National Prosecuting Authority Act, 1998

National Prosecuting Authority Act, 1998
Parliament of South Africa
  • Act to regulate matters incidental to the establishment by the Constitution of the Republic of South Africa, 1996, of a single national prosecuting authority; and to provide for matters connected therewith.
CitationAct No. 32 of 1998
Enacted byParliament of South Africa
Assented to24 June 1998
Commenced16 October 1998
Summary
Established the National Prosecuting Authority.
Status: In force

The National Prosecuting Authority Act, 1998 (Act No. 32 of 1998) is an act of the Parliament of South Africa which established the National Prosecuting Authority (NPA). The creation of the NPA was required by section 179 of the Constitution of South Africa, which came into force in February 1997.

Prior to the passage of the NPA Act, public prosecutions were under the direction of the attorneys-general, with a separate attorney-general appointed by the President for each division of the High Court. The offices of the attorneys-general were merged into a centralised National Prosecuting Authority headed by the National Director of Public Prosecutions, and the various attorneys-general became Directors of Public Prosecutions.

The NPA was established as a single national prosecuting authority in terms of section 179(1) of the Constitution of South Africa 1996, which provides as follows:

“(1) There is a single national prosecuting authority in the Republic, structured in terms of an Act of Parliament, and consisting of: a. a National Director of Public Prosecutions, who is the head of the prosecuting authority, and is appointed by the President, as head of the national executive; and b. Directors of Public Prosecutions and prosecutors as determined by an Act of Parliament. (2) The prosecuting authority has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings.”

One scholar has commented that “as a representative of the state, the NPA has a special role in our criminal justice system because it has the responsibility of enforcing criminal laws in South Africa by instituting criminal proceedings on behalf of the state.”[1] Although the head of the NPA, the National Director of Public Prosecutions (National Director), is appointed by the President as head of national executive and the NPA forms part of the executive, section 179(4) of the Constitution requires that “national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice”.[2] In its interpretation of section 179(4), the Constitutional Court of South Africa has said that “there is a constitutional guarantee of independence and any legislative or executive action inconsistent therewith would be subject to constitutional control.”[3]

  1. ^ Mtendeweka Mhango, Constitutional Eighteenth Amendment Bill: An Unnecessary Amendment to the South African Constitution? Statute Law Rev (2014) 35 (1): 19-34
  2. ^ Mhango page 19, citing section 179(4) of the Constitution of the Republic of South Africa 1996.
  3. ^ In re: Certification of the Constitution of the Republic of South Africa, 1996 1996 (10) BCLR 1253, 1273 (CC) para 146. Glenister v President of the Republic of South Africa and Others 2011 (7) BCLR 651 (CC) fn 109 (noting that section 179(4) does not mean that the NPA must be cut off from the political sphere)