PROSECUTION POLICY AND DIRECTIVES RELATING TO PROSECUTION OF CRIMINAL MATTERS ARISING FROM CONFLICTS OF THE PAST

PROSECUTION POLICY AND DIRECTIVES RELATING TO PROSECUTION OF CRIMINAL MATTERS ARISING FROM CONFLICTS OF THE PAST

1. In his statement to the National Houses of Parliament and the Nation on the occasion of the Tabling of the Report of the Truth and Reconciliation Commission on 15 April 2003 the President, when dealing with the "issue of amnesty", made it clear that there shall be no general amnesty. He argued that such an approach would fly in the face of the TRC process and detract from the principle of accountability which is vital, not only in dealing with the past, but also in the creation of a new ethos within our society.

2. However, the President did not stop there. He went further and stated in respect of any further process of amnesty, as follows:

"Yet we have to deal with the reality that many of the participants in the conflict of the past did not take part in the TRC process….This reality cannot be avoided. .."The President then concludes that Government is of the firm conviction that we cannot resolve this matter by setting up yet another amnesty process, which in effect would mean suspending constitutional rights of those who were at the receiving end of gross human rights violations. Thus, any amnesty process, whether general, individualised or in any other form, has been categorically excluded by Government as a future option, not least because it would be unconstitutional.

3. The President then went on to explain Government’s proposal as follows:

"We have therefore, left this matter in the hands of the National Directorate of Public Prosecutions, for it to pursue any cases that, as is normal practice, it believes deserve prosecution and can be prosecuted. This work is continuing."; and

"However, as part of this process and in the national interest, the National Directorate of Public Prosecutions, working with our intelligence agencies, will leave its doors open for those who are prepared to divulge information at their disposal and to co-operate in unearthing the truth, for them to enter into arrangements that are standard in the normal execution of justice, and which are accommodated in our legislation."; and

"…in each instance where any legal arrangements are entered into between the NDPP and particular perpetrators as proposed above, the involvement of the victims will be crucial in determining the appropriate course of action.". (Emphasis added)

4. It is important for the Prosecuting Authority to deal with these matters on a uniform basis in terms of specifically defined criteria.

5.1 In terms of section 179(1) of the Constitution of the Republic of South Africa, 1996, there is a single national prosecuting authority in the Republic consisting of a National Director of Public Prosecutions (NDPP), who is the head of the prosecuting authority, and Directors of Public Prosecutions and prosecutors.

5.2 In terms of section 179(2) of the Constitution the prosecuting authority has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings. This means that the National Prosecuting Authority (NPA) is an independent constitutional institution and that the NDPP has full discretion regarding whether a particular prosecution should or should not be instituted.

5.3 Section 179(5)(a) of the Constitution provides that the NDPP must determine, with the concurrence of the Cabinet member responsible for the administration of justice, and after consulting the Directors of Public Prosecutions, prosecution policy, which must be observed in the prosecution process. To assist the prosecutors at arriving at a decision whether to prosecute or not, the NDPP has, in terms of the above provision, issued general criteria governing such a decision. These general Criteria are set out in paragraph 4 of the Prosecution Policy. These criteria could be defined as general policy guiding decision makers in arriving at informed decisions in the above regard. The question arises whether these guidelines are sufficient to assist the NDPP in arriving at decisions relating to offences which arise from conflicts of the past as contemplated by the President. The answer is no. Therefore, it is recommended that this process requires specific policy guidelines to facilitate the structured conclusion of the matter. It is therefore recommended that policy be determined in terms of section 179(5)(a) of the Constitution to deal with the matter under discussion.

6. Before dealing with the amendments to the Prosecution Policy, it is important to deal with the requirements for the determination for such Policy as required by section 179(5)(a) of the Constitution.

(a) In the first instance this provision requires that the Policy must be determined "with the concurrence of the Cabinet member responsible for the administration of justice". The amendments proposed by the NDPP were submitted and approved by the Minister for Justice and Constitutional Development. In view of the fact that the President requested the NPA to deal with the matter, the Minister also submitted the amendments and guidelines to Cabinet. Cabinet noted the amended Prosecution Policy.

(b) Secondly, section 179(5)(a) of the Constitution requires that the Prosecution Policy must be determined "after consultation with the Directors of Public Prosecutions". The amended Prosecution Policy was submitted to all Directors of Public Prosecutions. All the Directors supported the amended Prosecution Policy.

7. It was decided to centralise all these case in the Office of the NDPP for the following reasons:

(a) A prosecution should not undermine nation building and it is therefore important that all these cases be synchronised in the Office of the NDPP in order to ensure that there is consistency in decision-making.

(b) The decision is consistent with the request of many DPPs to the NDPP, namely, that the National Office should take over these cases, because of the complexities implicit therein.

(c) As indicated in paragraph B4 of the amended Policy, the Priority Crimes Litigation Unit (PCLU) shall be responsible for overseeing the investigations and instituting prosecutions. Furthermore, senior designated officials of various departments and other components of the NPA must assist the PCLU in the execution of its duties. Since this Task Team will be based in Pretoria, it is desirable that the cases be centralised in the Office of the NDPP.

8. The Prosecution Policy is amended by the insertion of a new paragraph 8A. In terms of this amendment the NDPP may supplement or amend the Prosecution Policy so as to determine prosecutorial policy and directives in respect of specific matters, for example, in respect of new legislation and matters of national interest. In accordance with this amendment, the NDPP determined the criteria in Appendix A, relating to the prosecution of cases arising from conflicts of the past and which were committed before 11 May 1994.

9. Appendix A consists of three parts, namely, an introduction part (par A); the procedural arrangements which must be adhered to in the prosecution process in respect of crimes arising from conflicts of the past (par B); and the criteria governing the decision to prosecute or not to prosecute in cases relating to conflicts of the past (par C).

10. (a) Paragraph A1 sketches the background and motivation for the

amended Policy and guidelines.

(b) Paragraph A2 sets out the various factors to be taken into account in developing and applying the prosecuting policy, directives and guidelines. See subparagraphs (a) to (l).

(c) Paragraph A3 emphasises that Government did not intend to mandate the NDPP to, under the auspice of his or her own office, perpetuate the TRC amnesty process. The existing legislation and normal process referred to by the President, include the application of—

section 204 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), in terms of which a person who is guilty of criminal conduct may testify on behalf of the State against his or her co-conspirators and if the Court trying the matter finds that he or she testified in a satisfactory manner, grant him or her indemnity from prosecution;

section 105A of the Criminal Procedure Act, 1977, which makes provision for a person who has committed a criminal offence to enter into a mutually acceptable guilty plea and sentence agreement with the NPA.

the processes determined and set out in the current Prosecution Policy, and the fact that such processes would not indemnify a person from private prosecution or civil liability. Therefore, if someone feels aggrieved regarding the process followed by the NPA, it can be tested in court.

11. Paragraphs A1 to 15 provide for the procedural arrangements which must be adhered to in the prosecution process in respect of crimes arising from conflicts of the past. In summary the following process must be followed:

(a) A person who faces possible prosecution and who wishes to enter into arrangements with the NPA, must submit a written sworn affidavit or solemn affirmation to the NDPP containing such representations (par 1).

(b) The NDPP must confirm receipt of the affidavit or affirmation and may request further particulars by way of a written sworn affidavit or solemn affirmation from the Applicant. The Applicant may also mero moto submit a further written sworn affidavit or solemn affirmation to the NDPP containing representations (Par 2).

(c) All representations must contain a full disclosure of all the facts, factors or circumstances surrounding the commission of the alleged offence, including all information which may uncover any network, person or thing, which posed a threat to our security at any stage or may pose a threat to our current security (par 3).

(d) The PCLU in the Office of the NDPP is responsible for overseeing investigations and instituting prosecutions in all such matters (par 4).

(e) The regional DPPs must refer all prosecutions arising from the conflicts of the past, which were committed before 11 May 1994, and with which they are or may be seized, immediately to the Office of the NDPP (par 5).

(f) The PCLU shall be assisted in the execution of its duties by a senior designated official of the National Intelligence Agency, the Detective Division of the South African Police Service, the Department of Justice & Constitutional Development and the Directorate of Special Operations (par 6).

(g) The NDPP must approve all decisions to continue an investigation or prosecution or not, or to prosecute or not to prosecute (par 7). The NDPP must also be consulted in respect of and approve any offer to a perpetrator relating to the bestowing of the status of a section 204 witness and all section 105A plea and sentence agreements (par 8).

(h) The NDPP may obtain the views of any private or public person or institution, our intelligence agencies and the Commissioner of the South African Police Service, and must obtain the views of any victims, as far as is reasonably possible, before arriving at a decision (par 9).

(i) A decision of the NDPP not to prosecute and the reasons for that decision must be made public and in accordance with section 179(6) of the Constitution, the NDPP must inform the Minister for Justice & Constitutional Development of all decisions taken or intended to be taken in respect of this prosecuting policy relating to conflicts of the past (par 10 and 11).

12. Paragraphs C1 to C3 set out the criteria governing the decision to prosecute or not to prosecute in cases relating to conflicts of the past. In the first instance the alleged offence must have been committed on or before 11 May 1994 and secondly the NPA must ascertain whether a prosecution can be instituted on the strength of adequate evidence after applying the general criteria set out in paragraph 4 of the said Prosecuting Policy of the NPA. If the answers to these questions are in the affirmative, the further criteria set out in paragraph C3 (a) to (j) must be applied. These criteria are in line with the criteria followed in the TRC process as well as the general criteria laid down for the prosecuting authority.

13. This amended Prosecution Policy came into effect on 1 December 2005.