Moussa v The State and Another

The appellant, Mr Sylla Moussa, a Guinean national, was charged with multiple counts of fraud, alternatively theft, and money laundering under the Prevention of Organised Crime Act 121 of 1998, arising from alleged large-scale ‘cross-fire fraud’ involving Absa Bank accounts, with an alleged loss of over R41 million. Due to the complexity of the commercial transactions, the National Prosecuting Authority (NPA) engaged a private advocate, Mr Zirk Pansegrouw, in terms of s 38 of the National Prosecuting Authority Act 32 of 1998 to conduct the prosecution. The appellant challenged Pansegrouw’s authority to prosecute on the basis that he had not taken the oath prescribed for permanent prosecutors under s 32(2) of the NPA Act. This challenge evolved into a constitutional attack on s 38 of the NPA Act itself, contending that it undermined the constitutional requirement that prosecutions be conducted without fear, favour or prejudice as required by s 179(4) of the Constitution.

The appeal was dismissed with costs, and the order of the Gauteng Local Division declaring s 38 of the NPA Act constitutional was upheld.

This case confirms the constitutionality of s 38 of the NPA Act and validates the long-standing practice of engaging private counsel to prosecute complex or specialised cases on behalf of the State. It clarifies that prosecutorial independence and impartiality derive from constitutional and statutory control and supervision, not solely from the taking of an oath. The judgment reinforces the hierarchical structure and supervisory control of the NPA as safeguards of prosecutorial integrity.