A comparative study of the exercise of prosecutorial discretion in South Africa, Australia, and the United States of America

Abstract

The quest to reduce criminality by effective prosecution has become the paramount role of prosecutors in criminal jurisdictions worldwide. As gatekeepers of the criminal justice system, prosecutors perform different roles intended to foster accountability and advance the rule of law. Among other aspects, prosecutors observe the concepts regulating plea negotiations and the rule against double criminality to achieve this objective. These concepts are promoted by the discretionary authority of prosecutors, depending on the domestic legislation/s advancing the exercise of prosecution. In other words, the success of prosecutorial discretion depends on the relevant domestic legislation advancing the rule of law in domestic systems. In the context of the current study, it is argued that, even though South Africa, the United States of America, and Australia share the Anglo-American prosecutorial model, they exhibit different prosecutorial characteristics influenced by their internal judicial mechanisms. In the case of South Africa, the National Prosecuting Authority (NPA) constitutes the central legislative authority promoting prosecutorial discretion. Despite the relevant legislative framework, the country’s prosecution regime cycle has been marred by resignations and/or dismissals of successive prosecutors from office. The consequence of this is reflected in the multiple challenges currently plaguing the South African criminal justice system. Broader academic debate holds that these pitfalls occur within the nexus of the constitutional and legislative framework of the NPA. This thesis assesses the NPA’s role regarding its core prosecution function. This research relies on content by a review of related literature using qualitative methodology to validate primary and secondary data. The thesis, by a critical analysis of the relevant constitutional jurisprudence, including case law, learned publications and related legislations such as the NPA Act 32 of 1998, contends that, although South Africa seems to have advanced in the jurisprudence of prosecutorial discretion, the discretionary authority of prosecutors in the exercise of prosecutorial responsibilities is still not guaranteed when compared to jurisdictions such as the US and Australia. It is recommended that the NPA Act be amended in conjunction with the relevant constitutional provisions to address the shortcomings plaguing prosecutorial discretion in South Africa.