City Legal Adviser
OFFICE OF THE CITY MANAGER
NATIONAL PROSECUTING AUTHORITY BILL (B 113 OF 1997)
We note with no little concern that the aforesaid Bill which was tabled in Parliament recently makes no provision for the Director to delegate a Municipal official to prosecute in the Magistrate Court which deals with municipal matters.
The Cape Town Municipality currently provides the serve in the Cape Town, Wynberg and Mitchells Plain Magisterial areas. Please find annexed hereto a representation which was recently made by this office to the local Attorney General relating to this matter.
It is our understanding that the Department of Justice will be unable to provide this service in the event of the relevant municipal officials not being available.
CITY OF CAPE TOWN
Advocate F Kahn
30 Queen Victoria Street
WORKING DOCUMENT OF THE NATIONAL PROSECUTING AUTHORITY BILL, 1997
A copy of the Working Document relating to the proposed National Prosecuting Authority Bill, 1997 has been made available to me. Since the comments contained herein intimately affect your powers under the existing and proposed legislation, they are addressed to you.
Your attention is invited to the fact that the wording of the above-mentioned Bill is such that it appears unlikely that a Director of Public Prosecutions would have authority to appoint as prosecutors or delegate authority to institute or conduct criminal prosecutions to municipal employees in respect of municipal offences.
At present appropriately qualified employees of the Municipality of the City of Cape Town are, with your approval, providing prosecution services in three magisterial districts in respect of criminal proceedings relating to municipal affairs. This arrangement has the effect of alleviating the work load for State prosecutors and also of enabling persons with specialised knowledge and training to deal with municipal prosecutions. It therefore is of benefit to both the State and the Municipality.
However, the authority of municipal prosecutors to deal with criminal prosecutions in the lower courts has been challenged from time to time but could always be resolved by the issue of a Bench appointment. Since section5 of the Criminal Procedure Act is to be repealed, this will no longer be possible.
The introduction of the proposed new Act affords the opportunity to bring clarity to the issue of the legality of the appointment of municipal prosecutors. It is respectfully submitted that the proposed Act should contain sufficient flexibility to permit the Director to appoint appropriately qualified municipal employees as prosecutors in the lower courts in respect of criminal proceedings relating to municipal affairs provided that he or she is satisfied as to the need for such appointment and the appropriateness of the qualifications of the person(s) so appointed. At present section15 seems to imply that only State employees can be so appointed. Section 21 clearly does not deal with the appointment of prosecutors - see the definition in section 1(ix).
Your attention is also invited to the fact that whilst sections1 (ix), 11(7)(a) and 15(1) speak of the appointment of prosecutors under section12(1), the last-mentioned provision refers instead to the delegation of authority to institute or prosecute criminal offences and to the assignment of a person as prosecutor to a lower court. Section 12(2) then speaks of an assignment in terms of subsection (1)(b) only being made "from persons who are appropriately qualified to be appointed as prosecutor. The use of these various terms sometimes in contra distinction to one another and at other times as interchangeable is likely to cause confusion.