CASAC should understand the Constitution better
24 May 2013
We have noted with concern claims made in the media suggesting that National Prosecuting Authority (NPA) is in crisis. Nothing could be further from the truth (see statement here).
The Council for the Advancement of South African Constitution (CASAC) has been disingenuous in its outbursts. Instead of making a genuine effort to assist all South Africans to better understand the Constitution (especially given a claim they make that they stand for its advancement), they went off at a tangent and chose to attack the NPA. In a desperate effort to succeed at all costs, they have clutched at different straws in an attempt to paint a bleak picture about an agency that is critical in the criminal justice system.
CASAC has conveniently omitted to inform South Africans that all prosecutorial decisions invariably enquire into the availability or otherwise of evidence. They are fully aware that it would not only be unlawful to proceed against an accused without sufficient evidence, but it would be unconstitutional. Prosecutorial decisions are an outcome of a meticulous and legally guided process. Such decisions are always based on proper consideration of the law and facts of each case. Even more, the existence or lack of evidence plays a critical role in the final decision.
As an institution of state, especially one responsible for law enforcement, the NPA will always treat and apply the requisite degree of care and circumspect in discharging its mandate. The NPA has the constitutional duty to take appropriate prosecutorial decisions without fear, favour or prejudice. We have a duty towards the victims of crime and the society at large, working together with other partners in the criminal justice system, to ensure that justice is served.
Equally important, the NPA has a duty towards the court and must consider cases based on their strength and merit before putting them on the court roll. This is a discretion provided for in terms of the law and we make every effort to ensure that cases we place on the roll, are court- ready. The role of a prosecutor is to present a credible case, supported by evidence, to a criminal court of law in order to enable the court to reach a just and fair verdict. It would be foolhardy to proceed in court with a case where the outcomes of investigations show that the State's case is weak or non-existent. Doing so could expose us to lawsuits for malicious prosecution.
The NPA is an institution of state created in terms of the law and derives its mandate from the constitution. This mandate further finds expression in other laws of general application, including the NPA Act, 1998 (as amended). There can be no other source outside the constitution and the law of general application that can and must form the basis for NPA's mandate.
Our track record on high convictions speaks for itself, and more interventions are in place to take this performance to even higher levels. This is something remotely close to what could be regarded as a crisis.
Suggestions that there is low morale at the NPA are devoid of any truth. They are but empty claims intended to create consternation. This conduct by CASAC bears all the hallmarks of an institution that is obsessed with the NPA, but one that fails to engage with it constructively.
Statement issued by the National Prosecuting Authority, May 24 2013
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