Title page for ETD etd-06082011-131102

Document Type Master's Dissertation
Author Luphondo, Matric
URN etd-06082011-131102
Document Title Analysis of prosecutorial discretion
Degree LLM
Department Public Law
Advisor Name Title
Prof P A Carstens Supervisor
  • prosecution service
  • democracy
  • fair administration of justice
  • prosecutorial decision-making
Date 2011-04-11
Availability unrestricted

This research examines the question whether or not the exercise of the prosecutorial discretion is kosher, by which is meant whether its functional integrity is intact and free from interference.

An investigation, with particular reference to various factors that come into play in prosecutorial decision-making, revealed evidence that suggests degree of undue influence in prosecutorial decision-making. The researcher contends that there is sufficient evidence to infer a causal link between the prevailing climate of uncertainty about the questions informing the research and the manifest lack of credibility of this very important function.

There seems to be a lack of recognition for and appreciation of the significant role played by the prosecution service in promoting democracy by ensuring the fair administration of justice.

The fact that the prosecution service seems to be a regular target for political interference despite legislative guarantees of its integrity and independence as laid down in the Constitution and the NPA Act suggests an underlying mentality that fails to appreciate or flouts the essential distinction between party and state. Prosecutors also take an oath of office or affirmation before assuming duties in this capacity and this also does not seem to be sufficient guarantee to make their decision making kosher and to avoid any trace of suspicion.

In the end some remedial legislative and administrative measures are recommended with a view to restoring public confidence in the prosecution service. The suggestion is made to investigate some of the questions raised in the research, for instance questions such as why the interest in the prosecution service and not the judiciary, and why the current mechanisms aimed at guaranteeing its independence seem not to be sufficient.

2011, University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria.

Please cite as follows:

Luphondo, M 2011, Analysis of prosecutorial discretion, LLM dissertation, University of Pretoria, Pretoria, viewed yymmdd < http://upetd.up.ac.za/thesis/available/etd-06082011-131102 / >


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