South Africa Case Law

Mgatyelwa v Minister of Police and Another (1174/2016)

Mgatyelwa v Minister of Police and Another (1174/2016) [2024] ZAECMHC 13 (19 March 2024)

Court

Eastern Cape High Court, Mthatha

Case number

1174/2016

Judge

Zono

The court found that the Minister of Justice & Correctional Services is correctly joined as a defendant in terms of section 2(1) of the State Liability Act, as the executive authority responsible for the Department of Justice and Correctional Services and for exercising final responsibility over the National Prosecuting Authority. The Minister's department plays a crucial role in the expenditure and salary determination for prosecutors, establishing dual principalship. However, the National Prosecuting Authority, as the employer of the prosecutor involved, has a direct and substantial interes…

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• Joinder Of Parties
• Vicarious Liability
• State Liability Act
• National Prosecuting Authority Act
• Misjoinder
• Non Joinder

Jiba and Another v General Council of the Bar of South Africa and Another; Mrwebi v General Council of the Bar of South Africa (141/17; 180/17)

Jiba and Another v General Council of the Bar of South Africa and Another; Mrwebi v General Council of the Bar of South Africa (141/17; 180/17) [2018] ZASCA 103; [2018] 3 All SA 622 (SCA); 2019 (1) SA 130 (SCA); 2019 (1) SACR 154 (SCA) (10 July 2018)

Court

Supreme Court of Appeal

Case number

141/17; 180/17

Judges

Shongwe, Leach, Seriti, Van der Merwe, Mocumie

The majority held that the GCB failed to establish, on a preponderance of probabilities, that Jiba was not a fit and proper person to remain on the roll of advocates. Her conduct, while possibly incompetent in her official capacity, did not amount to dishonesty or personal gain, and she acted on legal advice. The complaints against her did not meet the threshold for striking off. As regards Mrwebi, the majority found that his misunderstanding and mishandling of the consultation requirement under the NPA Act constituted misconduct, but not dishonesty or personal gain. The appropriate sanction…

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• Fit And Proper Person
• Striking Off Roll
• Advocate Misconduct
• Admission Of Advocates Act
• National Prosecuting Authority Act
• Costs In Professional Discipline

Freedom Under Law (RF) NPC v National Director of Public Prosecutions and Others (89849/2015)

Freedom Under Law (RF) NPC v National Director of Public Prosecutions and Others (89849/2015) [2017] ZAGPPHC 791; 2018 (1) SACR 436 (GP) (21 December 2017)

Court

North Gauteng High Court, Pretoria

Case number

89849/2015

Judges

Tlhapi, Mothle, Wright

The Full Bench found that the decision to withdraw charges against Ms Jiba was irrational and unlawful, as it was based on a material error of law regarding section 78 of POCA, which does not afford immunity for intentional criminal conduct such as fraud and perjury. The NDPP and Regional Head failed to provide adequate and rational reasons for the withdrawal, and their after-the-fact explanations could not cure the defect. The President's failure to suspend and institute inquiries into the fitness of Jiba and Mrwebi to hold office in the NPA was irrational and unlawful, given the serious adv…

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• Legality Principle
• Irrationality Review
• National Prosecuting Authority Act
• Suspension Of Public Officials
• Withdrawal Of Prosecution
• Separation Of Powers

S v Porritt and Another (SS40/2006)

S v Porritt and Another (SS40/2006) [2016] ZAGPJHC 210; [2016] 4 All SA 223 (GJ); 2016 (2) SACR 700 (GJ) (28 July 2016)

Court

South Gauteng High Court, Johannesburg

Case number

SS40/2006

Judge

Spilg

The court found that the accused failed to establish, on a balance of probabilities, that their fair trial rights under section 35(3)(b) of the Constitution would be infringed if the trial proceeded in Johannesburg. The alleged financial, logistical, and psychological disadvantages were not substantiated, particularly given the availability of accommodation in Johannesburg and the fact that all relevant documents had been provided by the State. The court held that the right to adequate facilities to prepare a defence does not encompass all conveniences of home life, and that any unforeseen ne…

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• Jurisdiction Of High Court
• Fair Trial Rights
• Centralisation Of Criminal Proceedings
• Constitutional Right To Adequate Facilities
• Criminal Procedure Act
• National Prosecuting Authority Act

Khumalo and Others v Louw and Another (2014/40692)

Khumalo and Others v Louw and Another (2014/40692) [2016] ZAGPJHC 39 (22 February 2016)

Court

South Gauteng High Court, Johannesburg

Case number

2014/40692

Judges

Van der Linde, R Francis

The court held that the Johannesburg Regional Court did not have territorial jurisdiction to commence or continue criminal proceedings against the first applicant, as the alleged offence was committed at Komatipoort. The direction issued by the acting deputy NDPP under s.22(3) of the National Prosecuting Authority Act and s.111 of the Criminal Procedure Act was invalid because the prerequisite—jurisdiction in the initial court—was absent. The purported transfer of proceedings was not lawful, and the direction was set aside. The court further found that the conduct of the presiding magistrate…

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• Territorial Jurisdiction
• Review Of Inferior Courts
• National Prosecuting Authority Act
• Criminal Procedure Act
• Administrative Action
• Perceived Bias

Moussa v S and Another (181/2014)

Moussa v S and Another (181/2014) [2015] ZASCA 61; [2015] 2 All SA 565 (SCA); 2015 (2) SACR 537 (SCA) (14 April 2015)

Court

Supreme Court of Appeal

Case number

181/2014

Judges

Navsa, Ponnan, Mhlantla, Mbha, Zondi

Section 38 of the National Prosecuting Authority Act is not unconstitutional. The statutory scheme establishes a single national prosecuting authority with strict hierarchical controls and supervision, ensuring that private counsel appointed under section 38 act under the direction of senior NPA officials who have taken the prescribed oath. The absence of a specific oath for private prosecutors does not undermine prosecutorial independence or impartiality, nor does it violate the accused's right to a fair trial. The Constitution requires that prosecutions be conducted without fear, favour, or…

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• National Prosecuting Authority Act
• Prosecutorial Independence
• Constitutional Validity
• Appointment Of Private Prosecutors
• Fair Trial Rights
• Oath Of Office

Panday v Minister of Police and Others (12044/10)

Panday v Minister of Police and Others (12044/10) [2012] ZAKZDHC 20; 2012 (2) SACR 421 (KZD) (18 April 2012)

Court

Kwazulu-Natal High Court, Durban

Case number

12044/10

Judge

Murugasen

The court found that Section 205 of the Criminal Procedure Act does not require magistrates to retain records of applications or reasons for issuing subpoenas, and the applicant was not prejudiced as he received complete and correct records. The supporting affidavits established a sufficient factual basis for the subpoenas, and the magistrates exercised their discretion judicially. The authorisations relied upon by the prosecutors were valid under the National Prosecuting Authority Act, and there was no requirement for specific or written authorisation for each application. The applicant's pr…

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• Criminal Procedure Act Section 205
• Constitutional Right To Privacy
• Judicial Discretion
• Procedural Irregularity
• National Prosecuting Authority Act
• Review Of Subpoena Issuance

Mamase and Others v S (175/08)

Mamase and Others v S (175/08) [2009] ZASCA 114; 2010 (1) SACR 121 (SCA) ; [2010] 1 All SA 427 (SCA) (25 September 2009)

Court

Supreme Court of Appeal

Case number

175/08

Judges

Mpati, Farlam, Snyders, Kroon, Leach

The Supreme Court of Appeal held that a prosecutorial direction under s 22(3) of the NPA Act must be issued before proceedings commence to confer jurisdiction.

• Jurisdiction Of High Courts
• National Prosecuting Authority Act
• Criminal Procedure Act
• Validity Of Prosecutorial Directions
• Criminal-jurisdiction
• Prosecutorial-directions

National Director of Public Prosecutions v Zuma (8652/08)

National Director of Public Prosecutions v Zuma (8652/08) [2008] ZAKZHC 77 (22 October 2008)

Court

High Courts - Kwazulu Natal

Case number

8652/08

Judge

Nicholson

The High Court granted the National Director of Public Prosecutions leave to appeal to the Supreme Court of Appeal on 16 grounds arising from the September 2008 judgment.

• Leave To Appeal
• Section 179 Constitution
• National Prosecuting Authority Act
• Legitimate Expectation
• Political Interference
• Costs Order

Bonugli and Another v Deputy National Director of Public Prosecutions and Others (17709/2006)

Bonugli and Another v Deputy National Director of Public Prosecutions and Others (17709/2006) [2008] ZAGPHC 28 (1 February 2008)

Court

High Courts - Gauteng

Case number

17709/2006

Judge

B R Du Plessis

The High Court set aside the appointment of private advocates as prosecutors because complainant funding and prior involvement created a reasonable apprehension of bias.

• Prosecutorial Independence
• Fair Trial Rights
• Appointment Of Ad Hoc Prosecutors
• Conflict Of Interest
• Section 179 Constitution
• National Prosecuting Authority Act