Chief Justice: Braamfontein - I Mahomed
CHIEF JUSTICE MAHOMED
COMMENTS ON THE NATIONAL PROSECUTING AUTHORITY BILL, 1997
1. Ad s 2(4)
The words "exercise final responsibility over may be read as implying a ministerial control which would be inimical to the proposed independence of the National Director. Although that wording appears in the Constitution, the opportunity presents itself to spell out in the Act that the responsibility referred to is one for the administrative functioning of the prosecuting authority and not responsibility in die sense of overseeing the National Director's own function.
2. Ad s 5(2) (b)
The words in the third last line - "at the bottom thereof" should be replaced by the words "at the foot of the relevant document".
Furthermore a prosecutor is not stationed at a High Court in the same way as in the case of a lower court. It is therefore suggested that the last line of (b) (ii) be altered to read "the most senior judge or magistrate, as the case may be, of the court in which the prosecutor concerned is to function".
3. Ad s 8(1)
This provision is objectionable. In the first place it empowers the appointment of a person with no legal training or experience whatever. That is patently undesirable. Secondly, in an open and democratic society it is necessary that appointment be preceded by a transparent and fair sifting and evaluation of eligible candidates. It is therefore suggested that appointment be by the Judicial Service Commission or in accordance with the procedures similar to those of that body. Thirdly, in as far as appropriate qualification must involve some objective criteria, these should be stated.
4. Ad s 9(6) (b)
It is unclear whether the representations referred to relate to the matter of removal and suspension. In so far as it appears that they relate only to removal the National Director would, of course, be entitled to make representations also as regards suspension.
5. Ad s 10(1)
Grammatically it is wrong to speak in (b) of proceedings in a tribunal and it is suggested that the word "in" be replaced by "before". In (k) the contemplated report is no doubt an annual one to Parliament. This should be so stated.
6. Ad s 10(2)
The need for the concurrence of the Minister detracts from the proposed independence of the National Director. At most there should be consultation with the Minister.
7. Ad s 11(3)
The words "an action" in (a) are inappropriate and confusing. They imply civil proceedings and no reason suggests itself why the latter kind of proceedings would be necessary "for the purposes of criminal prosecution". It is suggested that the latter words are unnecessary and that the words "an action" be replaced by "criminal proceedings".
8. Ad s 12(1) (a)
The words "two or three" are insufficiently clear. They should be replaced by the words "not more than three".
9. Ad s 12(2)
The word "application" is appropriate to the function of a Court. The word "administration" would appear more fitting.
10. Ads 14(2)
There is good reason to require involvement in the administration of the law just as in the case of a Director in s 12(2) (b). It is therefore suggested that a similar provision be included in s 14(2), the period concerned being, say, at least 5 years.
11. Ad s 18(1)
As a matter of language, this empowers remuneration not only in excess of that of a Judge of Appeal but a limitless excess. That cannot be the intention. Presumably it is National Director's remuneration at that level. Therefore either "less" should be replaced by "more" or it should be stated that the remuneration shall be the same as that of a Judge of Appeal.
Secondly, as a matter of policy, it is anomalous and undesirable to equate the status of a prosecuting functionary, being but a representative of one of the parties to a criminal dispute, with that of the judicial functionary burdened with the final responsibility of deciding that dispute. That being so, the remuneration level of the National Director ought to be below or, at best, not more than that of a High Court Judge.
12. Ad s 21(2)
The meaning and purpose of this provision are obscure. Literally, co-ordinate means either to render equal or to place in proper relative positions. The first meaning is inappropriate. It is contrary to the scheme of the Act that the functions of a Director should equate those of the National Director and if the latter is absent or incapacitated, s 9(1) provides for the appointment of an Acting National Director. As regards the second meaning, if the National Director is to be truly independent, co-ordination, whatever it may be intended to mean, can be left to him or her. In short, there appears no need for this sub-section.