister of Justice, Glynnis Breytenbach MP during the budget vote debate on Justice, Parliament, July 15, 2014)". Politicsweb. Archived from the original on 20 July 2014. Retrieved 18 July 2014. 
  10. ^ a b Shamase, Nelly (6 January 2012). "Fall from grace does not harm Jiba's climb in NPA". Mail & Guardian. Archived from the original on 9 January 2012. Retrieved 20 July 2014. 
  11. ^ "Spy tapes: Mpshe ignored recommendations". IOL. SAPA. 30 August 2013. Archived from the original on 20 July 2014. Retrieved 20 July 2014. 
  12. ^ Hartley, Wyndham (30 August 2013). "Zuma names new heads for NPA, Special Investigating Unit". Business Day. Archived from the original on 1 September 2013. Retrieved 20 July 2014. 
  13. ^ "Zuma announces inquiry into NPA boss Nxasana". Mail & Guardian. 5 July 2014. Archived from the original on 8 July 2014. Retrieved 20 July 2014. 
  14. ^ For a discussion of the reasons for the suspension, see Report of the Enquiry into the Fitness of Advocate VP Pikoli to Hold the Office of the National Director (2008); and Mtendeweka Mhango, Constitutional Eighteenth Amendment Bill: An Unnecessary Amendment to the South African Constitution? 35(1) Statute Law Rev 19-34 (2014).
  15. ^ Ibid at 212-214; Mhango above.
  16. ^ Mhango above at 20
  17. ^ Pikoli v President and Others [2009] ZAGPPHC 99; 2010 (1) SA 400 (interdicting President Montlante from making a permanent NDPP before the legal proceedings regarding the legality of the removal of Pikoli were decided).
  18. ^ Mhango at 20
  19. ^ News24 (28 September 2007). "'Deafening' silence on Selebi". News24. Retrieved 2007-10-03. 
  20. ^ BBC News (27 September 2007). "SA's top policeman 'not arrested'". BBC News. Retrieved 2007-09-27. 
  21. ^ "The desperate bid to shield Selebi". Mail & Guardian. 5 October 2007. Retrieved 2008-01-11. 
  22. ^ Jonathan Clayton (27 September 2007). "Heads roll in bitter ANC turf war". The Times. Retrieved 2008-01-11. 
  23. ^ "Rumours swirl over Pikoli's suspension". Mail & Guardian. 30 September 2007. Retrieved 2008-01-11. 

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