National Prosecuting Authority

I put it to you…1

Should you happen to be charged with one of the offences referred to in this book,2 you will become ‘the accused’ in the case, and the person who represents the State in trying to prove you guilty is the ‘prosecutor’.3 There are prosecutors in the Magistrates’ Courts, the Regional Courts, and the High Court, and they all perform an important function.

Their job is not to investigate the alleged offence, but to prosecute on the basis of the information provided to them in the docket of the investigating officer – most often the South African Police Services.4 And, then, the prosecutor can also decide whether to prosecute or not – an important power, and the exercise of which is why senior executives of the NPA are sometimes in the news.

The Constitution provides for there to be a single prosecuting authority for the whole Republic, and so whilst there are hundreds of ‘prosecutors’ around the country, they all are employed by the National Prosecuting Authority, established in terms of Act 32/1998.

The NPA Act falls under the authority of the Minister of Justice, but it is effectively administered by the head of the body – who is appointed by the State President, and known as the National Director of Public Prosecutors. He has ultimate control of all prosecutions.

A. Investigating Directorate

Certain offences5 can be designated for investigation by an ‘Investigating Director’. They are members of the NPA, and have extensive powers of summons, entry onto premises, investigation, seizure, copying, questioning, subpoena and so forth.

  1. If you have been summoned to appear before the Investigating Director, you commit an offence in any of the following circumstances:
    • you fail to appear at the time and place specified in the summons;6
    • you fail to remain in attendance until excused from further attendance;7
    • you fail to produce a book, document or other object which you were summoned to produce;8
    • you refuse to be sworn or to make an affirmation after you have been asked by the Investigating Director to do so;9
    • having been sworn (or having made an affirmation) you fail to answer fully and to the best of your ability any question lawfully put to you;10
    • you give false evidence, knowing that evidence to be false, or not knowing or believing it to be true.11
  2. Any person who obstructs or hinders the Investigating Director, or any other person in the performance functions for the purposes of such an investigation, commits an offence.12

  3. If the Investigating Director, or any authorised person, enters your premises for the purposes of an investigation and asks you for information, or for an explanation, you commit an offence if:
    • you refuse or fail to do so;
    • you give an explanation or information which you know is false or misleading.13

B. The Prosecuting Authority computers

Let’s look at some definitions14 first:

  1. Any person who gains unauthorised access to:
    • any computer which belongs to, or is under the control of the NPA; or
    • any program or data held in such a computer; or
    • any program or data held in a computer to which (only certain, or all) members of the NPA have access in their capacity as members,19

    commits a criminal offence.20

  2. It is an offence to allow someone to have such unauthorised access.21

  3. It is an offence to cause any other person to gain such unauthorised access.22

  4. If you cause an NPA computer to perform a particular function, without authorisation, you commit an offence.23

  5. It is a crime to perform any act which causes an unauthorised modification of the contents of a NPA computer, if you have the intention to impair the reliability of data held in such computer, or the operation:
    • of that or any other computer; or
    • of any program in any computer; or
    • of the operating system of any computer.24
  6. It is also a crime to perform any act with an intention to prevent or hinder access to any program or data held in any computer.25

C. General

  1. It is a crime improperly to interfere with, hinder or obstruct the NPA or any of its members in the exercise or performance of powers, duties or functions.26

  2. It is a crime to take, assume, use or publish (in relation to any activity) any name, description, title or symbol which fraudulently indicates or is likely to infer that the activity is in terms of the Act, or is in any way connected with the NPA .27

  3. Any person who, without permission of the National Director, discloses:

    • any information which came to his knowledge in the performance of functions under the Act (or any other law);
    • the contents of any book or document or any other item in the possession of a prosecuting authority; or
    • the record of any evidence given at an investigation by an Investigating Director,

    commits a criminal offence.28 29

  1. This is a phrase common in the parlance of cross-examination in court, whether in a criminal or civil trial. Of course, it was made famous to the lay-public following the televised trial of Oscar Pistorius, but follows a rule of evidence that the factual version of one side has to be ‘put’ to a witness, relevantly giving evidence for the other side, for his comment. 

  2. As mentioned in the Introduction, criminal offences are also created by provincial and municipal legislation, as well as in regulations to various statutes. So what is to follow applies, actually, to any criminal offence. 

  3. It comes from the Latin: pro = on behalf of and sequi = to follow up on. 

  4. The NPA Act provides for investigators internal to the NPA. See sections 7, 26–29 of the Act, and A below. 

  5. Specified by the State President in proclamations published in the Government Gazette. See section 7(1). 

  6. Section 28(10)(a). 

  7. Section 28(10)(a). 

  8. Section 28(10)(b)(i). 

  9. Section 28(10)(b)(ii). 

  10. Section 28(10)(c)(i). 

  11. Section 28(10)(c)(ii). 

  12. Section 29(12)(a). 

  13. Section 29(12)(b). 

  14. See Section 40A(1) of the Act. 

  15. Section 40A(1)(a). 

  16. Section 40A(1)(b). 

  17. Section 40A(1)(c). 

  18. Section 40A(1)(d). 

  19. I refer to all these contemplated types of computer and program, compendiously, as an NPA computer. 

  20. Section 40A(2)(a). 

  21. Section 40A(2)(a). 

  22. Section 40A(2)(a). 

  23. Section 40A(2)(b). 

  24. Section 40A(2)(c). 

  25. Section 40A(2)(c). 

  26. Section 41(1) read with section 32(1)b. 

  27. Section 41(5). 

  28. Section 41(6). 

  29. Except if the disclosure is as required by the Act or by a court of law.