Advocate Mokoted Mpshe (shame Helen Zille had such a torrid time trying to say the surname and keep a straight face - wait her face is straight, anyway) is the acting National Director of Public Prosecution; his predecessor having been removed by (a sort of acting) President Motlanthe (another name Helen Zille struggles with) for not being fit to hold the office of the National Director of Public Prosecutions.
By all accounts the job of an NDPP is clearly a tough one but also one that is very important, which may suggest that we should have our brightest and bravest on point. It is so important it is created and regulated by an Act of Parliament. Now, in terms of this Act South Africa has one prosecution authority headed by the NDPP. All prosecutions from Orania to Soweto, are carried out under the authority of the NDPP through the delegates of the NDPP. Well that is the way I think it is anyways, Orania court may be a bit of a stretch but we will consider that in a future post.
In carrying out his job the NDPP decides all manner of things including whether to prosecute or not to prosecute. This decision is made by the prosecution authority daily in various courts of this vast country. The prosecution authority normally considers the charge, the facts gathered by the investigating officer, the evidence available and the availability of witnesses. Taking all of these together, the prosecution authority may decline to prosecute or may (as it does more often than not) decide to continue with the prosecution.
By all accounts the job of an NDPP is clearly a tough one but also one that is very important, which may suggest that we should have our brightest and bravest on point. It is so important it is created and regulated by an Act of Parliament. Now, in terms of this Act South Africa has one prosecution authority headed by the NDPP. All prosecutions from Orania to Soweto, are carried out under the authority of the NDPP through the delegates of the NDPP. Well that is the way I think it is anyways, Orania court may be a bit of a stretch but we will consider that in a future post.
In carrying out his job the NDPP decides all manner of things including whether to prosecute or not to prosecute. This decision is made by the prosecution authority daily in various courts of this vast country. The prosecution authority normally considers the charge, the facts gathered by the investigating officer, the evidence available and the availability of witnesses. Taking all of these together, the prosecution authority may decline to prosecute or may (as it does more often than not) decide to continue with the prosecution.
Normally, the prosecution authority will decline to prosecute because in its view the case cannot be prosecuted successfully. Like the day I was stopped by the coppers on my way back from a bachelor party. I was pulled over on suspicion of driving under the influence - at least that is what I was told by the police. The police then got into an argument about who was going to drive my car and who was going to take me for blood tests. This took so long, I fell asleep in the back of the police van, I think. I woke up in the cell, spend the night in the cell (or was it the morning?). The next day around mid-day, I was taken out of the holding cells at court and told to go home because the control prosecutor is not going to prosecute. Apparently there was something to do with the blood tests. As I said this whole "decline to prosecute" thing is quite normal.
Another normal occurence in the criminal justice system is the making of representation to the prosecution authority with the view of persuading the authority not to prosecute a case. Accused persons exercise this power all the time - mostly unsuccessfully.
Now what stopped Advocate Mpshe from just saying: "having considered the representations made on behalf of the accused, we are of the view that the matter cannot be successfully prosecuted and therefore we decline to prosecute". Well it simply would have been untrue. As untrue as the matters that he took into consideration in coming to his conclusion to decline to prosecute are irrelevant. What are we to make of all this?
Advocate Mpshe has either misconducted himself in relation to his duties as the NDPP or is not fit to hold the office of the NDPP. Either way, the president of the republic should remove him from that office. I would just like to know that when next I make representations to the prosecution authority, the authority will apply the correct test and consider matters that are relevant to the decision in question.
Another normal occurence in the criminal justice system is the making of representation to the prosecution authority with the view of persuading the authority not to prosecute a case. Accused persons exercise this power all the time - mostly unsuccessfully.
Now what stopped Advocate Mpshe from just saying: "having considered the representations made on behalf of the accused, we are of the view that the matter cannot be successfully prosecuted and therefore we decline to prosecute". Well it simply would have been untrue. As untrue as the matters that he took into consideration in coming to his conclusion to decline to prosecute are irrelevant. What are we to make of all this?
Advocate Mpshe has either misconducted himself in relation to his duties as the NDPP or is not fit to hold the office of the NDPP. Either way, the president of the republic should remove him from that office. I would just like to know that when next I make representations to the prosecution authority, the authority will apply the correct test and consider matters that are relevant to the decision in question.
This, like the matter of the Judicial Services Commission and Judge Hlophe achieves nothing but to weaken our justice system. The only place all South Africans should be confident they will be treated fairly. The only place where each South African should be safe.
That among others is what I believe happened . . .
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