APPOINTMENT OF AD HOC PROSECUTOR CONSTITUTIONALLY SOUND

MOUSSA v THE STATE AND ANOTHER 2015 (2) SACR 537 (SCA)

Prosecuting authority — Prosecutor — Authority of — Ad hoc prosecutor appointed in terms of s 38 of National Prosecuting Authority Act 32 of 1998 — Validity of appointment challenged as being in conflict with s 179(4) of Constitution, as such prosecutors were not required to take oath like permanently appointed prosecutors in terms of s 32 — Ad hoc prosecutors normal prosecutors under control of senior NPA officers — Section 38 constitutionally sound.

Section 32 of the National Prosecuting Authority Act 32 of 1998 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 s 38 in respect of private counsel appointed in terms of the NPA Act does not detract from the manner in which they are required to perform their duties. Section 38 simply authorises the employment of ad hoc prosecutors to carry out specific and limited tasks on behalf of the NPA but does not specify their constitutional duties because those ad hoc prosecutors are ‘prosecutors’ in the normal sense of the word and are subject to the control of senior officers of the NPA within the structure of the NPA Act. They are part of the prosecuting authority whose constitutional duties are set out in s 32 of the NPA Act. It therefore follows that s 38 of the NPA Act is not unconstitutional for being in conflict with s 179(4) of the Constitution, which requires that the prosecuting authority must act without fear, favour or prejudice.

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