PRESENTATION BY ELIVERA DU PLOOY
THE RULE OF LAW IN POST APARTHEID SOUTH AFRICA: TRANSITION, DEVELOPMENT, CHALLENGES

Post 1994 (the year of the first democratic election in South Africa) the rule of law underwent radical change.

The Constitution became the supreme law of the country which made the lawful transition from apartheid to democracy possible. The changes it brought about to the rule of law were nothing short of revolutionary.

The Bill of Rights, enshrined in Chapter 2 of the Constitution, challenged the existing rule of law, compelling its development and evolution. This, however, came with countless challenges.

The purpose of this presentation is to discuss the transition, development and challenges from the perspective of a prosecutor as well as devices prosecutors can use in developing and protecting these rights which forms part of the rule of law.
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1. [1]Conference of Silk (Senior Council Status) on members of the NPA
   • Although in the past, including since 1998 when the NPA was formally established by an act of parliament, Senior Counsel status were conferred on a number of NPA advocates, all indications are that it grounded to a halt; for no apparent reason, somewhere after 2008/9.
   • The process has always been shrouded in what can best be described as secrecy and as far as I know, no formal process has ever been published.
   • The organised profession of advocates under the various bar counsels follow a specific approach where advocates apply for the conferment of this title. The specific bar counsel of the specific province will then decide on whether such applicant is successful or not. As far as I know the President of the Republic will then confer the status and has almost never, not conferred it on such candidate “approved” by their bar council.
   • Although it is clear that the average period an advocate would be at the bar before applying for silk is somewhere between 10 and 15 years, very many never apply due to purely financial reasons. Such reasons are not applicable to the NPA advocates since there is no monetary incentive to become or not to become a silk.
   • Recently the right of the President to confer silk was successfully attacked in the North Gauteng High Court however on appeal to the SCA, the decision of the North Gauteng High Court was unanimously overturned.

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IAP ANNUAL CONFERENCE: MOSCOW

Tuesday, 10 September 2013

Session: Workshop 2C

Time: 14:30 – 16:00

PRESENTATION: BILLY DOWNER SC

DEPUTY DIRECTOR OF PUBLIC PROSECUTIONS, NATIONAL PROSECUTING AUTHORITY OF SOUTH AFRICA

MEMBER OF THE EXECUTIVE COMMITTEE, IAP

‘Practicing what we preach’- dealing with complaints and prosecutions against prosecutors and addressing disciplinary breaches in accordance with the rule of law 

INTRODUCTION

The topic of this discussion is complaints and prosecutions against prosecutors and addressing disciplinary breaches in accordance with the rule of law. This raises a complex series of issues. I propose to examine each of them carefully, according to the following framework:

• The regulatory framework governing complaints
• Protecting the prosecutor
• Conclusions

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