Porritt & another v The National Director of Public Prosecutions & others

The appellants were indicted on more than 3000 counts involving contraventions of tax, company and exchange control legislation, as well as racketeering and fraud. At the commencement of their trial in the South Gauteng High Court, they raised a plea under s 106(1)(h) of the Criminal Procedure Act 51 of 1977, contending that the prosecutors, Advocates Coetzee and Ferreira, lacked title to prosecute. The challenge was based on alleged non-compliance with s 38 of the National Prosecuting Authority Act 32 of 1998, and on alleged infringement of the appellants’ fair trial rights under s 35(3) of the Constitution due to an apprehension of bias arising from the prosecutors’ prior involvement with SARS-related investigations and litigation linked to the appellants. The High Court rejected the lack-of-title argument but upheld the objection based on perceived bias, ordered the removal of both prosecutors, and refused to acquit the appellants. The appellants appealed against the refusal to acquit, while the NDPP reserved questions of law concerning the correct test for removal of a prosecutor.

The appeal by the appellants was dismissed. The reserved question of law was answered in favour of the State. The High Court’s order removing Advocates Coetzee and Ferreira was set aside and replaced with an order dismissing the application for their removal. The matter was remitted to the High Court to proceed with the criminal trial. Each party was ordered to pay its own costs.

This judgment clarifies South African law on prosecutorial bias and fair trial rights by distinguishing the role of prosecutors from that of judicial officers. It confirms that the test for judicial recusal does not apply to prosecutors and that removal of a prosecutor depends on whether their conduct results in substantive unfairness. The case also affirms that a successful challenge to prosecutorial conduct does not automatically entitle an accused to an acquittal, thereby preventing abuse of s 106 of the CPA and safeguarding the integrity of prosecutions.