PROSECUTION POLICY I' AND DIRECTIVES RELATING TO PROSECUTION OF CRIMINAL MATTERS ARISING FROM CONFLICTS OF THE PAST
1.1 In terms of section 179(5)(a) of the Constitution, the National Director of Public Prosecutions (National Director) must, with the concurrence of the Minister for Justice and Constitutional Development and after consulting the Directors of Public Prosecutions, determine prosecution policy which must be observed in the prosecution process.
1.2 Furthermore, section 179( 5)(b) of the Constitution and section 21 (l )(b) of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998) (NP A Act), provide for the issuing of policy directives by the National Director. In terms of section 21 (2) of the NP A Act, such prosecution policy or any amendments thereto must be included in the NPA's Annual Report referred to in section 35(2)(a) of the NP A Act. In terms of the latter section, the Minister of Justice must table the NP A's Annual Report in Parliament in June each year.
1.3 During 2005, the NP A developed prosecuting policy and policy directives relating to the prosecution of criminal matters arising from conflicts of the past. As required by the Constitution and the NP A Act, the mentioned prosecution policy and policy directives have been developed with the concurrence of the Minister of Justice and after consultation with the Directors of Public Prosecutions. The amended prosecution policy came into operation on 1 December 2005.
1.4 Although the NP A Act requires the National Director to include any amendments to the Prosecutions Policy in the Annual Report in June, the National Director and the Minister of Justice held the view that it was of National and public interest to take Parliament on board and to inform Parliament and the public about these amendments. Therefore, already towards the end of 2005, the amended Prosecution Policy containing the prosecution policy and policy directives relating to the prosecution of criminal matters arising from conflicts of the past was tabled in Parliament.
1.5 During January 2006 the NP A and the Department briefed the National Assembly regarding the amendments to the Prosecution Policy.
2. BACKGROUND INFORMATION
2.1 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, when dealing with the "issue of amnesty" made four very important points regarding the future handling of cases arising from conflicts of the past:
2.2 Following the President's announcement, and realising the importance for the NP A to deal with these matters on a uniform basis in terms of specifically defined criteria, the NP A started a consultation process to determine uniform Prosecution Policy to deal with criminal matters arising from conflicts of the past. In the process, the NP A consulted with the Minister of Justice, the Directors of Public Prosecutions and Unit Heads within the NP A.
3. PROSECUTION POLICY
3.1 It was decided to centralise all these case in the Office of the National Director for the following reasons:
(a) To ensure that there is consistency in decision-making.
(b) The complexities implicit therein.
(c) The Priority Crimes Litigation Unit (PCLU), which Unit is based in 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 NP A must assist the PCLU in the execution of its duties. Since these officials are based in Pretoria, it is desirable that the cases be centralised in the Office of the National Director.
3.2 The Prosecution Policy is amended by the insertion of a new paragraph 8A. In terms of this amendment the National Director may supplement or amend the Prosecution Policy so as to determine prosecutorial policy and directives in respect of specific matters, for example, in respect of new legislation and matters of national interest. In accordance with this amendment, the National Director determined the criteria in Appendix A, relating to the prosecution of cases arising from conflicts of the past and which were committed before 11 May 1994.
3.3 Appendix A consists of three parts, namely, an introduction part (par A); the procedural arrangements which must be adhered to in the prosecution process in respect of crimes arising from conflicts of the past (par B); and the criteria governing the decision to prosecute or not to prosecute in cases relating to conflicts of the past (par C).
3.4 Paragraph A1 sketches the background and motivation for the amended Policy and guidelines. Paragraph A2 sets out the various factors to be taken into account in developing and applying the prosecuting policy, directives and guidelines (see subparagraphs (a) to (l). Paragraph A3 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.
3.5 The existing legislation and normal process referred to by the President, include the application of-
3.6 Paragraphs Al to 15 provide for the procedural arrangements which must be adhered to in the prosecution process in respect of crimes arising from conflicts of the past. In summary the following process must be followed:
(a) A person who faces possible prosecution and who wishes to enter into arrangements with the NP A, must submit a written sworn affidavit or solemn affirmation to the National Director containing such representations (par 1).
(b) The National Director must confirm receipt of the affidavit or affirmation and may request further particulars by way of a written sworn affidavit or solemn affirmation from the Applicant. The Applicant may also mero moto submit a further written sworn affidavit or solemn affirmation to the National Director containing representations (Par 2).
(c) All representations must contain a full disclosure of all the facts, factors or circumstances surrounding the commission of the alleged offence, including all information which may uncover any network, person or thing, which posed a threat to our security at any stage or may pose a threat to our current security (par 3).
(d) The PCLU in the Office of the NDPP is responsible for overseeing investigations and instituting prosecutions in all such matters (par 4).
(e) The regional DPPs must refer all prosecutions arising from the conflicts of the past, which were committed before 11 May 1994, and with which they are or may be seized, immediately to the Office of the National Director (par 5).
(f) The PCLU shall be assisted in the execution of its duties by a senior designated official of the National Intelligence Agency, the Detective Division of the South African Police Service, the Department of Justice & Constitutional Development and the Directorate of Special Operations (par 6).
(g) The National Director must approve all decisions to continue an investigation or prosecution or not, or to prosecute or not to prosecute (par 7). The National Director must also be consulted in respect of and approve any offer to a perpetrator relating to the bestowing of the status of a section 204 witness and all section 105A plea and sentence agreements (par 8).
(h) The National Director may obtain the views of any private or public person or institution, our intelligence agencies and the Commissioner of the South African Police Service, and must obtain the views of any victims, as far as is reasonably possible, before arriving at a decision (par 9).
(i) A decision of the National Director not to prosecute and the reasons for that decision must be made public and in accordance with section 179(6) of the Constitution, the National Director must inform the Minister for Justice & Constitutional Development of all decisions taken or intended to be taken in respect of this prosecuting policy relating to conflicts of the past (par 10 and 11).
3.7 Paragraphs C1 to C3 set 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 and secondly the NP A 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 NP A. 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.