Prosecution Policy Amendments for Criminal Matters arising from Pre-1994 Conflicts: briefing

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Justice and Correctional Services

16 January 2006
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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
17 January 2006
PROSECUTION POLICY AMENDMENTS FOR CRIMINAL MATTERS ARISING FROM PRE-1994 CONFLICTS: BRIEFING

Chairperson:
Ms F Chohan-Khota (ANC)

Documents handed out:
Briefing on prosecution policy and directives relating to conflicts of the past
Prosecution policy amendments relating to conflicts of the past

SUMMARY
The National Prosecution Authority (NPA) briefed the Committee on its proposals to amend its Prosecution Policy, which will allow it to decide whether or not to prosecute cases arising from conflicts of the past and which were committed before 11 May 1994. The President had made it clear that there would be no general amnesty as this would fly in the face of the Truth and Reconciliation Commission process. The President’s proposal was to leave the matter in the hands of the National Directorate of Public Prosecutions (NDPP) to pursue any cases that, as is normal practice, it believed deserved prosecution and could be prosecuted. The NPA emphasised that all their proposals were within current legislation such as the Criminal Procedure Act. In determining whether or not to prosecute, the NDPP had issued general criteria governing such a decision. In deciding whether some matters of the past were prosecutable, the guidelines were insufficient and required specific policy guidelines. The NPA recommended that policy be determined in terms of section 179(5)(a) of the Constitution.

The amendments proposed by the NDPP were submitted and approved by the Minister of Justice and Constitutional Development, who also submitted them to Cabinet which had noted the amended Prosecution Policy. All the Directors of Public Prosecutions also supported the amendments. The amended Prosecution Policy came into effect on the 1st of December 2005.

Members of the Committee asked how a prosecution could be triggered if the NPA had an idea of how many cases were pending and what the effect of the amendments would be on the budget of the NPA.

MINUTES
Adv G Nel, the Deputy Director of Public Prosecutions, said that according to section 179(5)(a) and (b) of the Constitution, the National Director of Public Prosecution with the concurrence with the Minister must determine Prosecution Policy. Any amendments to this policy were to be included in the report referred to in section 35(2)(a) of the National Prosecution Authority Act. As a matter of public interest, the amendments in question were tabled before Parliament.

Adv Nel said that in his statement to Parliament on the tabling of the Report of the Truth and Reconciliation Commission (TRC) on the 25th of April 2003, the President had made it clear that there would be no general amnesty as this would fly in the face of the TRC process. The President said that the matter could not be resolved by setting up another amnesty process which would mean suspending the constitutional rights of those on the receiving end of gross human rights violations. Thus, any amnesty process, whether general, individualised or in any other form, had been categorically excluded by Government as an option, not least because it was unconstitutional.

The President’s proposal was to leave the matter in the hands of the National Directorate of Public Prosecutions (NDPP) to pursue any cases that, as is normal practice, it believed deserved prosecution and could be prosecuted. The NDPP would leave its doors open, for those willing to divulge information at their disposal and to co-operate in unearthing the truth, to enter into arrangements that were standard in the normal execution of justice, and which were accommodated in legislation. Adv Nel emphasised that all their proposals were within current legislation such as the Criminal Procedure Act. The President also said that the involvement of victims was crucial in determining the appropriate course of action.

Section 179(1) of the Constitution stated that there was a single prosecuting authority, and section 179(2) gave the prosecuting authority the power to institute criminal proceedings on behalf of the state and any functions incidental to this. Thus the NPA was an independent constitutional institution. In determining whether or not to prosecute, the NDPP had issued general criteria governing such a decision. In deciding whether some matters of the past were prosecutable, the guidelines were insufficient and required specific policy guidelines. Adv Nel recommended that policy be determined in terms of section 179(5)(a).

The amendments proposed by the NDPP were submitted and approved by the Minister of Justice and Constitutional Development, who also submitted them to Cabinet which noted the amended Prosecution Policy. All the Directors of Public Prosecutions also supported the amendments. All the cases were centralised in the office of the NDPP to ensure consistency in decision-making especially given the complexities in some of these cases. The Priority Crimes Litigation Unit (PCLU) was responsible for overseeing the investigations and instituting prosecutions. Since this task team was based in Pretoria, it was desirable that the cases be centralised in the office of the NDPP.

The Prosecution Policy was amended by the insertion of a new paragraph 8A. This gave the NDPP power to 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 line with this amendment, the NDPP determined the criteria in Appendix A relating to the prosecution of cases arising from conflicts of the past and were committed before 11 May 1994. Appendix A had three parts. Paragraph A was an introduction and paragraph B set out the procedural arrangements which must be adhered to in the prosecution process in respect of crimes arising from conflicts of the past. Paragraph C set out the criteria governing the decision to prosecute or not. This amended Prosecution Policy came into effect on the 1st of December 2005.

Discussion
Ms S Camerer (DA) asked how a prosecution could be triggered. Now that the guidelines were in place, would the workload of the PCLU greatly increase, and how many people were involved?

Adv Nel replied that a prosecution could be triggered firstly by a complaint being lodged by a victim. The PCLU had already looked at some of the cases from the TRC where amnesty had not been given. Some matters could be brought by the intelligence agency as well as the police. Thus there was a pro-active aspect to the triggering of prosecutions. It was not necessary at present to appoint new personnel given their current workload, but it may become necessary later on. It was hard to predict.

Mr G Solomon (ANC) asked what would happen where the victims did not want to prosecute an accused as the crime may have occurred many years ago.

Adv Nel said that the NDPP looked at all the circumstances of the case, such as the seriousness of the case, and whether there had been full disclosure for instance. It was for the NDPP to decide whether or not it would prosecute, not the victim.

Mr L Joubert (IFP) asked if the NPA had an idea of how many cases were pending. Also, in the case of a private prosecution, what was the situation regarding locus standi?

Adv Nel replied that at present it was impossible to know exactly how many cases were pending especially as the amendments were new. With regards to locus standi, anyone with an interest in the matter could bring an action.

Adv C Johnson (NNP) asked if looking at the circumstances of the accused created a loophole in the system, for example where they claimed to be too old or infirm to stand trial. Could the NDPP be taken on review by an unsatisfied victim if they decided not to prosecute?

Adv Nel replied that it was important to consider things like the health of the accused. The Chairperson added that there was no hierarchy of criteria. Each case had to be decided on its merits. The whole basket of criteria had to be examined in making the determination of whether or not to prosecute. The NDPP could be taken on review.

Mr B Magwanishe (ANC) asked what the effect of the amendments would be on the budget of the NPA.

Adv Nel said that he did not see a major effect on the NPA’s budget given the number of cases they were dealing with now. It was hard to predict how many more people would come forward and how this would affect their budget.

The meeting was adjourned.

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