Abstract
The previous Westminster criminal justice system entailed a different kind of separation of powers insofar as it concerns the role of state prosecutors. In the Westminster system prosecutors are part of the executive branch, whereas they were a split-off from the judiciary in constitutional states and function like a de facto second organ of the third branch of state power. Currently executive interference in state prosecutions often leads to pre-trial inequality. A further difficulty arises from the unconsidered manner in which the former royal prerogative of pardoning was retained in the Constitution of the Republic of South Africa, 1996. It used to be a royal veto of judicial sentences in the constitutional monarchy of the former Westminster model. Although the corresponding veto of parliamentary legislation by the head of state did not survive into modern times, the pardoning power has not been discontinued. Section 84(2)(j) thus causes an irreconcilable conflict with section 165(5) of the Constitution which guarantees the legally binding force of judicial decisions. It undermines the rule of law and leads to post-trial inequality in the execution of sentences. The parole system, which dates back to 1959, likewise allows the executive to overrule judicial sentences and is in conflict with section 165(5). The perpetuation of the status quo in criminal justice is in effect leading to a re-Westminstering of the constitutional state.
Highlights
L Wolf*South Africa adopted the constitutional state model by implementing the Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution) and subsequently the final Constitution of the Republic of South Africa, 1996 (Constitution)
Constitutional powers of the prosecuting authority in relation to judicial powers and whether or not the entering of a nolle prosequi in a prima facie case unconstitutionally blocks access to the courts. He did not elaborate on the presidential indemnity argument, but instead argued that the Democratic Alliance does not have locus standi to contest the dropping of corruption charges against Jacob Zuma, who was Deputy President when the first nolle prosequi was entered and the African National Congress (ANC)'s presidential candidate when the second nolle prosequi was entered
Since the constitutionality of parliamentary legislation which prescribes excessive sentences can be contested in the courts on the basis that all state action must be in proportion to the object pursued,[320] it is not clear why the rule of law should be sacrificed by allowing an executive president to overrule binding judicial sentences based on valid law and legal considerations of justice
Summary
South Africa adopted the constitutional state model by implementing the Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution) and subsequently the final Constitution of the Republic of South Africa, 1996 (Constitution). Director as foreseen by section 179(1)(a) and ministerial oversight under section 179(6) have led to the presumption that the prosecutors resort under the executive branch and perform administrative powers, whereas they are responsible for criminal justice Another problem relates to the prosecutors' powers to take nolle prosequi decisions in cases that would merit prosecution. This may impinge upon judicial powers, since such a decision is tantamount to a non-judicial acquittal Insofar as it concerns post-trial equal treatment with regard to the remission of sentence, the main source of difficulties is section 84(2)(j) of the Constitution. It will be asked if constitutional provisions that were certified by the Constitutional Court can be struck down on an ex post facto basis because they perpetuate the Westminster criminal justice system and undermine the constitutional state
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