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.
[Preamble substituted by s. 1 of Act 61 of 2000 and amended by s. 14 of Act 56 of 2008.
[Index inserted by s. 21 of Act 61 of 2000.
19A to 19C inclusive.
Ss. 19A to 19C inclusive inserted by s. 8 of Act 61 of 2000 and repealed by s.
29 Entering upon premises by Investigating Director 30 and 31 [Ss. 30 and 31 substituted by s. 14 of Act 61 of 2000 and repealed by s. 9 of Act 56 of 2008.
[S. 43A substituted by s. 13 of Act 56 of 2008.
'Directorate of Special Operations' [Definition of 'Directorate of Special Operations' inserted by s. 2 (a) of Act 61 of 2000 and deleted by s. 1 (a) of Act 56 of 2008.
'head of an Investigating Directorate' means an Investigating Director referred to in section 7 (3) (b) ; [Definition of 'head of an Investigating Directorate' inserted by s. 2 (a) of Act 61 of 2000 and substituted by s. 1 (b) of Act 56 of 2008.
Definition of 'Investigating Director' substituted by s. 2 (b) of Act 61 of 2000 and by s.
of Act 56 of 2008.
'Investigating Directorate' means an Investigating Directorate established by or in terms of section 7; [Definition of 'Investigating Directorate' substituted by s. 2 (b) of Act 61 of 2000.
'investigation' in Chapter 5, means an investigation contemplated in section 28 (1); [Definition of 'investigation' inserted by s. 2 (c) of Act 61 of 2000.
'special investigator' [Definition of 'special investigator' inserted by s. 2 (d) of Act 61 of 2000 and deleted by s. 1 (d) of Act 56 of 2008.
[Definition of 'specified offence' inserted by s. 2 (d) of Act 61 of 2000 and substituted by s. 1 (e) of Act 56 of 2008.
There is a single national prosecuting authority established in terms of section 179 of the Constitution , as determined in this Act.
the offices of the prosecuting authority at the High Courts, established by section 6 (1).
Deputy Directors ; and prosecutors.
There is hereby established the National Office of the prosecuting authority , to be known as the Office of the National Director of Public Prosecutions.
(d A) [Para. (d A) inserted by s. 3 of Act 61 of 2000 and deleted by s. 2 of Act 56 of 2008.
members of the administrative staff of the Office.
The seat of the Office of the National Director shall be determined by the President.
There is hereby established an Office for the prosecuting authority at the seat of each High Court in the Republic.
persons contemplated in section 38 (1); and the administrative staff of the Office.
Ifa Deputy Director is appointed as the head of an Office established by subsection (1), he or she shall exercise his or her functions subject to the control and directions of a Director designated in writing by the National Director.
The President may, by proclamation in the Gazette , establish one or more Investigating Directorates in the Office of the National Director , in respect of such offences or criminal or unlawful activities as set out in the proclamation.
may at any time be amended or rescinded by the President on the recommendation of the Minister , the Cabinet member responsible for policing and the National Director ; and must be submitted to Parliament before publication in the Gazette.
The head of an Investigating Directorate, shall be an Investigating Director , and shall perform the powers, duties and functions of the Investigating Directorate concerned subject to the control and directions of the National Director.
persons in the service of any public or other body who are by arrangement with the body concerned seconded to the service of the Investigating Directorate ; and any other person whose services are obtained by the head of the Investigating Directorate , and the persons referred to in subparagraphs (i) to (v) shall perform their powers, duties and functions subject to the control and direction of the head of the Investigating Directorate concerned.
any person or body requested by the head of an Investigating Directorate in writing to do so, shall from time to time, after consultation with the head of an Investigating Directorate , furnish him or her with a list of the names of persons, in the employ or under the control of that person or body, who are fit and available to assist the head of that Investigating Directorate as contemplated in the said subparagraph (iv) or (v), as the case may be; and such a person or body shall, at the request of, and after consultation with, the head of the Investigating Directorate concerned, designate a person or persons mentioned in the list concerned so to assist the head of the Investigating Directorate.
[S. 7 substituted by s. 4 of Act 61 of 2000 and by s. 3 of Act 56 of 2008.
The need for the prosecuting authority to reflect broadly the racial and gender composition of South Africa must be considered when members of the prosecuting authority are appointed.
possess legal qualifications that would entitle him or her to practise in all courts in the Republic ; and be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned.
Any person to be appointed as the National Director must be a South African citizen. [Date of commencement of s. 9: 1 August 1998.
The President must, in accordance with section 179 of the Constitution , appoint the National Director. [Date of commencement of s. 10: 1 August 1998.
The President may, after consultation with the Minister and the National Director, appoint not more than four persons, as Deputy National Directors of Public Prosecutions. [Sub-s. (1) substituted by s. 5 of Act 61 of 2000.
Whenever the National Director is absent or unable to perform his or her functions, the National Director may appoint any Deputy National Director as acting National Director.
Whenever the office of National Director is vacant, or the National Director is for any reason unable to make the appointment contemplated in paragraph (a) , the President may, after consultation with the Minister , appoint any Deputy National Director as acting National Director.
Whenever a Deputy National Director is absent or unable to perform his or her functions, or an office of Deputy National Director is vacant, the National Director may, in consultation with the Minister, designate any other Deputy National Director or any Director to act as such Deputy National Director.
The National Director shall hold office for a non-renewable term of 10 years, but must vacate his or her office on attaining the age of 65 years.
A Deputy National Director shall vacate his or her office at the age of 65.
If the National Director or a Deputy National Director attains the age of 65 years after the first day of any month, he or she shall be deemed to attain that age on the first day of the next succeeding month.
the National Director or Deputy National Director wishes to continue to serve in such office; and the mental and physical health of the person concerned enable him or her so to continue, the President may from time to time direct that he or she be so retained, but not for a period which exceeds, or periods which in the aggregate exceed, two years: Provided that a National Director' s term of office shall not exceed 10 years.
The National Director or a Deputy National Director shall not be suspended or removed from office except in accordance with the provisions of subsections (6), (7) and (8).
on account thereof that he or she is no longer a fit and proper person to hold the office concerned.
The removal of the National Director or a Deputy National Director , the reason therefor and the representations of the National Director or Deputy National Director (if any) shall be communicated by message to Parliament within 14 days after such removal if Parliament is then in session or, if Parliament is not then in session, within 14 days after the commencement of its next ensuing session.
Parliament shall, within 30 days after the message referred to in paragraph (b) has been tabled in Parliament, or as soon thereafter as is reasonably possible, pass a resolution as to whether or not the restoration to his or her office of the National Director or Deputy National Director so removed, is recommended.
The President shall restore the National Director or Deputy National Director to his or her office if Parliament so resolves.
The National Director or a Deputy National Director provisionally suspended from office shall receive, for the duration of such suspension, no salary or such salary as may be determined by the President.
The President shall also remove the National Director or a Deputy National Director from office if an address from each of the respective Houses of Parliament in the same session praying for such removal on any of the grounds referred to in subsection (6) (a) , is presented to the President.
on account of continued ill-health; or for any other reason which the President deems sufficient.
The request in terms of paragraph (a) (ii) shall be addressed to the President at least six calendar months prior to the date on which he or she wishes to vacate his or her office, unless the President grants a shorter period in a specific case.
vacates his or her office in terms of paragraph (a) (i), he or she shall be entitled to such pension as he or she would have been entitled to under the pension law applicable to him or her if his or her services had been terminated on the ground of continued ill-health occasioned without him or her being instrumental thereto; or vacates his or her office in terms of paragraph (a) (ii), he or she shall be deemed to have been retired in terms of section 16 (4) of the Public Service Act , and he or she shall be entitled to such pension as he or she would have been entitled to under the pension law applicable to him or her if he or she had been so retired.
If the National Director or a Deputy National Director , immediately prior to his or her appointment as such, was an officer or employee in the public service, and is appointed under an Act of Parliament with his or her consent to an office to which the provisions of this Act or the Public Service Act do not apply, he or she shall, as from the date on which he or she is so appointed, cease to be the National Director , or a Deputy National Director and if at that date he or she has not reached the age at which he or she would in terms of the Public Service Act have had the right to retire, he or she shall be deemed to have retired on that date and shall, subject to the said provisions, be entitled to such pension as he or she would have been entitled to under the pension law applicable to him or her had he or she been compelled to retire from the public service owing to the abolition of his or her post.
[Date of commencement of s. 12: 1 August 1998.
[Para. (a A) inserted by s. 6 (a) of Act 61 of 2000 and deleted by s. 4 of Act 56 of 2008.
[Para. (b) substituted by s. 6 (b) of Act 61 of 2000.
may appoint one or more Directors of Public Prosecutions (hereinafter referred to as Special Directors) to exercise certain powers, carry out certain duties and perform certain functions conferred or imposed on or assigned to him or her by the President by proclamation in the Gazette.
If a vacancy occurs in the office of a Director the President shall, subject to section 9, as soon as possible, appoint another person to that office.
The Minister may from time to time, but subject to the laws governing the public service and after consultation with the National Director , from the ranks of the Deputy Directors or persons who qualify to be appointed as Deputy Director as contemplated in section 15 (2), appoint an acting Director to discharge the duties of a Director whenever the Director concerned is for any reason unable to perform the duties of his or her office, or while the appointment of a person to the office of Director is pending.
Subject to subsection (2), a Director shall vacate his or her office on attaining the age of 65 years.
A Special Director may be appointed for such fixed term as the President may determine at the time of such appointment, and the President may from time to time extend such term.
The provisions of section 12 (3), (4), (6), (7), (8) and (9), in respect of the vacation of office and discharge of the National Director , shall apply, with the necessary changes, with regard to the vacation of office and discharge of a Director.
has the right to appear in a High Court as contemplated in sections 2 and 3 (4) of the Right of Appearance in Courts Act, 1995 (Act 62 of 1995); and possesses such experience as, in the opinion of the Minister , renders him or her suitable for appointment as a Deputy Director.
If a vacancy occurs in the office of a Deputy Director , the Minister shall, after consultation with the National Director , as soon as possible appoint another person to that office.
in respect of the Office of the National Director appoint one or more Deputy Directors of Public Prosecutions to exercise certain powers, carry out certain duties and perform certain functions conferred or imposed on or assigned to him or her by the National Director.
[Sub-s. (1) substituted by s. 7 of Act 61 of 2000.
Prosecutors shall be appointed on the recommendation of the National Director or a member of the prosecuting authority designated for that purpose by the National Director , and subject to the laws governing the public service.
lower courts in the Republic.
The Minister may from time to time, in consultation with the National Director and after consultation with the Directors , prescribe the appropriate legal qualifications for the appointment of a person as prosecutor in a lower court.
In so far as any law governing the public service pertaining to Deputy Directors and prosecutors may be inconsistent with this Act , the provisions of this Act shall apply.
the salary of a Deputy National Director shall not be less than 85 per cent of the salary of the National Director ; and the salary of a Director shall not be less than 80 per cent of the salary of the National Director.
If an officer or employee in the public service is appointed as the National Director , a Deputy National Director or a Director , the period of his or her service as National Director, Deputy National Director or Director shall be reckoned as part of and continuous with his or her employment in the public service, for purposes of leave, pension and any other conditions of service, and the provisions of any pension law applicable to him or her as such officer or employee, or in the event of his or her death, to his or her dependants and which are not inconsistent with this section, shall, with the necessary changes, continue so to apply.
The National Director is entitled to pension provisioning and pension benefits determined and calculated under all circumstances, as if he or she is employed as a Director-General in the public service.
The President may, whenever in his or her opinion it is necessary and after consultation with the Minister and the National Director , transfer and appoint any Director to any Office contemplated in section 6 (1) or Investigating Directorate , or as a Special Director.
[Date of commencement of s. 17: 1 August 1998.
Subject to the provisions of this section, any Deputy Director or prosecutor shall be paid a salary in accordance with the scale determined from time to time for his or her rank and grade by the Minister after consultation with the National Director and the Minister for the Public Service and Administration, and with the concurrence of the Minister of Finance, by notice in the Gazette.
Different categories of salaries and salary scales may be determined in respect of different categories of Deputy Directors and prosecutors.
The first notice in terms of subsection (1) shall be issued as soon as possible after the commencement of this Act , and thereafter such a notice shall be issued if circumstances, including any revision and adjustment of salaries and allowances of the National Director and magistrates since the latest revision and adjustment of salaries of Deputy Directors or prosecutors , so justify.
A notice issued in terms of subsection (1) shall be tabled in Parliament within 14 days after publication thereof, if Parliament is then in session or, if Parliament is not then in session, within 14 days after the commencement of its next ensuing session.
the validity of anything done under the notice or provision up to the date on which it so lapsed; or any right, privilege, obligation or liability acquired, accrued or incurred as at that date under or by virtue of the notice or provision.
shall, for the purposes of this subsection, not be deemed to result in a reduction of such salary.
Subject to the provisions of this Act , the other conditions of service of a Deputy Director or a prosecutor shall be determined in terms of the provisions of the Public Service Act.
[Chapter 3A (ss 19A-19C) inserted by s. 8 of Act 61 of 2000 and repealed by s. 5 of Act 56 of 2008.
[Ss. 19A to 19C inclusive inserted by s. 8 of Act 61 of 2000 and repealed by s. 5 of Act 56 of 2008.
carry out any necessary functions incidental to instituting and conducting such criminal proceedings; and discontinue criminal proceedings, vests in the prosecuting authority and shall, for all purposes, be exercised on behalf of the Republic.
Any Deputy National Director shall exercise the powers referred to in subsection subject to the control and directions of the National Director.
the area of jurisdiction for which he or she has been appointed; and any offences which have not been expressly excluded from his or her jurisdiction, either generally or in a specific case, by the National Director.
the area of jurisdiction for which he or she has been appointed; and such offences and in such courts, as he or she has been authorised in writing by the National Director or a person designated by the National Director.
Any prosecutor shall be competent to exercise any of the powers referred to in subsection (1) to the extent that he or she has been authorised thereto in writing by the National Director , or by a person designated by the National Director.
the offences; and the court or courts, in respect of which such powers may be exercised.
No member of the prosecuting authority who has been suspended from his or her office under this Act or any other law shall be competent to exercise any of the powers referred to in subsection (1) for the duration of such suspension.
with the concurrence of the Minister and after consulting the Directors , determine prosecution policy; and issue policy directives, which must be observed in the prosecution process, and shall exercise such powers and perform such functions in respect of the prosecution policy, as determined in this Act or any other law.
The prosecution policy or amendments to such policy must be included in the report referred to in section 35 (2) (a) : Provided that the first prosecution policy issued under this Act shall be tabled in Parliament as soon as possible, but not later than six months after the appointment of the first National Director.
The prosecution policy must determine the circumstances under which prosecutions shall be instituted in the High Court as a court of first instance in respect of offences referred to in Schedule 2 to the Criminal Law Amendment Act, 1997 (Act 105 of 1997).
[Sub-s. (3) added by s. 7 of Act 38 of 2007.
The National Director must issue policy directives pursuant to the policy contemplated in subsection (3), regarding the institution of prosecutions in respect of offences referred to in Schedule 2 to the Criminal Law Amendment Act, 1997.
[Sub-s. (4) added by s. 7 of Act 38 of 2007.
The prosecution policy and the policy directives contemplated in subsections (3) and (4) above, must be issued within three months of the date of the commencement of the Criminal Law (Sentencing) Amendment Act, 2007.
[Sub-s. (5) added by s. 7 of Act 38 of 2007.
The National Director , as the head of the prosecuting authority , shall have authority over the exercising of all the powers, and the performance of all the duties and functions conferred or imposed on or assigned to any member of the prosecuting authority by the Constitution , this Act or any other law.
may intervene in any prosecution process when policy directives are not complied with; and may review a decision to prosecute or not to prosecute, after consulting the relevant Director and after taking representations, within the period specified by the National Director , of the accused person, the complainant and any other person or party whom the National Director considers to be relevant.
Where the National Director or a Deputy National Director authorised thereto in writing by the National Director deems it in the interest of the administration of justice that an offence committed as a whole or partially within the area of jurisdiction of one Director be investigated and tried within the area of jurisdiction of another Director , he or she may, subject to the provisions of section 111 of the Criminal Procedure Act, 1977 (Act 51 of 1977), in writing direct that the investigation and criminal proceedings in respect of such offence be conducted and commenced within the area of jurisdiction of such other Director.
may have the administrative work connected with the exercise of his or her powers, the performance of his or her functions or the carrying out of his or her duties, carried out by persons referred to in section 37 of this Act ; and may make recommendations to the Minister with regard to the prosecuting authority or the administration of justice as a whole.
The National Director shall, after consultation with the Deputy National Directors and the Directors , advise the Minister on creating a structure, by regulation, in terms of which any person may report to such structure any complaint or any alleged improper conduct or any conduct which has resulted in any impropriety or prejudice on the part of a member of the prosecuting authority , and determining the powers and functions of such structure.
The National Director shall, in consultation with the Minister and after consultation with the Deputy National Directors and the Directors , frame a code of conduct which shall be complied with by members of the prosecuting authority.
The code of conduct may from time to time be amended, and must be published in the Gazette for general information.
The National Director shall develop, in consultation with the Minister or a person authorised thereto by the Minister , and the Directors , training programmes for prosecutors.
authorise any competent person in the employ of the public service or any local authority to conduct prosecutions, subject to the control and directions of the National Director or a person designated by him or her, in respect of such statutory offences, including municipal laws, as the National Director , in consultation with the Minister , may determine.
The National Director or any Deputy National Director designated by the National Director shall have the power to institute and conduct a prosecution in any court in the Republic in person.
Any Deputy National Director may exercise or perform any of the powers, duties and functions of the National Director which he or she has been authorised by the National Director to exercise or perform.
[Sub-s. (2) added by s. 9 of Act 61 of 2000 and deleted by s. 6 of Act 56 of 2008.
supervise, direct and co-ordinate specific investigations; and carry out all duties and perform all functions, and exercise all powers conferred or imposed on or assigned to him or her under any law which is in accordance with the provisions of this Act.
Provided that an Investigating Director or the person authorized thereto by him or her shall exercise the powers referred to in this subsection only after consultation with the Director of the area of jurisdiction concerned.
A Special Director shall exercise the powers, carry out the duties and perform the functions conferred or imposed on or assigned to him or her by the President, subject to the directions of the National Director : Provided that if such powers, duties and functions include any of the powers, duties and functions referred to in section 20 (1), they shall be exercised, carried out and performed in consultation with the Director of the area of jurisdiction concerned.
shall, subject to the directions of the National Director , be responsible for the day to day management of the Deputy Directors and prosecutors under his or her control.
Without limiting the generality of subsection (4) (c) and subject to the directions of the National Director , directions or guidelines under that subsection may be given or furnished in relation to particular cases and may determine that certain offences or classes of offences must be referred to the Director concerned for decisions on the institution or conducting of prosecutions in respect of such offences or classes of offences.
The Director shall give to the National Director a copy of each direction given or guideline furnished under subsection (4) (c).
is considering the institution or conducting of a prosecution for an offence; and is of the opinion that a matter connected with or arising out of the offence requires further investigation, the Director may request the Provincial Commissioner of the police service referred to in subsection (4) (c) (i) for assistance in the investigation of that matter and where the Director so requests, the Provincial Commissioner concerned shall, so far as practicable, comply with the request.
The powers conferred upon a Director under section 20 (1) shall include the authority to prosecute in any court any appeal arising from any criminal proceedings.
Subject to section 20 (4) and the control and directions of a Director , a Deputy Director at the Office of a Director referred to in section 13 (1), has all the powers, duties and functions of a Director.
A power, duty or function which is exercised, carried out or performed by a Deputy Director is construed, for the purposes of this Act , to have been exercised, carried out or performed by the Director concerned.
under this Act and any other law of the Republic ; and by the head of the Office or Investigating Directorate where he or she is employed or a person designated by such head; or if he or she is employed as a prosecutor in a lower court, by the Director in whose area of jurisdiction such court is situated or a person designated by such Director.
Notwithstanding the provisions of the Right of Appearance in Courts Act, 1995 (Act 62 of 1995), or any other law, any prosecutor who has obtained such legal qualifications as the Minister after consultation with the National Director may prescribe; and has at least three years' experience as a prosecutor of a magistrates' court of a regional division, shall, subject to section 20 (6), have the right to appear in any court in the Republic.
This Chapter only relates to Investigating Directorates.
Nothing in this Chapter or section 7, derogates from any power or duty which relates to the prevention, combating or investigation of any offences and which is bestowed upon the South African Police Service in terms of any law.
[Sub-s. (2) substituted by s. 7 of Act 56 of 2008.
[S. 26 substituted by s. 10 of Act 61 of 2000.
all other relevant information known to the declarant.
[S. 27 substituted by s. 11 of Act 61 of 2000.
If the Investigating Director has reason to suspect that a specified offence has been or is being committed or that an attempt has been or is being made to commit such an offence, he or she may conduct an investigation on the matter in question, whether or not it has been reported to him or her in terms of section 27.
If the National Director refers a matter in relation to the alleged commission or attempted commission of a specified offence to the Investigating Director , the Investigating Director shall conduct an investigation, or a preparatory investigation as referred to in subsection (13), on that matter.
If the Investigating Director , at any time during the conducting of an investigation on a matter referred to in paragraph (a) or (b) , considers it desirable to do so in the interest of the administration of justice or in the public interest, he or she may extend the investigation so as to include any offence, whether or not it is a specified offence , which he or she suspects to be connected with the subject of the investigation.
If the Investigating Director , at any time during the conducting of an investigation , is of the opinion that evidence has been disclosed of the commission of an offence which is not being investigated by the Investigating Directorate concerned, he or she must without delay inform the National Commissioner of the South African Police Service of the particulars of such matter.
[Sub-s. (1) substituted by s. 12 (a) of Act 61 of 2000.
The Investigating Director may, if he or she decides to conduct an investigation , at any time prior to or during the conducting of the investigation designate any person referred to in section 7 (4) (a) or, in the case of an investigation requested by the Head of the Directorate for Priority Crime Investigation in terms of section 17D (3) of the South African Police Service Act, 1995 (Act 68 of 1995), any member of the prosecuting authority or a member of that Directorate, to conduct the investigation , or any part thereof, on his or her behalf and to report to him or her.
[Para. (a) substituted by s. 8 of Act 56 of 2008.
A person so designated shall for the purpose of the investigation concerned have the same powers as those which the Investigating Director has in terms of this section and section 29 of this Act, and the instructions issued by the Treasury under section 39 of the Exchequer Act, 1975 (Act 66 of 1975), in respect of commissions of inquiry shall apply with the necessary changes in respect of such a person.
[Sub-s. (2) substituted by s. 12 (a) of Act 61 of 2000.
All proceedings contemplated in subsections (6), (8) and (9) shall take place in camera . [Sub-s. (3) substituted by s. 12 (a) of Act 61 of 2000.
The procedure to be followed in conducting an investigation shall be determined by the Investigating Director at his or her discretion, having regard to the circumstances of each case.
[Sub-s. (4) substituted by s. 12 (a) of Act 61 of 2000.
The proceedings contemplated in subsections (6), (8) and (9) shall be recorded in such manner as the Investigating Director may deem fit. [Sub-s. (5) substituted by s. 12 (a) of Act 61 of 2000.
the Investigating Director or a person designated by him or her may question that person, under oath or affirmation administered by the Investigating Director , and examine or retain for further examination or for safe custody such a book, document or other object: Provided that any person from whom a book or document has been taken under this section may, as long as it is in the possession of the Investigating Director , at his or her request be allowed, at his or her own expense and under the supervision of the Investigating Director , to make copies thereof or to take extracts therefrom at any reasonable time.
[Sub-s. (6) substituted by s. 12 (a) of Act 61 of 2000.
be signed by the Investigating Director or a person authorized by him or her; and be served in the prescribed manner.
The law regarding privilege as applicable to a witness summoned to give evidence in a criminal case in a magistrate's court shall apply in relation to the questioning of a person in terms of subsection (6): Provided that such a person shall not be entitled to refuse to answer any question upon the ground that the answer would tend to expose him or her to a criminal charge.
No evidence regarding any questions and answers contemplated in paragraph (a) shall be admissible in any criminal proceedings, except in criminal proceedings where the person concerned stands trial on a charge contemplated in subsection (10) (b) or (c) , or in section 319 (3) of the Criminal Procedure Act, 1955 (Act 56 of 1955).
shall be entitled to such witness fees as he or she would be entitled to if he or she were a witness for the State in criminal proceedings in a magistrate's court.
gives false evidence knowing that evidence to be false or not knowing or not believing it to be true, shall be guilty of an offence.
[Sub-ss. (11) and (12) deleted by s. 12 (b) of Act 61 of 2000.
If the Investigating Director considers it necessary to hear evidence in order to enable him or her to determine if there are reasonable grounds to conduct an investigation in terms of subsection (1) (a) , the Investigating Director may hold a preparatory investigation.
The provisions of subsections (2) to (10), inclusive, and of sections 27 and 29 shall, with the necessary changes, apply to a preparatory investigation referred to in subsection (13).
[Sub-s. (14) substituted by s. 12 (c) of Act 61 of 2000.
the right of a person to freedom and security; and the right of a person to his or her personal privacy.
No evidence regarding any questions and answers contemplated in subsection (1) shall be admissible in any subsequent criminal proceedings against a person from whom information in terms of that subsection is acquired if the answers incriminate him or her, except in criminal proceedings where the person concerned stands trial on a charge contemplated in subsection (12).
seize, against the issue of a receipt, anything on or in the premises which has a bearing or might have a bearing on the investigation in question, or if he or she wishes to retain it for further examination or for safe custody: Provided that any person from whom a book or document has been taken under this section may, as long as it is in the possession of the Investigating Director , at his or her request be allowed, at his or her own expense and under the supervision of the Investigating Director , to make copies thereof or to take extracts therefrom at any reasonable time.
[Sub-s. (1) substituted by s. 13 (a) of Act 61 of 2000.
Subject to subsection (10), the premises referred to in subsection (1) may only be entered, and the acts referred to in subsection (1) may only be performed, by virtue of a warrant issued in chambers by a magistrate, regional magistrate or judge of the area of jurisdiction within which the premises is situated: Provided that such a warrant may be issued by a judge in respect of premises situated in another area of jurisdiction, if he or she deems it justified.
the need, in regard to the investigation , for a search and seizure in terms of this section, that there are reasonable grounds for believing that anything referred to in subsection (1) is on or in such premises or suspected to be on or in such premises.
[Sub-s. (5) substituted by s. 13 (b) of Act 61 of 2000.
it is cancelled by the person who issued it or, if such person is not available, by any person with like authority; or the expiry of three months from the day of its issue, whichever may occur first.
the delay caused by the obtaining of any such warrant would defeat the object of the entry, search, seizure and removal.
Any entry and search in terms of paragraph (a) shall be executed by day, unless the execution thereof by night is justifiable and necessary, and the person exercising the powers referred to in the said paragraph shall identify himself or herself at the request of the owner or the person in control of the premises.
If during the execution of a warrant or the conducting of a search in terms of this section, a person claims that any item found on or in the premises concerned contains privileged information and for that reason refuses the inspection or removal of such item, the person executing the warrant or conducting the search shall, if he or she is of the opinion that the item contains information which is relevant to the investigation and that such information is necessary for the investigation , request the registrar of the High Court which has jurisdiction or his or her delegate, to seize and remove that item for safe custody until a court of law has made a ruling on the question whether the information concerned is privileged or not.
[Sub-s. (11) substituted by s. 13 (c) of Act 61 of 2000.
when he or she is asked in terms of subsection (1) for information or an explanation relating to a matter within his or her knowledge, refuses or fails to give that information or explanation or gives information or an explanation which is false or misleading, knowing it to be false or misleading, shall be guilty of an offence.
30 and 31.
[Ss. 30 and 31 substituted by s. 14 of Act 61 of 2000 and repealed by s. 9 of Act 56 of 2008.
A member of the prosecuting authority shall serve impartially and exercise, carry out or perform his or her powers, duties and functions in good faith and without fear, favour or prejudice and subject only to the Constitution and the law.
Subject to the Constitution and this Act , no organ of state and no member or employee of an organ of state nor any other person shall improperly interfere with, hinder or obstruct the prosecuting authority or any member thereof in the exercise, carrying out or performance of its, his or her powers, duties and functions.
'I (full name) do hereby swear/solemnly affirm that I will in my capacity as National Director/Deputy National Director of Public Prosecutions/ Director/Deputy Director of Public Prosecutions/ prosecutor , uphold and protect the Constitution and the fundamental rights entrenched therein and enforce the Law of the Republic without fear, favour or prejudice and, as the circumstances of any particular case may require, in accordance with the Constitution and the Law. (In the case of an oath: So help me God.)'.
in the case of the National Director , or a Deputy National Director, Director or Deputy Director , be taken or made before the most senior available judge of the High Court within which area of jurisdiction the Office of the National Director , Director or Deputy Director , as the case may be, is situated; or in the case of a prosecutor , be taken or made before the Director in whose Office the prosecutor concerned has been appointed or before the most senior judge or magistrate at the court where the prosecutor is stationed, who shall at the bottom thereof endorse a statement of the fact that it was taken or made before him or her and of the date on which it was so taken or made and append his or her signature thereto.
The Minister shall, for purposes of section 179 of the Constitution, this Act or any other law concerning the prosecuting authority , exercise final responsibility over the prosecuting authority in accordance with the provisions of this Act.
submit the reports contemplated in section 34 to the Minister ; and arrange meetings between the Minister and members of the prosecuting authority.
A Director must annually, not later than the first day of March, submit to the National Director a report on all his or her activities during the previous year.
The National Director may at any time request a Director to submit a report with regard to a specific activity relating to his or her powers, duties or functions.
A Director may, at any time, submit a report to the National Director with regard to any matter relating to the prosecuting authority , if he or she deems it necessary.
The prosecuting authority shall be accountable to Parliament in respect of its powers, functions and duties under this Act , including decisions regarding the institution of prosecutions.
The National Director must submit annually, not later than the first day of June, to the Minister a report referred to in section 22 (4) (g) , which report must be tabled in Parliament by the Minister within 14 days, if Parliament is then in session, or if Parliament is not then in session, within 14 days after the commencement of its next ensuing session.
The National Director may, at any time, submit a report to the Minister or Parliament with regard to any matter relating to the prosecuting authority , if he or she deems it necessary.
the exercise of the powers, the carrying out of the duties and the performance of the functions of the prosecuting authority ; and the remuneration and other conditions of service of members of the prosecuting authority , shall be defrayed out of monies appropriated by Parliament for that purpose.
The Department of Justice must, in consultation with the National Director , prepare the necessary estimate of revenue and expenditure of the prosecuting authority.
be charged with the responsibility of accounting for State monies received or paid out for or on account of the prosecuting authority ; and cause the necessary accounting and other related records to be kept.
[Sub-s. (3) substituted by s. 15 of Act 61 of 2000 and by s. 10 (a) of Act 56 of 2008.
[Sub-s. (3A) inserted by s. 15 of Act 61 of 2000 and deleted by s. 10 (b) of Act 56 of 2008.
General. [Sub-s. (4) substituted by s. 15 of Act 61 of 2000 and by s. 10 (c) of Act 56 of 2008.
The Director-General: Justice may, on the recommendation of the National Director and with the concurrence of the Minister of Finance, order that the expenses or any part of the expenses incurred by any person in the course of or in connection with an investigation contemplated in section 28 (1) be paid from State funds to that person.
Sub-s. (5) added by s. 15 of Act 61 of 2000 and substituted by s.
the Offices of prosecutors as determined by the National Director , in consultation with the Director concerned, shall be persons appointed or employed under the Public Service Act.
The National Director may in consultation with the Minister , and a Deputy National Director or a Director may, in consultation with the Minister and the National Director , on behalf of the State, engage, under agreements in writing, persons having suitable qualifications and experience to perform services in specific cases.
The terms and conditions of service of a person engaged by the National Director , a Deputy National Director or a Director under subsection (1) shall be as determined from time to time by the Minister in concurrence with the Minister of Finance.
a Deputy National Director or a Director, in consultation with the National Director, may, on behalf of the State, engage, under an agreement in writing, such person to perform the services contemplated in subsection (1) without consulting the Minister as contemplated in that subsection.
[Sub-s. (3) added by s. 16 of Act 61 of 2000.
For purposes of this section, 'services' include the conducting of a prosecution under the control and direction of the National Director , a Deputy National Director or a Director , as the case may be.
[Sub-s. (4) added by s. 16 of Act 61 of 2000.
[Date of commencement of s. 38: 23 April 1999.
The National Director , a Deputy National Director and a Director shall give written notice to the Minister of all direct or indirect pecuniary interests that they have or acquire in any business whether in the Republic or elsewhere or in any body corporate carrying on any such business.
The National Director , a Deputy National Director and a Director shall not, without the consent of the President, perform any paid work outside his or her duties of office.
matters necessary or convenient to be prescribed for carrying out or giving effect to this Act.
[Sub-s. (1) amended by s. 11 (a) of Act 56 of 2008.
[Sub-s. (2) amended by s. 17 of Act 42 of 2001 and deleted by s. 11 (b) of Act 56 of 2008.
may provide that a contravention thereof shall be an offence; and must be submitted to Parliament before publication in the Gazette.
[S. 40 substituted by s. 17 of Act 61 of 2000.
'unauthorised access' includes access by a person who is authorised to use the computer but is not authorised to gain access to a certain program or to certain data held in such computer or is unauthorised, at the time when the access is gained, to gain access to such computer, program or data.
impair the operation of any computer or of any program in any computer or of the operating system of any computer or the reliability of data held in such computer; or prevent or hinder access to any program or data held in any computer.
Any act or event for which proof is required for a conviction of an offence in terms of this section and which was committed or took place outside the Republic is deemed to have been committed or to have taken place in the Republic if the accused was in the Republic at the time when he or she performed the act or any part thereof; or the computer, by means of which the act was done, or which was affected in a manner contemplated in subsection (2) by the act, was in the Republic at the time when the accused performed the act or any part thereof; or the accused was a South African citizen or domiciled in the Republic at the time of the commission of the offence.
[S. 40A inserted by s. 18 of Act 61 of 2000.
Any person who contravenes the provisions of section 32 (1) (b) shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 10 years or to both such fine and such imprisonment.
Any person convicted of an offence referred to in section 28 (10) or 29 (12) shall be liable to a fine or to imprisonment for a period not exceeding 15 years or to both such fine and such imprisonment.
Any person who is convicted of an offence in terms of a regulation made under section 40, shall be liable to a fine or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.
Any person who is convicted of an offence referred to in section 40A(2), shall be liable to a fine or to imprisonment for a period not exceeding 25 years or to both such fine and such imprisonment.
Any person who, in connection with any activity carried on by him or her, in a fraudulent manner takes, assumes, uses or publishes any name, description, title or symbol indicating or conveying or purporting to indicate or convey or which is calculated or is likely to lead other persons to believe or to infer that such activity is carried on under or by virtue of the provisions of this Act or under the patronage of the prosecuting authority , or is in any manner associated or connected with the prosecuting authority , shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 25 years or to both such fine and such imprisonment.
for the purpose of performing his or her functions in terms of this Act or any other law; or when required to do so by order of a court of law.
Any person who contravenes subsection (6) shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 15 years or to both such fine and such imprisonment.
[S. 41 substituted by s. 19 of Act 61 of 2000.
No person shall be liable in respect of anything done in good faith under this Act.
Anyone holding office as an attorney-general in terms of the Attorney-General Act, 1992 (Act 92 of 1992), shall, subject to paragraph (b) , be deemed to have been appointed as a Director in terms of this Act , and shall continue to function in terms of the laws applicable to his or her Office.
The President shall, as soon as reasonably possible after the commencement of this section, appoint each attorney-general referred to in paragraph (a) as a Director at the Office that, and for such term as the President, after consultation with the attorneygeneral concerned, may determine, but such term shall not extend beyond the date on which the attorney-general concerned will attain the age of 65 years.
The provisions of section 12 (4) shall apply with the necessary changes in respect of a Director referred to in paragraph (b) : Provided that the reference in section 12 (4) to the age of 65 years shall be construed as a reference to the date on which the Director 's term of office as contemplated in paragraph (b) expires.
If the term of office of a Director appointed under paragraph (b) expires before he or she has attained the age of 65 years, he or she shall be entitled to pension benefits determined and calculated under all circumstances as if he or she was employed as a Director-General in the public service, who served as a Director-General for five years.
Anyone holding office as an attorney-general in terms of a law other than the Attorney-General Act, 1992, or holding an appointment as acting attorney-general, shall be deemed to have been appointed as an acting Director under this Act at the office where he or she holds such office or appointment, and shall continue to function in that capacity until otherwise determined under this Act or any other law.
(a) Any person who immediately before the commencement of this section was employed by the State as a deputy attorney-general shall continue in such employment and shall be deemed to have been appointed as a Deputy Director in terms of section 15 (1).
shall continue in such employment as a prosecutor ; and shall be deemed to have been authorised to exercise the powers referred to in section 20 (1): Provided that no prosecutor shall, by virtue of this section, have more powers than he or she would have had under the delegation concerned.
Criminal proceedings which have been instituted before the commencement of this Act , must be disposed of as if the decision to institute and prosecute in such criminal proceedings had been taken by a member of the prosecuting authority appointed in terms of this Act.
Any attorney-general, deputy attorney-general, state advocate or prosecutor who continues in office in terms of this section must, within three months after the commencement of this Act , take the oath or make the affirmation referred to in section 32 (2).
As from the date of the commencement of this section, all offices of attorneysgeneral at the High Courts contemplated in item 16 (4) (a) of Schedule 6 to the Constitution , shall become offices of the prosecuting authority as referred to in section 6 of this Act.
[Sub-s. (7) deleted by s. 12 of Act 56 of 2008.
Subject to the Constitution and this Act , all measures which immediately before the commencement of this section were in operation and applied to attorneys-general, deputy attorneys-general, state advocates and prosecutors, including measures regarding remuneration, pension and pension benefits, leave gratuity and any other term and condition of service, shall continue in operation and to apply to the said attorneysgeneral, deputy attorneys-general, state advocates and prosecutors until amended or repealed by this Act : Provided that no such measure shall, except in accordance with an applicable law or agreement, be changed in a manner which affects such attorneysgeneral, deputy attorneys-general, state advocates and prosecutors to their detriment.
Notwithstanding the commencement of this Act , all measures regulating the institution and conducting of prosecutions in any court shall remain in force until repealed or amended under this Act or by any competent authority.
'fixed date' means a date to be determined by the President by proclamation.
Prior to a date determined by the National Director , any person employed by the Directorate of Special Operations must inform the National Director whether they consent to be transferred to the South African Police Service.
An employee contemplated in subsection (3) may be transferred to the South African Police Service only with his or her consent.
The remuneration and other terms and conditions of employment of employees transferred in terms of subsection (3) may not be less favourable than those that applied immediately before their transfer.
The transfer contemplated in subsection (3) does not interrupt the employees' continuity of employment and the employees remain entitled to all rights and benefits, including pension benefits and privileges to which they were entitled to immediately before transfer.
An employee referred to in subsection (3) who does not consent to be transferred to the South African Police Service must, prior to the date referred to in subsection (2), notify the National Director thereof in writing.
after consultation with the Minister and the Cabinet members responsible for the public service and for finance, offer to transfer the employee to a reasonable alternative post or position in any government department or state institution in accordance with subsection (4) (b) and (c) and section 14 of the Public Service Act, 1994 (Proclamation 103 of 1994), shall, unless the context indicates otherwise, apply to such a transfer; or after consultation with the Minister , offer to transfer the employee to a reasonable alternative post or position in the prosecuting authority , other than any post of special investigator , in accordance with subsection (4) (b) and (c).
If the employee does not accept the offer made in paragraph (b) within 30 days of it being made, the employee's employment automatically terminates on the fixed date.
An employee whose employment is terminated in terms of paragraph (c) is entitled to a severance package determined by the Minister in consultation with the Cabinet members for the public service and for finance.
The severance package provided for in paragraph (d) may not be less favourable than the severance package provided for in the Determination on the Introduction of an Employee-Initiated Severance Package for the Public Service determined in terms section 3 of the Public Service Act, 1994.
Any dispute arising from the interpretation or application of this section in so far as employees are concerned must be referred to the Labour Court for determination.
Any decisions made, directions issued and any proceedings instituted by the employer immediately before the fixed date in respect of an employee referred to in subsection (3), remains [sic] applicable to him or her and must be implemented or finalised as if the National Prosecuting Authority Amendment Act, 2008, has not been passed.
Any member of the prosecuting authority who was employed in the Directorate of Special Operations immediately before the fixed date, shall continue to be employed in the Office of the National Director , and shall exercise, carry out and perform his or her powers, duties and functions as conferred, imposed or assigned to him or her by the National Director and subject to the control and directions of the National Director or a person authorised thereto by the National Director.
The National Prosecuting Authority Amendment Act, 2008, does not affect the validity of any investigation performed by the Directorate of Special Operations before the fixed date, including any functions incidental to such investigations or the institution of any criminal proceedings.
Investigations by the Directorate of Special Operations that are pending immediately before the fixed date must, on that date, be transferred to and continued by the Directorate for Priority Crime Investigation in accordance with a mechanism to ensure that the investigations are not prejudiced by the transfer.
The Minister , in consultation with the Cabinet member for police and after consultation with the National Director and the National Commissioner, must determine the mechanism referred to in paragraph (a).
As from the fixed date any liability incurred by the Directorate of Special Operations as a result of any investigation by that Directorate, shall pass to the prosecuting authority , unless the Minister in consultation with the Cabinet member for police, in a specific instance determines otherwise.
of the South African Police Service Act, 1995.
The Head of the Directorate for Priority Crime Investigation may, at any time after the fixed date, withdraw such a request.
The National Director must designate a Director in respect of each investigation referred to in paragraph (a) , who must assist the Directorate of Priority Crime Investigation in carrying out such an investigation.
such administrative and support personnel employed by the Directorate of Special Operations as may be agreed upon between the National Director and the National Commissioner, may be transferred to the South African Police Service.
[S. 43A added by s. 20 of Act 61 of 2000 and substituted by s. 13 of Act 56 of 2008.
NATIONAL PROSECUTING AUTHORITY ACT 32 OF 1998 Page 34 of 38 area of jurisdiction of that Court.
[S. 45 substituted by s. 13 of Act 122 of 1998.
This Act shall be called the National Prosecuting Authority Act, 1998, and shall come into operation on a date fixed by the President by proclamation in the Gazette.
Repeal of sections 2 and 5.
(1) (a) The direction of the National Director of Public Prosecutions contemplated in section 179 (1) (a) of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), shall state the name of the accused, the relevant offence, the place at which (if known) and the Director in whose area of jurisdiction the relevant investigation and criminal proceedings shall be conducted and commenced.
To amend the National Prosecuting Authority Act, 1998, so as to make provision for the establishment of the Directorate of Special Operations; to make provision for the existing Investigating Directorates to become part of the Directorate of Special Operations; to amend the Interception and Monitoring Prohibition Act, 1992, so as to make provision for applications for directions in terms of that Act by the head of the Directorate of Special Operations; and to provide for matters connected therewith.
1 Substitutes the Preamble to the National Prosecuting Authority Act 32 of 1998.
2 Amends section 1 of the National Prosecuting Authority Act 32 of 1998 , as follows: paragraph (a) inserts the definitions of 'Directorate of Special Operations' and 'head of an Investigating Directorate'; paragraph (b) substitutes the definitions of 'Investigating Director' and 'Investigating Directorate'; paragraph (c) inserts the definition of 'investigation'; and paragraph (d) inserts the definitions of 'special investigator' and 'specified offence'.
3 Amends section 5 (2) of the National Prosecuting Authority Act 32 of 1998 by inserting paragraph (d A).
4 Substitutes section 7 of the National Prosecuting Authority Act 32 of 1998.
5 Amends section 11 of the National Prosecuting Authority Act 32 of 1998 by substituting subsection (1).
7 Amends section 15 of the National Prosecuting Authority Act 32 of 1998 by substituting subsection (1).
8 Inserts Chapter 3A (sections 19A to 19C) in the National Prosecuting Authority Act 32 of 1998.
9 Amends section 23 of the National Prosecuting Authority Act 32 of 1998 by adding subsection (2), the existing section becoming subsection (1).
10 and 11 Substitute respectively sections 26 and 27 of the National Prosecuting Authority Act 32 of 1998.
12 Amends section 28 of the National Prosecuting Authority Act 32 of 1998 , as follows: paragraph (a) substitutes subsections (1) to (6); paragraph (b) deletes subsections (11) and (12); and paragraph (c) substitutes subsection (14).
13 Amends section 29 of the National Prosecuting Authority Act 32 of 1998 , as follows: paragraph (a) substitutes subsection (1); paragraph (b) substitutes subsection (5); and paragraph (c) substitutes subsection (11).
14 Substitutes sections 30 and 31 of the National Prosecuting Authority Act 32 of 1998.
15 Amends section 36 of the National Prosecuting Authority Act 32 of 1998 by substituting subsections (3), (3A), (4) and (5) for subsections (3) and (4).
16 Amends section 38 of the National Prosecuting Authority Act 32 of 1998 by adding subsections (3) and (4).
17 Substitutes section 40 of the National Prosecuting Authority Act 32 of 1998.
18 Inserts section 40A in the National Prosecuting Authority Act 32 of 1998.
19 Substitutes section 41 of the National Prosecuting Authority Act 32 of 1998.
20 Inserts section 43A in the National Prosecuting Authority Act 32 of 1998.
21 Inserts the index in the National Prosecuting Authority Act 32 of 1998.
22 Amends section 1 of the Interception and Monitoring Prohibition Act 127 of 1992 , as follows: paragraph (a) inserts the definition of 'Directorate'; and paragraph (b) adds paragraph (c) to the definition of 'serious offence'.
23 Amends section 3 (2) of the Interception and Monitoring Prohibition Act 127 of 1992 by adding paragraph (d).
25 Amends section 5 of the Interception and Monitoring Prohibition Act 127 of 1992 by substituting subsection (2).
This is the National Prosecuting Authority Amendment Act, 2000, and comes into operation on a date fixed by the President by proclamation in the Gazette.
To amend the National Prosecuting Authority Act, 1998, so as to repeal the provisions relating to the Directorate of Special Operations; and to provide for matters connected therewith.
1 Amends section 1 of the National Prosecuting Authority Act 32 of 1998 , as follows: paragraph (a) deletes the definition of 'Directorate of Special Operations'; paragraph (b) substitutes the definition of 'head of an Investigating Directorate'; paragraph (c) substitutes the definition of 'Investigating Director'; paragraph (d) deletes the definition of 'special investigator'; and paragraph (e) substitutes the definition of 'specified offence'.
2 Amends section 5 (2) of the National Prosecuting Authority Act 32 of 1998 by deleting paragraph (d A).
3 Substitutes section 7 of the National Prosecuting Authority Act 32 of 1998.
4 Amends section 13 (1) of the National Prosecuting Authority Act 32 of 1998 by deleting paragraph (a A).
5 Repeals Chapter 3A (ss 19A to 19C inclusive) of the National Prosecuting Authority Act 32 of 1998.
6 Amends section 23 of the National Prosecuting Authority Act 32 of 1998 by deleting subsection (2).
7 Amends section 26 of the National Prosecuting Authority Act 32 of 1998 by substituting subsection (2).
8 Amends section 28 (2) of the National Prosecuting Authority Act 32 of 1998 by substituting paragraph (a).
9 Repeals sections 30 and 31 of the National Prosecuting Authority Act 32 of 1998.
10 Amends section 36 of the National Prosecuting Authority Act 32 of 1998 , as follows: paragraph (a) substitutes subsection (3); paragraph (b) deletes subsection (3A); paragraph (c) substitutes subsection (4); and paragraph (d) substitutes subsection (5).
11 Amends section 40 of the National Prosecuting Authority Act 32 of 1998 , as follows: paragraph (a) substitutes the words in subsection (1) preceding paragraph (a) ; and paragraph (b) deletes subsection (2).
12 Amends section 43 of the National Prosecuting Authority Act 32 of 1998 by deleting subsection (7).
13 Substitutes section 43A of the National Prosecuting Authority Act 32 of 1998 . [Date of commencement of s. 13: 20 February 2009.
14 Amends the Preamble to the National Prosecuting Authority Act 32 of 1998 by deleting the ninth, tenth and eleventh paragraphs.
This Act is called the National Prosecuting Authority Amendment Act, 2008, and comes into operation on a date determined by the President by proclamation in the Gazette.