Naidoo and Others v National Director of Public Prosecutions and Others

The four appellants were arrested in November 1997 and charged with multiple counts of armed robbery of motor vehicles. Their trial in the Regional Court was delayed for almost two years. In August 2000, a regional magistrate struck the matter from the roll under s 342A(3)(c) of the Criminal Procedure Act 51 of 1977 due to unreasonable delay attributable to the State, and ordered that the prosecution could not be resumed or instituted de novo without the written instruction of the attorney-general. In November 2000, a senior state advocate, Ms Galloway, issued a written instruction purporting to authorise the resumption or reinstitution of the prosecution. The prosecution was thereafter resumed. The appellants challenged the validity of this written instruction on the basis that it was not issued by the National Director of Public Prosecutions or a properly authorised Director of Public Prosecutions.

The appeal was upheld. The Supreme Court of Appeal set aside the finding of the High Court and declared that the written instruction dated 20 November 2000 authorising the resumption or institution de novo of the prosecution was issued without the requisite authority and was therefore invalid. The order referring the matter back to the Regional Court for trial was also set aside.

This case clarifies the interpretation of s 342A(3)(c) of the Criminal Procedure Act in the constitutional era and confirms that the power to reinstitute a prosecution after it has been struck off for unreasonable delay is reserved for Directors of Public Prosecutions, not prosecutors. It underscores the importance of safeguarding the fair trial rights of accused persons and prevents the abuse of prosecutorial power through improper delegation.