If a criminal case is botched by the police or prosecutors, victims of rape, murder and other crimes get deprived of justice.
The police and the National Prosecuting Authority (NPA) play a key role in ensuring the justice system works and without a collaboration between the two state organs, not much can be done by the courts to deliver justice particularly in criminal cases.
Newly appointed NPA head Andy Mothibi deems the collaboration with police to be vital to ensure the NPA delivers on its mandate.
Mothibi outlined his vision for the NPA under his leadership on Thursday and said he had met with police national commissioner Gen Fannie Masemola to “align the NPA and South African Police Service (SAPS) strategies.
“An aligned strategy will, among others, enable collaboration between the SAPS and NPA, identification of cases, prosecutor-guided investigations, asset recoveries, enrolment of cases and effective prosecution,” he said.
The strengthening of forces by the NPA and police takes place as the justice cluster is under scrutiny amid the Madlanga commission of inquiry investigations revealing cops’ close relationship with individuals facing criminal accusations.
University of Pretoria law lecture Llewelyn Curlewis, speaking to Business Day, said without solid police investigations, the NPA’s prosecutions fail in criminal cases.
“Without the police and the people that assist in getting together the dockets and investigations, the prosecutor cannot do anything in court. Prosecutors need the police for successful prosecution,” he said.
Mothibi will have about two years to implement his vision for the NPA before reaching retirement age. The NPA Act states the national director of public prosecutions (NDPP) has to vacate office at the age of 65.
Mothibi’s two years could limit him in implementing and seeing the success of his vision for the NPA, Curlewis said.
Mothibi listed corruption and money-laundering prosecutions to be among the NPA’s priorities.
“I do not think he is going to make any headway in time. There is not enough time. The average prosecution of white-collar crimes, money laundering takes usually more than two years to finalise in our specialised commercial crime courts,” Curlewis said.
“He [Mothibi] will not see the success of his interventions even when he wishes to do so. Two years is not enough.”
Curlewis applauded Mothibi’s plan to fill up the 17% vacancies in the NPA.
“That is a good thing. One would like to see more prosecutors available to assist in prosecutions.”
Curlewis said the NPA also needed to prioritise murder and rape cases.
University of Pretoria law professor Hennie Strydom described Mothibi’s prioritisation of corruption and money laundering as logical.
“They rank as serious threats to our constitutional and legal order and discourage foreign investments,” Strydom said
Strydom viewed Mothibi’s two-year tenure as irrelevant to the implementation of the vision.
“The prioritisation is an institutional objective based on an objective reality at this point in time and is not linked to the individual’s subjective preferences.”
Mothibi has highlighted collaboration with stakeholders as vital and allocated a team of prosecutors to work with a police task team set up to investigate cases from the Madlanga commission of inquiry into state capture.
The work of the team will be imperative in ensuring resources invested in the commission result in criminal prosecutions.
The importance of continuing with the implementation of prosecutor-guided investigations is vital for criminal cases as cases sometimes take years to be enrolled or or are struck off the court roll due to insufficient evidence.
Suspects walk free and when that happens victims of crime reel in pain and a stain is left on the justice system.
One case in which the NPA and police clashed over investigations and readiness for prosecution was a rape case before the high court in Johannesburg.
Gauteng high court judge Stuart Wilson in 2024 delivered a judgment in the case of a mentally challenged young lady who was raped at the age of 13 in August 2016 but still waited ― eight years later — for DNA results from a rape kit taken on the day of the rape.
Samples were taken six months after the rape from her alleged rapist after his arrest.
The accused, Thabo Lovers Dimaza, legally challenged the minister of police and the NDPP to have his arrest on February 20 2017 ruled unlawful.
Wilson, in his judgment, expressed dismay at the state’s failure to finalise DNA reports in the case — eight years after having both samples.
Dimaza never underwent trial because the state had not obtained the DNA analysis report of samples taken from Dimaza and from the victim.
In this particular case the NPA declined to prosecute without the DNA. It remains unclear what happened to the DNA results.
Dimaza’s case was never decided on the merits and he cannot clear his name or be jailed because there was no trial without the DNA.
“Though the minister plainly had sufficient reason to arrest Dimaza, and though Dimaza could have been prosecuted on the evidence available to the minister at the point of his arrest, the NDPP was entitled to decline to press the case against Dimaza without the benefit of the DNA evidence. But the state’s failure to produce that evidence has left this case in limbo for eight years,” Wilson said.
“The delay in obtaining the DNA evidence and in either pursuing or finally discontinuing Dimaza’s prosecution severely undermines public confidence in the justice system. It also leaves A (victim) and her family with little hope that A’s assailant, whomever that might be, will ultimately be held accountable for the appalling crime that triggered these proceedings.”
Clashes between the police and NPA are costly to victims.
Police tend to blame prosecutors for delaying prosecutions and for not fully considering the strength of evidence and prosecutors blame cops for bringing incomplete investigations for court enrolment, running the risk of having the matter struck off the roll. Collaboration between the NPA and police is vital for justice.
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