Minister Jeff Radebe, the new Minister of Justice and Constitutional development, has studied law and even holds a Masters degree in International Law from the University of Karl Marx in Leipzig. One would not expect of such an educated man that he would publish an article in the national media which appears to surreptitiously draw on a student hand book and worse - then mangle its true meaning.

Minister Radebe stated in the Sunday Times of 12 April 2009, that: "... in the case of the State versus Dubay 1976 (3FA), our courts are not to interfere with the bona fides of the prosecution authority, because it would be irregular to do so." Presumably Minister Radebe was referring to the case of S v Dubayi 1976 (3) SA 110 (Tk). But nowhere in that case can the words ‘bona fides' be found. Instead, they appear in a curiously similar statement, not credited by Minister Radebe, appearing in the Criminal Procedure Handbook (by JJ Joubert et al, 2007, 8^th ed) where the authors state: "However, courts can in principle not interfere with a bona fide decision of the prosecuting authority. It is irregular to do so - Dubayi 1976 (3) SA 110 (Tk)." (p 56).

Minister Radebe continues: "Our courts, as a rule, also cannot interdict the prosecution authorities from prosecuting when the latter have decided against it (sic) and cannot, as a rule, compel the prosecution authority to prosecute. This was clearly stated in the case of Sanderson versus Attorney General Eastern Cape 1998 (1FACR227(CC)."

Peculiarly, a similar statement appears in that same Criminal Procedure Handbook, which Minister Radebe does not credit: "[A] court will as a rule not interdict the prosecuting authority from prosecuting where it has decided to do so .... Nor will it as a rule ... compel the prosecuting authority to prosecute .... See Sanderson v Attorney General, Eastern Cape 1997 (12) BCLR 1675 (CC). (p56)"

Minister Radebe is of course right. Our courts cannot interdict (prevent) anyone from doing anything they had decided against doing and weren't going to do. Presumably they have better things to do. But his analysis goes (even further) astray. As the authors note, our courts will not, as a rule, that is, usually, order the prosecution either not to prosecute (by interdict) or to prosecute (by mandamus). The authors furthermore observe that our courts regard the barring of a prosecution as more radical than compelling them to prosecute - which is what was clearly stated in the Sanderson case. Thus Minister Radebe's rendition is quite inaccurate. It is not correct at all that the courts cannot interdict to prevent a prosecution nor compel a prosecution. That our courts usually will not does not mean they cannot. Certainly this is not what is ‘clearly stated in the case of Sanderson versus Attorney General Eastern Cape.'

The authors of the Criminal Procedure Handbook include their discussion under the heading: ‘The Prosecuting Authority and the Judiciary'.  It is perhaps for that reason that Minister Radebe argues that: "... [I]n terms of our law, [the Director of Public Prosecutions], in exercising his discretion as dictated by our laws, assumes a judiciary (sic) function. As I stated, this function cannot be usurped by another court or judge. And the judicial function of the director has the same constitutional protection as that of a court of law or a judge."

This is indeed a novel idea but Minister Radebe would have benefitted from observing the first few sentences of the next Section in the Criminal Procedure Handbook: ‘The function of the [Director of Public Prosecutions] is of course prosecutorial and not judicial - Ramgobin 1985 (4) SA 130 (N) at 130J-131D. Anything that concerns the liberty of a person is in principle something to be determined by the court.' (p 58)

Just in case it was not clear, the authors state emphatically that ‘the prosecuting authority's discretion to prosecute, however, does not fall beyond the jurisdiction of a court of law ... [and] can, of course, be reviewed by the courts on the basis of ordinary administrative law grounds of review ...'. (p 57)

Should our new Minister of Justice go back to law school?

James Grant is a Senior Lecturer in Law, Wits Law School

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