Question No 606
Dr M G Oriani-Ambrosini Inkatha Freedom Party (IFP) to ask the Minister of Justice and Constitutional Development:
(1) Whether the National Prosecuting Authority (NPA) has adopted a policy on not prosecuting crimes when a victim of a crime has a civil action available; if so, what are the relevant details;
(2) How many times during the past five years for which information is available has the NPA (a) not prosecuted crime or (b) dropped a criminal charge on account of the victim having a civil action available to him/her/it in relation to the conduct which embodied the crime?
Reply:
(1) The National Prosecuting Authority (NPA) gives effect to the laws of the country and has a discretion with regard to how functions are performed, powers exercised and duties carried out. The decision to prosecute, or not, as the case may be, has to be taken with care, because it may have profound consequences for victims, witnesses, the accused and their families.
Prosecutors are under instruction that resources should not be wasted on pursuing inappropriate cases, but should be used to act vigorously in cases worthy of prosecution. In deciding whether or not to institute criminal proceedings against an accused, prosecutors assess whether there is a reasonable prospect of a successful prosecution. When evaluating evidence, prosecutors have to consider all relevant factors such as the strength of the state’s case, the admissibility of the available evidence, the credibility of the state witnesses, the reliability of the evidence, the availability of the evidence and the strength of the defence’s case.
Once a prosecutor is satisfied that there is sufficient evidence to provide a reasonable prospect of a conviction, a prosecution should normally follow, unless public interest demands otherwise. When considering whether or not it will be in the public interest to prosecute, prosecutors have to consider all relevant factors, including the nature and seriousness of the offence, the interests of the victim and broader community and the circumstances of the offender.
It follows from the above that there is no policy that a civil action prohibits prosecution. There are many cases on our court rolls where the victim also has a civil action available, for example, all assault cases. Normally when a decision has been, made not to prosecute a specific case that will be the end of the matter. However, there may be special reasons to review a particular case and restart the prosecution. These include an indication that the initial decision was clearly wrong and should not be allowed to stand, an instance where a case has not been proceeded with in order to allow the police to gather more evidence and a situation where a prosecution has not been proceeded with due to the lack of evidence, but where sufficient incriminating evidence has since come to light.
(2) The National Prosecuting Authority (NPA) does not keep a record of reasons why prosecutions were not instituted. If reasons are required in a specific case, they can be furnished upon request.
Issued by: Department of Justice and Constitutional Development
5 August 2009
