South Africa Case Law

S v Zuma and Another (CCD30/2018)

S v Zuma and Another (CCD30/2018) [2021] ZAKZPHC 89; [2022] 1 All SA 533 (KZP); 2022 (1) SACR 575 (KZP) (26 October 2021)

Court

Kwazulu-Natal High Court, Pietermaritzburg

Case number

CCD30/2018

Judge

Koen

The court held that the special plea raised by Mr Zuma under section 106(1)(h) of the Criminal Procedure Act must be interpreted narrowly, referring only to the prosecutor's legal authority or standing to prosecute. Allegations of bias, lack of independence, or prosecutorial misconduct do not deprive a prosecutor of title to prosecute and must be pursued through separate substantive applications. The evidence established that Mr Downer SC was properly appointed, held the necessary authority, and no factual basis was shown for his removal. The court found no material disputes of fact requiring…

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• Special Plea
• Title To Prosecute
• Fair Trial Rights
• Recusal Of Prosecutor
• Constitutional Interpretation

S v Moussa (SS90/2008)

S v Moussa (SS90/2008) [2021] ZAGPJHC 61; [2021] 3 All SA 599 (GJ); 2021 (2) SACR 378 (GJ) (19 May 2021)

Court

South Gauteng High Court, Johannesburg

Case number

SS90/2008

Judge

Strydom

The court found that Adv Naidoo, the prosecutor, abused her position by entering into an agreement with the accused that implied withdrawal of charges upon payment of R1 million to Absa Bank. This conduct was outside her authority and contrary to the constitutional and statutory duties of a prosecutor. However, the abuse did not affect the title to prosecute, which vests in the prosecutorial authority (DPP/DDPP), not in individual prosecutors. The accused failed to prove that the continuation of prosecution constituted an abuse of the court process or that the prosecution was instituted for a…

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• Abuse Of Process
• Title To Prosecute
• Prosecutorial Discretion
• Prevention Of Organised Crime Act
• Fraud
• Money Laundering

Delport and Others v S (861/13)

Delport and Others v S (861/13) [2014] ZASCA 197; [2015] 1 All SA 286 (SCA); 2015 (1) SACR 620 (SCA) (28 November 2014)

Court

Supreme Court of Appeal

Case number

861/13

Judges

Cachalia, Leach, Theron, Majiedt, Schoeman

The Supreme Court of Appeal struck a criminal appeal from the roll, holding that the high court’s remittal order was not appealable and that leave was limited to narrow issues.

• Appealability Of Orders
• Title To Prosecute
• Remittal Orders
• Criminal Trial Delay
• Substantial Compliance
• Constitutional Right To Fair Trial

Porritt and Another v National Director of Public Prosecutions and Others (978/2013)

Porritt and Another v National Director of Public Prosecutions and Others (978/2013) [2014] ZASCA 168; [2015] 1 All SA 169 (SCA); 2015 (1) SACR 533 (SCA) (21 October 2014)

Court

Supreme Court of Appeal

Case number

978/2013

Judges

Mpati, Brand, Tshiqi, Saldulker, Fourie

The Supreme Court of Appeal held that the removal of prosecutors on the basis of apprehension of bias does not entitle the accused to an acquittal under section 106(4) of the Criminal Procedure Act. The test for removal of a prosecutor for bias is not the same as that for the recusal of a judicial officer. Prosecutors are inherently partisan in adversarial proceedings, and their prior involvement or funding by SARS does not automatically compromise the fairness of the trial. The correct test is whether substantive unfairness arises on the facts, not a general standard of independence. The cou…

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• Title To Prosecute
• Fair Trial Rights
• Apprehension Of Bias
• Removal Of Prosecutor
• Section 106 Criminal Procedure Act
• Role Of Prosecutor

Ndluli v Wilken en Andere (378/89)

Ndluli v Wilken en Andere (378/89) [1990] ZASCA 107; 1991 (1) SA 297 (AD); [1991] 1 All SA 256 (A) (27 September 1990)

Court

Supreme Court of Appeal

Case number

378/89

Judges

Eksteen, Hoexter, Smalberger, Steyn, Goldstone

The court held that the special plea under section 106(1)(h) of the Criminal Procedure Act is not applicable to the circumstances alleged by the appellant. The plea concerns the authority of the individual prosecutor appearing in court, not the entitlement of the State to prosecute based on prior undertakings. The appellant's grievance was against the State's decision to prosecute despite an alleged agreement, not against the locus standi of the prosecutor in court. The regional magistrate was obliged to hear and decide the special plea, but the plea itself was misconceived and could not succ…

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• Title To Prosecute
• Special Plea
• Prosecutorial Discretion
• Review Of Prosecutorial Decision