Prosecution and Case Withdrawal

Questions and Answers

Under what circumstances may a prosecutor normally proceed with a prosecution?

When a prosecutor is satisfied that there is a reasonable prospect of conviction, unless public interest demands otherwise.

What is the potential consequence of a malicious prosecution?

A civil claim for damages against the NPA.

When can a prosecutor withdraw a charge?

At any time before the accused pleads to the charge.

What is the effect of a withdrawal of a charge on the accused's ability to raise a plea of previous acquittal?

The accused may not raise a plea of previous acquittal if charged again at a later stage. Signup and view all the answers

What is the requirement for stopping a prosecution after the accused has pleaded?

Authorization of the DPP. Signup and view all the answers

What is the effect of stopping a prosecution on the accused's ability to raise a plea of previous acquittal?

The accused may raise a plea of previous acquittal if charged again at a later stage. Signup and view all the answers

What is the difference between withdrawal and stopping of a prosecution?

Withdrawal can occur before the accused pleads, while stopping can occur after the accused has pleaded, with DPP authorization. Signup and view all the answers

Can a prosecution be reinstated after withdrawal or stopping?

Yes, subject to the powers of a court in respect of undue delays in prosecution. Signup and view all the answers

Who may review the decision to prosecute or not to prosecute?

The NDPP and the High Court upon application Signup and view all the answers

What is the primary role of a prosecutor?

To see that justice is done Signup and view all the answers

What must a prosecutor do when presenting evidence in court?

Place credible evidence before the court in support of the alleged crime Signup and view all the answers

What is the principle guiding the exercise of prosecutorial discretion?

Independence and freedom from political, public, and judicial interference Signup and view all the answers

In a bail application, what must a prosecutor do?

Place all relevant material before the court Signup and view all the answers

Who may institute a private prosecution in limited circumstances?

Specific categories of persons, including private persons with a substantial interest, husbands, wives, next of kin, and legal guardians Signup and view all the answers

What is required for a private prosecution to be instituted?

A nolle prosequi certificate Signup and view all the answers

What is the main feature of a private prosecution?

The production of a nolle prosequi certificate Signup and view all the answers

Under what circumstances may a court order a permanent stay of prosecution, even before the prescription period has expired?

In exceptional circumstances. Signup and view all the answers

What is the essential concept of fair trial rights, as stated in S v Zuma?

Substantive fairness. Signup and view all the answers

What is the purpose of providing sufficient detail in the charge against an accused, as per S 35(3)(a) of the Constitution?

To enable the accused to answer to it. Signup and view all the answers

Where is the charge contained in the High Court, and in a Lower Court, respectively?

In the High Court, the charge is contained in the indictment; in a Lower Court, it is contained in the charge sheet. Signup and view all the answers

Under what circumstances may multiple charges be joined in the same proceedings against an accused?

At any time before any evidence has been led in respect of any particular charge. Signup and view all the answers

When may a court direct that an accused be tried separately in respect of multiple charges?

When it is in the interest of justice. Signup and view all the answers

Study Notes

Prosecution

A prosecution should normally follow if there is a reasonable prospect of conviction, unless the public interest demands otherwise.
A malicious prosecution can lead to a civil claim for damages against the National Prosecuting Authority (NPA).

Withdrawal of a Case and Stopping of a Prosecution

A prosecutor may withdraw a charge at any time before the accused pleads, and the accused may be charged again later.
A prosecutor may stop a prosecution at any time after the accused has pleaded, but before conviction, with the authorization of the Director of Public Prosecutions (DPP).
If the accused is charged again, they can raise the plea of previous acquittal.

Review of the Decision to Prosecute

The National Director of Public Prosecutions (NDPP) may review the decision to prosecute or not to prosecute.
The High Court may, upon application, review and set aside the decision of the prosecuting authority.

Overview of Prosecutorial Responsibilities

A prosecutor must act with objectivity and protect the public interest.
The role of the prosecutor is to see that justice is done.
A prosecutor must place credible evidence before a court in support of the alleged crime.
The prosecutor has the discretion to institute and stop criminal proceedings, which must be exercised independently and free from interference.

Private Prosecutions

A private person may institute a private prosecution in limited circumstances, with a nolle prosequi certificate.
Categories of persons who may institute a private prosecution include:
- A person with a substantial and particular interest in the issue of the trial.
- A husband if the offence was committed against his wife.
- The wife or child, or next of kin of a deceased person.
- The legal guardian or curator of a minor or lunatic.

Fair Trial Rights

The right to a fair trial is not only focused on the accused, but also requires fairness to the public as represented by the state.
The right to be informed of the charge, with sufficient detail to answer to it, is a constitutional right.
A charge can be joined in the same proceedings against an accused at any time before any evidence has been led.
The court may direct that an accused be tried separately if it is in the interest of justice.

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