SECTION 38 NATIONAL PROSECUTING AUTHORITY ACT NOT UNCONSTITUTIONAL

Moussa v S and another [2015] 2 All SA 565 (SCA)
Criminal procedure – Prosecution on fraud charges – Private counsel engaged by National Prosecuting Authority in terms of section 38 of the National Prosecuting Authority Act 32 of 1998 – Constitutionality of section 38 – Challenge on basis that it impinged on constitutional imperative of prosecutions without fear, favour or prejudice and the fact that section 38 does not provide for an oath as required for permanent members of the National Prosecuting Authority – Private counsel are required to conduct themselves within the structure of the Act, which ensures that control and supervision are in place to ensure compliance with section 32(1)(a) of the National Prosecuting Authority Act and constitutional norms.
The appellant, a Guinean national, was charged with 16 counts of fraud, alternatively, three counts of theft and three counts of money laundering in terms of the provisions of the Prevention of Organised Crime Act 121 of 1998. Because of the nature of the commercial transactions of which the appellant was charged, the National Prosecuting Authority (the “NPA”) took the view that it required the skills of a specialised prosecutor. Acting in terms of section 38 of the National Prosecuting Authority Act 32 of 1998, it thus engaged the services of an advocate (Pansegrouw) in private practice, who was also a former prosecutor. Faced with Pansegrouw as the prosecutor, the appellant’s legal representative requested documentation to allay the appellant’s concerns about Pansegrouw’s authority to conduct the prosecution. After the documentation was supplied and scrutinised, the appellant correctly concluded that the oath in terms of section 32(2) of the Act had not been taken by Pansegrouw. The appellant gave notice in terms of section 106(3), read with section 106(1)(h) of the Criminal Procedure Act 51 of 1977, challenging Pansegrouw’s authority to prosecute, and further, launched an application in the Gauteng Local Division in which he sought an order that Pansegrouw had no authority to prosecute him; that his trial was unfair and for a permanent stay of his prosecution. In those proceedings, the court asked whether the appellant would abide Pansegrouw taking the prescribed oath before the trial commenced. The appellant demurred, changed tack and chose, instead, to challenge the constitutionality of section 38 of the National Prosecuting Authority Act, which enables the engagement of persons outside of the NPA to perform prosecutorial services in specific cases. Thus, the appellant sought an order declaring section 38 to be unconstitutional on the basis that it permitted the appointment of a prosecutor outside the National Prosecuting Authority’s normal staff complement and therefore did not give effect to the constitutional principle enshrined in section 179(4) of the Constitution of the Republic of South Africa that requires the prosecuting authority to exercise its functions without fear, favour or prejudice. The Court deciding the application held that persons appointed in terms of section 38 were prosecutors in the normal sense of the word,but not necessarily as contemplated in certain other sections of the National Prosecuting Authority Act. The Court reasoned that Pansegrouw was obliged to carry out his functions as a prosecutor in the manner contemplated by section 179(4) of the Constitution. Section 32 requires permanently appointed prosecutors to take an oath of office that they will carry out their duties in the prescribed manner. The absence of an oath in section 38 did not detract from the manner in which private Counsel appointed in terms of the National Prosecuting Authority Act are required to perform their duties.
The present appeal was brought before the present Court.
Held – In dealing with the appellant’s challenge to the constitutionality of section 38 of the National Prosecuting Authority Act, the starting point was section 179(4) of the Constitution which provides that national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice. The National Prosecuting Authority Act is that legislation. The Court agreed with the court below that prosecutors appointed in terms of section 38 are statutorily required to perform their functions as part of the NPA, in the manner dictated by section 32(1)(a). The structure of the National Prosecuting Authority Act is such that control and supervision are in place to ensure compliance with section 32(1)(a) and constitutional norms. It is not the taking of the oath that guarantees prosecutorial independence and impartiality. Nor can the taking of the oath by itself ensure an accused’s fair trial rights. It is the manner in which prosecutions are initiated and conducted that is the test of prosecutorial independence. The appeal was dismissed.

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