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Questions and Answers
Under what circumstances may a prosecutor normally proceed with a prosecution?
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?
What is the potential consequence of a malicious prosecution?
A civil claim for damages against the NPA.
When can a prosecutor withdraw a charge?
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?
What is the effect of a withdrawal of a charge on the accused's ability to raise a plea of previous acquittal?
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What is the requirement for stopping a prosecution after the accused has pleaded?
What is the requirement for stopping a prosecution after the accused has pleaded?
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What is the effect of stopping a prosecution on the accused's ability to raise a plea of previous acquittal?
What is the effect of stopping a prosecution on the accused's ability to raise a plea of previous acquittal?
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What is the difference between withdrawal and stopping of a prosecution?
What is the difference between withdrawal and stopping of a prosecution?
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Can a prosecution be reinstated after withdrawal or stopping?
Can a prosecution be reinstated after withdrawal or stopping?
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Who may review the decision to prosecute or not to prosecute?
Who may review the decision to prosecute or not to prosecute?
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What is the primary role of a prosecutor?
What is the primary role of a prosecutor?
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What must a prosecutor do when presenting evidence in court?
What must a prosecutor do when presenting evidence in court?
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What is the principle guiding the exercise of prosecutorial discretion?
What is the principle guiding the exercise of prosecutorial discretion?
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In a bail application, what must a prosecutor do?
In a bail application, what must a prosecutor do?
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Who may institute a private prosecution in limited circumstances?
Who may institute a private prosecution in limited circumstances?
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What is required for a private prosecution to be instituted?
What is required for a private prosecution to be instituted?
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What is the main feature of a private prosecution?
What is the main feature of a private prosecution?
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Under what circumstances may a court order a permanent stay of prosecution, even before the prescription period has expired?
Under what circumstances may a court order a permanent stay of prosecution, even before the prescription period has expired?
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What is the essential concept of fair trial rights, as stated in S v Zuma?
What is the essential concept of fair trial rights, as stated in S v Zuma?
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What is the purpose of providing sufficient detail in the charge against an accused, as per S 35(3)(a) of the Constitution?
What is the purpose of providing sufficient detail in the charge against an accused, as per S 35(3)(a) of the Constitution?
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Where is the charge contained in the High Court, and in a Lower Court, respectively?
Where is the charge contained in the High Court, and in a Lower Court, respectively?
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Under what circumstances may multiple charges be joined in the same proceedings against an accused?
Under what circumstances may multiple charges be joined in the same proceedings against an accused?
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When may a court direct that an accused be tried separately in respect of multiple charges?
When may a court direct that an accused be tried separately in respect of multiple charges?
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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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Description
Learn about the guidelines and procedures surrounding prosecution, including when to prosecute and when to withdraw a case. Understand the implications of malicious prosecution and the role of the National Prosecuting Authority.