1. To begin with, South Africa does not, in principle, follow a system of compulsory prosecution.
The discretion to prosecute is determined on a case-to-case basis. The decision taken is therefore a
result of the mitigating & aggravating factors. These factors include the nature and seriousness o...
1. To begin with, South Africa does not, in principle, follow a system of compulsory prosecution.
The discretion to prosecute is determined on a case-to-case basis. The decision taken is therefore a
result of the mitigating & aggravating factors. These factors include the nature and seriousness of the
offense, interests of the victim and broader community, circumstances of the offender, previous
convictions, and personal circumstances. A prosecutor may also withdraw a case without the
permission of the DPP. As the DPP may charge the accused afresh. Prosecutors may not stop a
prosecution without the permission of the DPP. DPP my stop prosecution anytime from pleading to
conviction. Accused is entitled to Acquittal and may later successfully rely on a plea of autrefois acquit
the exercise of discretion. A prosecutor will prosecute if there is a prima facie case and if there are no
compelling reasons for one to grant a refusal to prosecute. In light of this, 'prima facie case' would
mean that the allegations being brought to the court, as supported by statements and real and
documentary evidence available to the prosecution, are of such a nature that if proved in a court of
law by the prosecution based on admissible evidence, the court should convict. The prosecutor does
not have to establish whether there is a defense in the case, but rather whether there is a reasonable
and probable cause for prosecution1 .
The prosecution must at the trial be able to furnish proof beyond a reasonable doubt ascertaining a
probable cause for prosecution. More so in exercising his discretion, the prosecutor must respect the
individual's rights. These include the right not to be harassed by a prosecution that has no reasonable
prospects of success as this does not only costs the state but also violates the rights of the accused.
The fact that the prosecutor doubts the strength of the State case is no good ground for fixing an
admission of guilt fine in a summons in the hope that the accused might pay the admission of guilt fine
2
and thereby relieve the State of the burden of proving its case with reference to the case of NGJ
Trading Stores (Pty) Ltd v Guerreiro, many accused persons pay an admission of guilt fine to be rid of
the worry, inconvenience, and expense of fighting a petty criminal charge and not because they are
guilty3. It is improper for the prosecution to secure a 'successful prosecution' in this manner because
the payment of an admission of guilt fine does for criminal record purposes amount to a previous
conviction.
1
Beckenstrater v Rottcher and Theunissen
2
Eusuf 1949 (1) SA 656 (N) at 656-7.
3
NGJ Trading Stores (Pty) Ltd v Guerreiro 1974 (1) SA 51 (O) at 53H-54A
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