The establishment of the NPA was itself contentious.
2 From the beginning of negotiations in the early 1990s about South Africa's future political dispensation, control over criminal prosecutions and, related, the relationship between a new prosecution service and the political executive were contested.
3 It is necessary to provide some background to the debate, as the arguably ambiguous constitutional provisions dealing with the NPA would come back to haunt the organisation as it experienced, and, at times, succumbed to, political interference.
4
Since Union in 1910, South Africa's prosecutors were, to varying degrees, subjected to executive interference in their affairs.
5 Between 1926 and 1992, successive ministers of justice effectively controlled the attorneys-general, the country's most senior prosecutors, whose powers extended largely along provincial lines.
6
In 1992, the Attorney-General Act
7 sought to ensure that attorneys-general functioned independently of the executive. In terms of the Act, the authority to institute prosecutions became the sole responsibility of the attorneys-general and their delegates, free of ministerial interference.
8 Post-1994 the African National Congress (ANC), as ruling party, viewed the 1992 Act with suspicion. It regarded the Act as a political ploy by the outgoing National Party government to entrench the position of the attorneys-general, who were representative of the old order.
9
The ANC successfully pushed for a constitutional provision to establish a
national prosecuting authority for South Africa, whose head would be appointed by the president.
10 The constitutionality of the provision was challenged by a number of provincial attorneys-general at the time, on the grounds that it impinged on the separation of powers between the legislature, executive and judiciary.
11 The Constitutional Court rejected this objection, arguing that the prosecuting authority is not part of the judiciary, and that the appointment of its head by the president does not in itself contravene the doctrine of the separation of powers.
12
Fears about the NPA's independence from political interference revolved around two related concerns, with the first being the power of the executive - that of the minister of justice in particular - to influence and interfere with the function of the country's chief prosecutor, the National Director of Public Prosecutions (NDPP).
13 Second, the centralised and hierarchical nature of the NPA endowed the NDPP with considerable power over the provincial Directors of Public Prosecutions (DPPs) and, by implication, all prosecutors in the country.
14 For example, the NDPP has the authority to intervene in the prosecution process when policy directives are not complied with,
15 and to
review a decision to prosecute or not prosecute, after 'consulting' the relevant DPPs (i.e. the NDPP can overrule his deputies, provided consultation has taken place).
16
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