National Director of Public Prosecutions (NDPP) Advocate Shamila Batohi says the National Prosecuting Authority’s constitutional independence must be “jealously guarded,” warning that any interference with prosecutorial decision-making strikes at the heart of South Africa’s democracy.

Botohi is testifying in the Nkabinde Inquiry, where her evidence is led by Advocate David Mahlomanyane.

Batohi explained that the NPA’s powers, particularly those of Director of Public Prosecutions, extend to prosecuting appeals in any court, but always within the bounds of their jurisdiction and the Constitution.

She said prosecutors carry a constitutional mandate to prosecute crime, adding that Section 179 of the Constitution underscores the “fundamental importance” of the state’s duty to prosecute.

She told the inquiry that the NPA sits “at the centre of any functioning democracy,” echoing recent Constitutional Court pronouncements. Prosecutors, she said, serve as “gatekeepers” of the criminal justice system and represent society’s interests by presenting cases in an honest and even-handed manner.

Batohi repeated a passage from her affidavit describing the responsibility prosecutors hold: they must “seek justice, do justice, protect the innocent and charge the guilty.”

She emphasised that the integrity of the system “is hugely dependent on the integrity of every single person who works within that system,” noting that prosecutorial decisions affect victims, witnesses, families, law enforcement and the public.

Batohi said the discretion prosecutors hold over whether to initiate or discontinue a prosecution gives them “more control over an individual’s liberty and reputation than any other public official,” but she agreed with the chairperson, Advocate Elizabeth Nkabinde, that this power must always be read alongside the prosecutor’s duty to protect the innocent.

She stressed that prosecutors must help the court reach a just result, adding that “it is not a prosecutor’s function to seek a conviction at all costs.”

Their constitutional duty, she said, is not to use false evidence or suppress evidence favourable to an accused.

She warned that prosecutors may impede the truth-finding process by misrepresenting facts or presenting false evidence.

“Where prosecution is used for ulterior purposes, this breaches the principle of legality,” she said, explaining that any misuse of constitutional or statutory powers falls outside the purpose for which those powers were granted.

On the right to a fair trial, Batohi said a wrongful conviction has severe consequences for dignity and liberty, noting that even though such cases are rare, “every single case where an innocent person is convicted is a case too many.”

She stressed that prosecutors must always act openly and honestly, present evidence favourable to the accused and recognise the rights of both victims and the accused.

Turning to the independence and impartiality of the NPA, Batohi said functional independence means prosecutors must perform their duties without “any form of interference, hindrance or obstruction.”

She referred to the NPA’s Code of Conduct and the UN Guidelines on the Role of Prosecutors, saying members of the NPA must act “without fear, favour or prejudice” and distinguish public interest from partisan or media pressure.

She said prosecutors must act objectively, consider all relevant circumstances and ensure that inquiries into evidence are conducted, whether they assist or disadvantage an accused.

Batohi clarified that although prosecutors are public servants, they are appointed under the NPA Act, not the Public Service Act, meaning their independence is legally protected.

Presidential appointees such as the NDPP are subject to separate disciplinary processes, while non-presidential appointees follow public service disciplinary procedures, she said.

Addressing the minister’s role, she read Section 33 of the NPA Act into the record, noting that the Minister of Justice may request reports or reasons for decisions but “cannot tell or dictate to the prosecuting authority what prosecutorial decisions need to be taken.”

She said this distinction is critical because the NPA, though located within the Justice portfolio, is a constitutional body with its own independent mandate.

Batohi said the independence of prosecutors must be protected against pressure from the executive, business, civil society or the media. Although she acknowledged the importance of investigative journalism, she noted that the premature publication of sensitive material can, in some instances, “amount to an obstruction” of the NPA’s work.

The chairperson cautioned that this issue was delicate and should not be pursued further for the purposes of the inquiry.

Batohi stressed that interference in NPA work is a criminal offence under the NPA Act, highlighting  the constitutional guarantee of independence.

She warned that a weakened or manipulated prosecuting authority allows powerful individuals to evade accountability, quoting the Constitutional Court’s warning that “with a malleable, corrupt or dysfunctional prosecuting authority, many criminals, especially those holding positions of influence, will rarely, if ever, answer for their criminal deeds.”

hope.ntanzi@iol.co.za

IOL Politics 

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