30 April 2022 13:00 by Merilyn Kader
In S v Zuma and Another  1 All SA 533 (KZP), ‘title to prosecute’ - the test in respect of the apprehension of bias in a prosecutor does not apply to a judicial officer. Other grounds apply for a substantive application.
By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.
Criminal law and procedure - Special plea in criminal trial: After both accused in S v Zuma and Another  1 All SA 533 (KZP) pleaded not guilty to an array of charges, the first accused (Mr Zuma) raised a special plea in terms of s 106(1)(h) of the Criminal Procedure Act 51 of 1977, contending that the lead prosecutor of the prosecuting team representing the state, Mr Downer, had no title to prosecute as contemplated in s 106(1)(h), and should be removed as the prosecutor in the case.
It was held by Koen J, that the procedure for the adjudication of the special plea had to be addressed. The interests of justice demanded that the special plea be dealt with as expeditiously as possible. It made good sense for the special plea to be tried by the exchange of affidavits. An oral hearing was not required, neither on the wording of s 106(1)(h), s 108, or the law generally.
Before dealing with the interpretation of the phrase ‘title to prosecute’, the court considered the numerous complaints raised by Mr Zuma in support of his special plea. Emphasising that a judgment must be confined to the issues properly before the court, the court confirmed that the issue for determination was the special plea that Mr Downer allegedly lacked title to prosecute, as provided in s 106(1)(h) of the Criminal Procedure Act, and nothing more.
Mr Zuma’s argument was that the word ‘title’ should be given a wider meaning than a prosecutor’s standing or authority to prosecute, to include lack of objectivity and independence, bias, and whether the prosecutor acted in a manner which might violate Mr Zuma’s rights to a fair trial.
The court endorsed case authority, by which it was in any event bound, stating that the word ‘prosecutor’ in s 106(1)(h) refers not to the state, but to the person who acts as prosecutor in the court. The court interpreted ‘title to prosecute’ as being a plea relating to the standing of the prosecutor, and nothing wider.
In adversarial criminal proceedings, such as ours, it is inevitable that prosecutors will be partisan. Their role in criminal prosecutions makes it inevitable that they will be perceived to be biased. The test in respect of the apprehension of bias of a prosecutor is not that which applies to a judicial officer. It is not a given that a perception of bias held against a prosecutor will lead to an accused not having a fair trial. If an accused believes the prosecutor assigned to his case will not exercise, carry out or perform their powers, duties, and functions in good faith, impartially and without fear, favour or prejudice, or that the prosecutor is an essential witness in the case, then the accused may bring a substantive application to the court for an order that the prosecutor be removed and replaced. What the accused cannot achieve, however, is to seek such removal by the device of entering a special plea in terms of s 106(1)(h) of the Act.
Mr Zuma having not established that Mr Downer lacked title to prosecute, the special plea was dismissed.
Merilyn Rowena Kader
Legal Editor at LexisNexis