| 2007 04 21 Address to the DSO National Conference |
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Chapter 8 of the Constitution headed Courts and Administration of Justice provides in section 165(2):
The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.
Section 179(1) it provides that:
National Legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.
The National Prosecuting Authority Act in section 32 provides that when the President in terms of section 179 of the Constitution appoints the National Director he is ensured of Security of Tenure for a period of ten (10) years although he may be suspended or removed by the President, the final word is with the Houses of Parliament.
In terms of section 32 of the Act the National Director shall:
Serve impartially and exercise carry out or perform his or her powers duties and functions in good faith and without fear, favour or prejudice and subject only to the Constitution and the Law.
The National Director must take an oath of office before a senior judge that he will:
enforce the law of the Republic without fear, favour or prejudice, and as the circumstances of any particular case may require in accordance with the Constitution and the Law.
The position in Common Law in relation to the administration of justice is set out in the 6th edition of the South African Criminal Law and Procedure by Gardiner and Lansdown in the chapter headed as Offences Relating to the Administration of Justice. At page 1120 it is said:
The administration of justice may be brought into contempt not only by attacks upon judges or magistrates, but also by attacks upon other officials charged with this administration. Thus in R v Hardy, 25 N.L.R. 359 at 371, Dove Wilson, J., said: “I cannot look upon such unseemly attack upon the public prosecutor as being otherwise than calculated to hinder the proper administration of justice, and if that is so, I have no doubt whatsoever that it constitutes contempt of court.”
I am certainly not advocating that prosecutors should institute proceedings against persons who criticize them or “ scandalize” them. The prosecutions are likely to fail for the reasons given by Justice Kriegler and Justice Sachs in S v Mamabolo (ETV and Others intervening 2001(3) SA page 409.
To paraphrase the dictum of justice Sachs at page 445:
if respect for the [Prosecution Services] is to be regarded as integral to the maintenance of the rule of law….such respect will be spontaneous, enduring and real to the degree that it is earned, rather than to the extent that it is commanded.
The reason why I draw attention to the provisions of the Constitution and the Act is to show that both the judiciary and the prosecution authority have to be independent and exercise their functions without fear, favour or prejudice.
The freedom of expression enshrined in section 16(1) of the Constitution is an important provision to protect those who speak the truth and make fair comment or on the facts which may not be true but which they reasonably believe to be true provided that reasonable steps were taken to verify their correctness. The Prosecuting Authority and its prominent members may. in terms of the decisions of our courts find it more difficult than the ordinary citizens to defend themselves against those allegations.
But this does not mean that the Prosecuting Authority and its legal representatives and the investigators are open game. They should not be accused of false motives, that they are parties to conspiracies, or that they are guilty of acts involving moral turpitude, or that they are not true to their oath of office.
Unsubstantiated allegations of such behaviour could not only affect the persons against whom the unfounded accusations are made. They undermine the administration of justice.
Specific provision is made against interference in Section 32(b) of the Act:
Subject to the Constitution and this Act, no organ of state and no member or employee of an organ of state nor any other person shall improperly interfere with, hinder or obstruct the prosecuting authority or any member thereof in the exercise, carrying out or performance of its, his or her powers, duties and functions.
In the Constitution we find Principles of Co-operative Government and Intergovernmental Relations.
In section 41(1) we find:
All spheres of government and all organs of state within each sphere must:
(a) preserve the peace, national unity and the indivisibility of the Republic;
(b) secure the well-being of the people of the Republic;
(c) provide effective, transparent, accountable and coherent government for the Republic as a whole;
(d) be loyal to the Constitution, the Republic and its people;
(e) respect the constitutional status, institutions, powers and functions of government in the other spheres;
(f) not assume any power or function except those conferred on them in terms of the Constitution;
(g) exercise their powers and perform their functions in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere, and
(h) co-operate with one another in mutual trust and good faith by:
(i) fostering friendly relations;
(ii) assisting and supporting one another;
(iii) informing one another of, and consulting one another on, matters of common interest;
(iv) co-ordinating their actions and legislation with one another;
(v) adhering to agreed procedures; and
(vi) avoiding legal proceedings against one another.
Contrary to these provisions an unfortunate turf war was declared by the South African Police Services which led to a Judicial Commission of Enquiry.
The National Prosecuting Authority and its investigating unit better known as the “Scorpions” are often accused of improper conduct particularly by those whom it has decided to prosecute who proclaim that they have been persecuted and that they are innocent. Those who are convicted claim that their trials were unfair even if they have been found by Higher Courts of Appeal not to have been so. Those of high political profile are reluctant to accept the impartiality of the prosecutor. In some instances their political supporters make fiery speeches, hold large protest meetings, toyi-toying believing that those responsible for the prosecution will withdraw the charges and even that the courts will be persuaded to decide the matter to their satisfaction.
We are all free to criticize the courts and the prosecutors. Let us remember “scandalizing” them undermines our Constitution and our democracy.
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