Yoshen Naidoo and Others v The National Director of Public Prosecutions and Others

Four appellants were arrested in November 1997 and charged with several counts of robbery of motor vehicles. Their criminal trial was pending in the Regional Court at Parow and later at Bellville. On 24 August 2000, Regional Magistrate Mr Botes struck the matter from the roll pursuant to s 342A(3)(c) of the Criminal Procedure Act 51 of 1977 (CPA) after finding unreasonable delay caused by the State. He ordered that prosecution could not be resumed or instituted de novo without written instruction of the attorney-general. On 20 November 2000, Ms Susanna Galloway, a senior State advocate in the office of the Director of Public Prosecutions (DPP), Cape of Good Hope Provincial Division, issued a certificate purporting to authorise resumption of prosecution. The prosecution was resumed in April 2001 based on this certificate. The appellants challenged the validity of the certificate, arguing it was not properly authorised as required by s 342A(3)(c) of the CPA.

• Whether the Director of Public Prosecutions at the seat of a High Court is empowered to issue the written instruction to resume or institute de novo a prosecution under s 342A(3)(c) of the CPA read with s 45(a) of the National Prosecuting Authority Act 32 of 1998 (NPAA)
• Whether the certificate issued by Ms Galloway constituted a valid written instruction by the DPP
• Whether Ms Galloway and/or Mr Niehaus (Deputy Director) had the authority to issue the written instruction contemplated in s 342A(3)(c) of the CPA
• Whether the transitional provisions in s 45 of the NPAA meant only the National Director of Public Prosecutions could issue such instructions

1. The appeal is upheld. 2. The finding of the court below that the certificate dated 20 November 2000 was properly issued is set aside and replaced with a finding that the written instruction dated 20 November 2000 was issued without the requisite authority and is therefore set aside. 3. The order referring the matter back to the Regional Court for trial is set aside.

1. References to 'attorney-general' in s 342A(3)(c) of the CPA must be interpreted in light of s 45 of the NPAA to mean Directors of Public Prosecutions appointed at the seats of High Courts, who are the equivalents of erstwhile attorneys-general. 2. The power to issue written instructions to resume or institute de novo prosecutions under s 342A(3)(c) of the CPA is reserved to higher authorities (Directors or Deputy Directors of Public Prosecutions) and cannot be delegated to ordinary prosecutors. 3. This power must be exercised personally by the Director or Deputy Director, not merely under their supervision or with their vague approval after the fact. 4. The purpose of requiring high-level authorization is to ensure proper oversight, accountability, and protection of accused persons' constitutional rights, particularly where unreasonable delay has already been found, and to prevent abuse by prosecutors who may themselves have caused the delay. 5. Where a prosecutor makes the decision to issue a written instruction to resume prosecution, that instruction is invalid even if the prosecutor consulted with or worked under the supervision of higher authorities, unless those higher authorities actually made or explicitly authorized the decision.

The Court observed that if prosecutions are struck from the roll on a daily basis in Magistrates' courts due to unreasonable delays, this suggests systemic problems in the prosecution system rather than justifying a lower standard of authorization. The Court commented that constitutional norms of accountability and transparency dictate that delays resulting in orders under s 342A(3)(c) should be the exception rather than the rule, and that prosecution authorities should take greater care in conducting prosecutions in accordance with constitutional norms. The Court did not need to decide whether Deputy Directors have the power to issue written instructions under s 342A(3)(c), as the facts showed Ms Galloway (a prosecutor) made the decision. The Court noted the NDPP's oversight power under s 179(5)(c) of the Constitution and s 22(2)(c) of the NPAA to review decisions to prosecute or not prosecute after consulting the relevant Director, which provides an additional layer of accountability.

This case is significant in South African criminal procedure law as it clarifies the authority to resume or institute de novo prosecutions after cases are struck from the roll due to unreasonable delay under s 342A(3)(c) of the CPA. The judgment establishes that under the National Prosecuting Authority Act, Directors of Public Prosecutions at High Court seats possess the authority previously held by attorneys-general to issue written instructions for resumption of prosecutions. Importantly, the case affirms that this power cannot be delegated to ordinary prosecutors, as it must be exercised at a higher level of authority to provide proper oversight and prevent abuse. The judgment protects the constitutional right to trial without unreasonable delay (s 35(1)(d) of the Constitution) and promotes accountability in the prosecution system. It prevents situations where prosecutors who caused delays could themselves authorize resumption of prosecutions. The case also clarifies the interpretation of s 45 of the NPAA and the transition from the Attorney-General Act regime to the single national prosecuting authority structure.