n Tydskrif vir die Suid-Afrikaanse Reg - Prosecuting without fear, favour or prejudice

Volume 2009, Issue 3
  • ISSN : 0257-7747
  • E-ISSN: 1996-2207



The national prosecuting authority occasionally makes use of legal practitioners in private practice to prosecute matters on behalf of the state. Section 38 of the National Prosecuting Authority Act 32 of 1998 makes provision for a person with suitable qualifications and experience to be engaged as a prosecutor in specific cases. The prosecution conducted by a person engaged in terms of section 38 of the National Prosecuting Authority Act has to be distinguished from a private prosecution in terms of section 7 of the Criminal Procedure Act 51 of 1977. It appears that section 38 is applied in respect of cases where staff attached to the prosecuting authority lack the necessary expertise or skills to conduct the prosecution in a specific case or where staff shortages necessitate such an appointment. Private prosecutions, on the other hand, may only be instituted upon the issuing by a director of public prosecutions of a certificate and by the categories of private persons as specified in section 7(1)() to () of the Criminal Procedure Act. The formalities surrounding the appointment of a person engaged in terms of section 38, the requirements for the appointment of such a person as well as the impact of section 38(3) on the fair trial rights of an accused person recently received the attention of the courts in two unreported judgments.

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