A prosecuting attorney, more commonly called a public prosecutor in South Africa, is the lawyer who brings and conducts a criminal case on behalf of the State. The prosecutor does not represent a private complainant or a victim. They act for the public as a whole, and their first duty is to see that justice is done rather than simply to secure a conviction.
In South Africa, prosecutors do not work for a private firm or for the police. They are part of the National Prosecuting Authority (NPA), a single, unified body created by section 179 of the Constitution and governed by the National Prosecuting Authority Act 32 of 1998. This article explains what a prosecuting attorney does, how the decision to prosecute is made, the duties a prosecutor owes to the court and the public, and how the role differs from that of a defence attorney.
Understanding the prosecutor’s role helps an accused person, a complainant, and any witness take part in a criminal case with realistic expectations about how the State builds, presents, and sometimes withdraws a matter.
What Is a Prosecuting Attorney in South Africa?
A prosecuting attorney is a qualified legal practitioner employed by the State to institute and conduct criminal proceedings. In South Africa the term “prosecutor” is used more often than “prosecuting attorney”, and the two mean the same thing. A prosecutor appears in the District Magistrate’s Court, the Regional Court, the High Court, and specialist forums such as the Specialist Commercial Crime Court, depending on seniority and the seriousness of the matter.
Prosecutors are organised under the NPA, which is led by the National Director of Public Prosecutions (NDPP). Below the NDPP sit Deputy National Directors, Directors of Public Prosecutions (DPPs) who head each provincial division, Deputy Directors, and the prosecutors who appear in court daily. The NPA mandate is to exercise the powers conferred by the Constitution and the Act on behalf of the State.
The National Prosecuting Authority Act 32 of 1998
Section 179 of the Constitution creates a single National Prosecuting Authority with the power to institute criminal proceedings on behalf of the State. Parliament gave that provision effect through the National Prosecuting Authority Act 32 of 1998. The Act sets out the structure of the NPA, the appointment of the NDPP and other directors, the circumstances in which prosecutors may be removed, and the framework within which the NPA must carry out its work.
The Act also gives the NDPP the power to determine prosecution policy, with the concurrence of the Minister of Justice and Correctional Services, and to issue policy directives that bind every prosecutor in the country. Section 179(4) of the Constitution requires the NPA to exercise its functions without fear, favour or prejudice, and this independence from political direction is one of the defining features of the South African prosecutor’s role.
The Decision to Prosecute
A prosecuting attorney does not simply lay every charge the police bring. The decision whether to prosecute is a professional one, governed by the NPA’s Prosecution Policy. The prosecutor applies a two-stage test before enrolling a matter in court.
- Evidentiary test. There must be a prima facie case with a reasonable prospect of a successful prosecution. If the evidence is too weak to sustain a conviction, the matter should not proceed.
- Public interest test. Even where the evidence is sufficient, the prosecutor must weigh whether the public interest demands a prosecution. Factors include the seriousness of the offence, the impact on victims, the age and circumstances of the accused, and whether a diversion programme or alternative resolution is more appropriate.
If either test is not met, the prosecutor must decline or withdraw the prosecution. This is why matters are sometimes struck from the roll or withdrawn even after an arrest, and it reflects the prosecutor’s duty to act as a minister of justice rather than as a party trying to win at all costs.
Key Duties of a Prosecuting Attorney
Once a decision to prosecute has been made, the prosecuting attorney carries a defined set of responsibilities through the life of the case.
- Case preparation. Reviewing the police docket, statements, exhibits, and expert reports to confirm the charge is supported and the right provision of the Criminal Procedure Act 51 of 1977 is invoked.
- Drafting the charge. Framing the charge sheet or indictment so that the accused understands the allegations and can answer them.
- Disclosure. Furnishing the defence with the information the State intends to rely on, together with information that may point to the innocence of the accused, in line with the constitutional duty to disclose.
- Leading evidence in court. Leading the testimony of State witnesses, presenting documentary and real evidence, and cross-examining defence witnesses where it is justified.
- Legal argument. Addressing the court on points of law, admissibility, and the proper application of precedent.
- Plea and sentence agreements. Concluding plea and sentence agreements under section 105A of the Criminal Procedure Act where this serves the interests of justice.
- Sentencing and after. Leading evidence and argument in mitigation or aggravation of sentence, and noting the State’s position on appeal or review where grounds exist.
Prosecuting Attorney vs Defence Attorney
The prosecuting attorney and the defence attorney sit on opposite sides of the same case, but each owes a distinct duty. The prosecutor represents the State and must act in the public interest, disclosing what is helpful to the defence even where it weakens the State’s case. The defence attorney represents the accused, protects their constitutional rights, tests the State’s evidence to the full, and advances every legitimate argument available.
Neither is the enemy of the other. The criminal justice system depends on the integrity of both roles. A person facing a charge should not be without a defence attorney simply because the prosecutor is well resourced; an experienced defence lawyer ensures that the State proves every element of the offence beyond reasonable doubt and that the rights protected by section 35 of the Constitution are honoured.
How Prosecutors Work With Police and the Courts
Prosecutors and the South African Police Service work closely, but they are not the same institution. The police investigate, arrest, and compile a docket. The prosecutor then evaluates that docket independently, decides whether the case should be enrolled, and directs further investigation where the evidence requires it. A prosecutor may return a docket for additional statements, forensic analysis, or the correction of procedural defects before the matter goes to court.
Inside the courtroom the prosecutor leads the State’s case before a magistrate or judge. In the Regional Court a prosecutor may conduct trials carrying substantial sentences, while High Court trials are typically led by a State advocate attached to the relevant DPP’s office. Bail hearings, postponements, applications for further particulars, and the trial itself all flow through the prosecutor as the State’s representative.
Why Prosecutors Must Act Fairly
South African courts have repeatedly stressed that the prosecutor is a minister of justice, not a partisan combatant. The Constitutional Court has held that the prosecution must act independently and without improper motive, and that a decision to prosecute taken in bad faith or for an ulterior purpose can itself be set aside. The duty to disclose potentially exculpatory material, to refrain from misleading the court, and to place all relevant facts before a judicial officer flows from this principle.
This duty of fairness does not make a prosecutor soft on crime. It protects the integrity of a conviction. A verdict secured through concealment or unfairness is vulnerable on appeal and review, and it damages public confidence in the criminal justice system as a whole.
Frequently Asked Questions
What is a prosecuting attorney in South Africa?
A prosecuting attorney, more often called a public prosecutor, is a qualified legal practitioner employed by the State through the National Prosecuting Authority to institute and conduct criminal proceedings on behalf of the public. They appear in the Magistrate’s Courts, Regional Courts, and the High Court.
What law establishes the National Prosecuting Authority in South Africa?
Section 179 of the Constitution of the Republic of South Africa, 1996 creates the National Prosecuting Authority, and the National Prosecuting Authority Act 32 of 1998 gives it detailed effect, setting out the structure of the NPA, the appointment of the National Director of Public Prosecutions, and the framework for prosecution policy.
How is a prosecuting attorney different from a defence attorney?
A prosecuting attorney represents the State and the public interest, decides whether to prosecute, and must disclose information helpful to the accused. A defence attorney represents the accused, protects their constitutional rights, and tests the State’s evidence. Both roles are essential to a fair trial.
Can a prosecuting attorney drop charges in South Africa?
Yes. If the evidentiary test or the public interest test in the NPA’s Prosecution Policy is not met, the prosecutor must decline to prosecute or withdraw the matter. A prosecution may also be withdrawn where further investigation is required or where a diversion programme is more appropriate.
Do prosecuting attorneys handle civil cases?
No. Prosecutors deal with criminal matters on behalf of the State. Civil disputes, such as divorce, contractual claims, and delictual claims, are handled by attorneys and advocates in private practice who represent the parties involved.
Get help with a criminal law matter. If you are facing charges, are a complainant in a pending matter, or need guidance through the criminal justice process, Otrebski Attorneys’ Criminal Law department in Sandton can assist. Our 100% women-led, Level 4 B-BBEE practice, directed by Nastasja Otrebski, provides principled, practical defence work for clients across Gauteng and South Africa.
Disclaimer. This article is general information about the role of a prosecuting attorney in South Africa and is not legal advice. Criminal cases turn on their own facts, the contents of the docket, and current prosecution policy. For advice on a specific charge or investigation, consult a qualified attorney.