For one thing, the fact that NPA performance is measured so heavily on conviction rate provides a perverse incentive for prosecutors not to take on cases where there are limited prospects of succeeding.
“The NPA is not prosecuting cases even with an over 80% chance of success,” Redpath said.
It is particularly easy for prosecutors to decline to take on certain cases because no authorisation is required for this decision. In a paper recently published by Muntingh and Redpath, they point out that permission to prosecute certain crimes has to be obtained from senior prosecutors – but withdrawing cases requires no such permission.
“Current prosecution policy directives set by the NDPP [National Director of Public Prosecutions] requires that prosecutors obtain approval from senior prosecutors for certain more serious prosecutions of certain categories of officials, primarily senior officials working in the criminal justice system, including law enforcement, prosecutors, magistrates and police,” they write.
The fact that such cases can be dropped without authorisation “makes it much easier to decide not to prosecute rather than to prosecute”.
The researchers suggest that it should become a requirement for the NDPP to report to Parliament on all decisions taken to prosecute or not prosecute state officials.
Another worrying aspect is the growing number of cases which the NPA is reporting as being resolved via “informal mediation”.