The Constitution of the Republic of South Africa Act (No. 108 of 1996) is the supreme law of the country and binds all legislative, executive and judicial organs of the state at all levels of government (Gopal, 2008:171). Thus, the principal organs to ensure the application of the law in South Africa are vested on the country’s courts. In terms of Section 165(1) of the Constitution,
“the judicial authority of the Republic shall vest in the courts established by this Constitution and other law. In terms of Section 165 (2) of the Constitution the courts are independent and only subject to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice”. The judiciary is thus required to be independent and impartial and subject only to the Constitution and the law. In this context, Section 34 of the Constitution provides that
“every person shall have the right to have justifiable disputes settled by a court of law or, where appropriate, another independent, impartial forum. It is, therefore, the constitutional right of a person to seek relief in the courts” (Chetty & Fouché, 2007b:15-16).
In light of the above, the Durban NPA DPP STU normally has to make a finding concerning the gathered evidence by the Durban SAPS DPCI. This finding determines the presence of evidence or non-existence of certain facts before pronouncing on the rights, duties and liabilities of the parties engaged in a dispute. In this process of litigation and adjudication, the proof of facts is regulated by the law of evidence, which is a branch of the law of procedure (Schwikkard & Van der Merwe, 2017:3).
2.7.1 Types of courts
Bekker, et al. (2005:4) state that criminal procedure regulates, among other things, the duties and powers of the criminal courts and prosecutorial authorities; the duties and powers of the police, especially in the course of the investigation of a crime; and the rights of suspects and arrested and accused persons. This process must accommodate and protect the rights and interests of victims. In terms of Section 165 of the Constitution, “the judicial authority in South Africa is vested in the courts, which are independent and subject only to the Constitution and the law. No person or organ of State may interfere with the functioning of the courts, and an order or decision of a court binds all organs of State and persons to whom it applies.”
52
The courts are responsible for the administration of prosecutions and constitutional development.
Section 166 of the Constitution lists the different courts that operate in South Africa. These courts are the:
• Constitution Court;
• Supreme Court of Appeal;
• High Courts, including any high court of appeal that may be established by an Act of Parliament to hear an appeal from a High Court;
• Magistrates’ Courts; and
• Any other court established or recognised in terms of an Act of Parliament, including any court of a status similar to either a High Court or a Magistrates’ Court (Fouché, 2002:16).
Stevens and Cloete (2002:4) reveal that although a distinction can be made between different types of courts in South Africa, “the functions of all these courts remain the same, namely to accord justice to everybody, to punish the guilty, to safeguard the innocent against further prosecution by acquitting them, and to satisfy society’s sense of justice by impartial action.”
While regarding the evolution of private vengeance to public prosecution, most modern states perceive the commission of crime as a violation of the public interest. Punishment is in principle sought by the courts on behalf of society, and only in an incidental way in respect of an individual who has suffered some personal harm or damages as a consequence of a crime. Thus, states should perform the necessary prosecutorial functions in those circumstances where an identifiable victim clearly suffered some personal harm to his/her legitimate interests.
Any criminal court must prove the case of the prosecution ‘beyond reasonable doubt’. The prosecution will be unsuccessful if it fails to meet this standard of proof. However, in a civil case the plaintiff will only achieve success if the lesser standard of proof is met upon a ‘balance of probabilities’ (Joubert, 2015:50 & 51).In contrast, the decision to lay a charge (for example by NPA DPP STU officials who act independently in bringing specialisation to the investigation, prosecution and adjudication of commercial crimes such as personal income tax fraud), unlike the decision to arrest, is not a unitary decision made at a readily identifiable time by a specified individual; rather, it comprises a process consisting of a series of interrelated decisions.
53
The steps in this process do not always occur in the same sequence. Most often the decision is made after a suspect has already been taken into custody or is under investigation (researcher’s emphasis). In some instances, the effective decision is made when the police, For example;
Durban SAPS DPCI officials (researcher’s emphasis) decide not to ask the prosecutor to charge, but release a suspect instead. Of greater significance are the decisions made by prosecutors, acting through their assistants, whether to charge suspects already in custody or under investigation in response to requests made by the police that they do so (Miller, 1970:11). To this purpose, “the police remain firmly the central figures in the prosecution process and if weak cases limp forward to court, this can primarily be attributed to a decision that has been taken by police officers, not by their legal advisers. The police are responsible for gathering evidence, interviewing suspects and witnesses and collecting forensic evidence in assembling the prosecution’s case” (McConville & Baldwin, 1981:95).
In placing the topic under investigation in context, the work of the NPA DPP STU in Durban mainly focuses on giving practical meaning and effect to the presented evidence by responsible investigators of the SAPS DPCI. This evidence is governed by ‘the law of evidence’ which provides proof of facts in a court of law and forms part of the machinery that makes substantive law effective. Its main function is to determine what facts are legally receivable (i.e., admissible) to prove the facts in issue and also to determine in “what manner evidence should or may be adduced; what evidence may lawfully be withheld from a court of law; what rules should be taken into account in assessing the weight or cogency of evidence; and what standard of proof should, in a given situation, be satisfied before a party bearing the burden of proof can be successful” (Schwikkard & Van der Merwe, 2017:4).
54