CRIMINAL LAW: REVIEW – ANAUTHORISED STOPPING OF PROSECUTION

CRIMINAL LAW: REVIEW – ANAUTHORISED STOPPING OF PROSECUTION

In this matter, the accused persons were were charged with the offence of robbery with aggravating circumstances as defined in s 1 of the Criminal Procedure Act, 51 of 1977, as amended (the CPA). The accused pleaded not guilty on the charge and gave a plea explanation in terms of s 115 of the CPA. The matter was then remanded for trial. Thereafter, it was remanded for various reasons. On 10 January 2022, the public prosecutor informed the court that the complainant filed a withdrawal statement and refused to come to court. The prosecutor requested the court to deem the State’s case to be closed and to discharge the accused in terms of section 174 of the CPA. The magistrate acceded to the request, acquitted and discharged the accused in terms of section 174 of the CPA.

The matter was sent for special review by the Divisional Magistrate in terms of section 304(4) of the CPA and requested the High Court to set aside the section 174 discharge due to an irregularity described as a stopping of prosecution. It seems that there was no authorisation by the Prosecutor General (PG).

JANUARY J (USIKU J concurring) considered the matter and stated that, it was evident from the record of proceedings that the prosecutor did not inform the court a quo whether she had the required authorisation from the PG to stop the prosecution. Neither did the court a quo enquire whether the prosecutor has obtained such approval. As per The State v Samuel Ekandjo  CR 04/2010 (23.04.2010), unauthorised stopping of prosecution amounts to a nullity. The prosecutor has to either obtain the consent of the PG to stop the prosecution or proceed to lead evidence on the charge which was put to the accused.

In the result, the the closing of the State’s case and the accused’s subsequent acquittal in terms of section 174 were set aside, and the matter was referred back to the trial court with directions to proceed to trial if the prosecutor is unable to obtain the PG’s consent.

S v Esau NAHCMD 2 August 2022