Prosecutions, on the amended prosecution policy and directives relating to
prosecution of criminal matters arising from conflicts of the past
24 January 2006
In his statement to Parliament and the Nation on the occasion of the Tabling
of the Report of the Truth and Reconciliation Commission on 15 April 2003 the
President of the Republic, when dealing with the issue of amnesty, made four
very important points regarding the future handling of cases arising from
conflicts of the past:
* In the first instance the President made it clear that there shall be no
general amnesty.
* Secondly, he pointed out that we have to deal with the reality that many
of the participants in the conflict of the past did not take part in the Truth
and Reconciliation Commission (TRC) process. However, we cannot resolve this
matter by setting up yet another amnesty process, which in effect would mean
suspending the constitutional rights of those who were at the receiving end of
gross human rights violations.
* Thirdly the President directed that any further processes should be left
in the hands of the National Prosecuting Authority (NPA), for it to pursue any
cases that, as is normal practice, it believes deserve prosecution and can be
prosecuted. In this regard he further pointed out that, as part of this process
and in the national interest, the NPA, working with our intelligence agencies,
will leave its doors open for those who are prepared to divulge information at
their disposal and to co-operate in unearthing the truth, for them to enter
into arrangements that are standard in the normal execution of justice, and
which are accommodated in our legislation.
* In the final instance the President indicated that in each case where any
legal arrangements are entered into between the National Director and
particular perpetrators as proposed, the involvement of the victims will be
crucial in determining the appropriate course of action.
Following the President's announcement, and realising the importance for the
NPA to deal with these matters on a uniform basis in terms of specifically
defined criteria, the NPA started a consultation process to determine uniform
Prosecuting Policy to deal with criminal matters arising from conflicts of the
past.
In the process, the NPA consulted with other law enforcement agencies,
relevant departments, the Minister of Justice and Constitutional Development
(Minister), the Directors of Public Prosecutions and Unit Heads within the
NPA.
These cases will be centralised in the Office of the National Director for
the following reasons:
* To ensure that there is consistency in decision-making.
* The complexities implicit in these cases.
* The Priority Crimes Litigation Unit (PCLU), which Unit is based within the
Office of the National Director, shall be responsible for overseeing the
investigations and instituting prosecutions. Furthermore, senior designated
officials of various departments and other components of the NPA will assist
the PCLU in the execution of its duties.
During the middle of 2005 a draft Amended Prosecution Policy was submitted
to the Minister for her approval as required by the provisions of the
Constitution and the NPA Act. The Amended Prosecution Policy was submitted to
Cabinet for its information and towards the end of last year the Policy was
tabled in Parliament by the National Director and the Minister. This amended
Prosecution Policy came into effect on 1 December 2005.
The Amended Prosecution Policy gives effect to the proposals of the
President. Some of the most important features of the Amended Prosecution
Policy are the following:
* It emphasises that Government did not intend to mandate the National
Director to, under the auspice of his or her own office, perpetuate the TRC
amnesty process. The existing legislation and normal process referred to by the
President, include the application of:
(a) Section 204 of the Criminal Procedure Act, 1977, in terms of which a
person who is guilty of criminal conduct may testify on behalf of the State
against his or her co-conspirators and if the Court trying the matter finds
that he or she testified in a satisfactory manner, grant him or her indemnity
from prosecution;
(b) Section 105A of the Criminal Procedure Act, 1977, which makes provision for
a person who has committed a criminal offence to enter into a mutually
acceptable guilty plea and sentence agreement with the NPA
(c) The processes determined and set out in the current Prosecution Policy, and
the fact that such processes would not indemnify a person from private
prosecution or civil liability. Therefore, if someone feels aggrieved regarding
the process followed by the NPA, it can be tested in court.
* The amended policy provides for the procedural arrangements that must be
adhered to in the prosecution process in respect of crimes arising from
conflicts of the past.
* Furthermore, the policy sets out the criteria governing the decision to
prosecute or not to prosecute in cases relating to conflicts of the past. In
the first instance the alleged offence must have been committed on or before 11
May 1994. Secondly, the NPA must ascertain whether a prosecution can be
instituted on the strength of adequate evidence after applying the general
criteria set out in paragraph 4 of the said Prosecuting Policy of the NPA. If
the answers to these questions are in the affirmative, the further criteria set
out in paragraph C3(a) to (j) must be applied. These criteria are in line with
the criteria followed in the TRC process as well as the general criteria laid
down for the prosecuting authority.
Issued by: National Director of Public Prosecutions
24 January 2006
