Month: April 2015

THE APPOINTMENT OF PUBLIC SERVANTS AS JUDGES –DOES IT UNDERMINE THE INDEPENDENCE OF THE JUDICIARY?

A      INTRODUCTION

The fundamental pillar of a democratic society is the independence and impartiality of the judiciary and prosecutors, wherein the respect for the rule of law and the effective protection of human rights are enshrined. The judiciary, prosecutors and lawyers have to exercise their professional responsibilities in an independent and impartial manner without fear, prejudice or victimisation.

The principle of an independent judiciary has its origin in the theory of the separation of powers, wherein the Executive, Legislature and Judiciary form three separate branches of government. A system of checks and balances is operational to prevent the abuse of power by one of the organs to the detriment of the other branches of government and also a free democratic society. [1]

From the above it is clear that unless the judiciary, prosecutors and lawyers are able to exercise their professional duties free from undue influence, impartially and independently, the rule of law will eventually cease to exist.

The appointment of Adv Mokotedi Mpshe SC to the bench of the North West High Court sparked an outcry from various quarters of society. It was stated that he demonstrated “his political pliability – and hence unsuitability for judicial office”.[2]

Paul Hoffman SC was quoted as saying the following: ‘Radebe has, in effect, declared ‘open season’ for the appointment of employees in public administration …to the High Court Bench”.[3]
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LOCUS STANDI OF AN ADVOCATE IN SERVICE OF A DIRECTOR OF PUBLIC PROSECUTIONS OR THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS TO APPEAR ON BEHALF OF THE NATIONAL PROSECUTING AUTHORITY IN CIVIL MATTERS

INTRODUCTION: 

This legal opinion is written as a result of the judgment in the matter of Mark Walter Stevens and 20 others versus Magistrate Theresa Swart NO- Magistrate Germiston and 8 others, which appeared in the South Gauteng High Court, Johannesburg in case number 2012/38742. (a copy of the judgment is attached hereto and marked as Annexure A for ease of reference).

The views expressed herein are my personal views and does not necessarily correspond with or reflect the views of the National Prosecuting Authority or any of the offices within the said Department.

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THE RULE OF LAW AND TRANSITIONAL JUSTICE IN FRAGILE AND POST CONFLICT STATES

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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IAP 19th Annual Conference and General Meeting Dubai, 2014

The IAP held its annual conference and general meeting for the 19th time in Dubai, UAE. This was the first time that a Middle Eastern country hosted this prestigious event. Participant in the conference were welcomed by our hosts in splendid fashion and we were treated with the best that Dubai had to offer, against the magnificent backdrop of this extraordinary city.

The theme of this year’s conference was: “Best Prosecution Practice, Learning from each other. In line with the objectives of the IAP to, inter alia, “promote good relations between individual prosecutors and prosecution agencies; to facilitate the exchange and dissemination among them of information, expertise and experience”, the scene was set for a successful and rewarding experience to be had by all.

To lend grandeur to the opening ceremony, we were graced with the presence of His Highnes Sheikh Mohammed Bin Rashid Al Maktoum, UAE Vice President, Prime Minister and Ruler of Dubai as the conference were opened by His Excellency Counsellor Essam Essa Al Humaidan, Attorney General of Dubai and Gerhard Jarosh, IAP President.
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Conferance of Silk Inputs SSASA

  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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PRESENTATION: BILLY DOWNER SC – IAP ANNUAL CONFERENCE: MOSCOW 2013

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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New website for SSASA

The Society of State Advocates has commissioned a redesign of its website.

The new website will offer a fresh new look and feel, as well as providing new online functionality, including online application for membership and a brand new “members only” section.

We hope that you like our new website and look forward to you making use of it.