ADDRESS BY ADV SHAUN K ABRAHAMS, NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS (NDPP) AT THE INTRODUCTION OF THE NEW NDPP BY THE HONOURABLE MINISTER OF JUSTICE AND CORRECTIONAL SERVICES, VICTORIA AND GRIFFITHS MXENGE BUILDING, PRETORIA, July 7 2015

INTRODUCTION

Honourable Minister of Justice & Correctional Services;

Deputy National Directors of Public Prosecutions;

Directors of Public Prosecutions;

Special Directors of Public Prosecutions;

Members of the National Prosecuting Authority;

Members of the media;

Ladies and Gentlemen,

Good Afternoon!

Re: APPOINTMENT

It is a great honour for me to be entrusted with the responsibilities of leading this all important institution in our country within the Justice and Crime Prevention Security Cluster (JCPS).

By appointing me to the position of National Director of Public Prosecutions, the President placed immense confidence and responsibility in me to deliver justice to the people of this country without fear, favour or prejudice.

This is certainly the greatest honour that could be bestowed on any career prosecutor.

RE: GRATITUDE

I am deeply heartened by all your confidence in me, and the continued messages of congratulations, well wishes, kind words and commitments of support.

I am also informed by my communication team that there was a flurry of supporting messages on the NPA facebook page after my appointment was announced, and the page received a record 18 thousand hits within a few days.

I endeavour to hold each and every one of you in the NPA to your commitments of support.

RE: BACKGROUND

As you know, I am a career prosecutor who came through the ranks from an administration clerk to a prosecutor.

I prosecuted my first case in March/April 1997 when I was merely 21 years old.

I am proud to say that I was part of an in-house mentoring programme in the NPA at the inception of my career.

A few months ago I thought I had reached the end of the road in my career as a prosecutor. I was ready to throw in the towel and embark on a different journey.

My glass however felt half full!!!

I had to be honest with myself and felt that I still had so much to offer the NPA and couldn’t just walk away.

I stayed.

OUR ROLES AS PROSECUTORS

Prosecutors play a crucial role in the administration of justice and are the proverbial cardinal gatekeepers of the criminal justice system. It is one of the highest callings – a noble profession of note.

We are bound by the Constitution, its values and ethos; and the Rule of law.

We are further guided by the Code of Ethics for Prosecutors and the Prosecutorial Guidelines.

We must also remain mindful of our obligations under the United Nations Guidelines on the Role of Prosecutors, adopted by the 8th United Nations Congress in the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August – 7 September 1990.

Which outlines our responsibilities to, inter alia, include:

(i) Instituting prosecutions (who, when, on what charges).

(ii) Guiding investigations, providing technical and legal guidance to investigating agencies, commonly referred to as prosecutor-guided investigations

(iii) Performing our duties fairly, consistently, expeditiously and with respect for the protection of human dignity and the upholding of human rights, thereby ensuring due process in the administration of justice, guided by Batho-Pele principles

(iv) Executing our responsibilities impartially.

(v) Protecting the public interest by being objective and paying due regard to all information, favourable or unfavourable to a case and/or to the advantage or disadvantage of an accused

(vi) Keeping matters confidential, considering victims’ concerns and advising them of their rights in accordance with the Declaration of Basic Principles of Justice for Victims and Abuse of Power

(vii) Paying due regard to the investigation and prosecution of, inter alia, grave violations of human rights and crimes recognised by international law, as criminalised domestically

(viii) Refusing to make use of evidence obtained through unlawful means and which constitutes the violation of a suspect’s fundamental human rights, and bringing the perpetrators of such abuse to justice.

We must at all times uphold the values, ethos, responsibilities of the office we have been entrusted with.

We must commit to uphold and protect the Constitution and the fundamental rights entrenched therein and enforce our laws without fear, favour or prejudice.

Prosecutors are first and foremost officers of the court.

Dr Silas Ramaite whom you all know reminded hereof almost daily over the last 12 years.

We are expected to exercise their duties without fear, favour or prejudice as administrators of justice in maintaining and/or restoring public confidence in the administration of justice.

We are required to co-operate with other stakeholders in the

criminal justice system, such as the police, courts, legal profession, government departments and institutions, domestically and internationally.

 The Constitution demands this of us.

RE: PROSECUTORIAL DISCRETION

How do we exercise our prosecutorial discretion?

The exercise of prosecutorial discretion has an impact on the criminal justice system in terms of its efficiency and is capable of destroying people’s lives, careers and reputations.

It is incumbent on each one of us to exercise such discretion responsibly with due cognisance of the rule of law, constitutional values and the integrity and responsibility of the office we held.

We are ultimately duty bound to assist the court in seeking the truth.

Prosecutors must refrain from falling in the following trap:

When prosecutors form a theory of guilt for a defendant, confirmation bias and belief perseverance can threaten their ability to adjust their thinking, even when confronted with evidence strongly challenging the accuracy of their theory. Psychological biases can lead prosecutors to favour evidence that confirms their theory, while ignoring or discrediting contradictory information. This phenomenon often leads to a “tunnel vision” mentality, where prosecutors and law enforcement focus all of their attention and efforts on building a case against a single suspect, often overlooking weaknesses in their case or leads pointing to other suspects. Tunnel vision is particularly dangerous when the prosecution’s theory is wrong, and the defendant is in fact innocent.’

John F Terzano, Joyce A McGee & Alanna D Holt, Improving prosecutorial accountability the justice project, 2009, 14

In Boucher v The Queen [1955] SCR 16 ((1955) 110 CCC 263) and which the Constitutional Court S v Shaik and Others 2008 (2) SA 208 (CC), para 67 , referred to, the following was said in reference to the purpose of a criminal prosecution and the role of a prosecutor:

‘It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: It should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of a prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of dignity, the seriousness and the justness of judicial proceedings.’

In S v Shaik and Others, supra, in reference to prosecutor-guided investigations, it was stated that:

‘The purpose of an investigator is to hand over as much evidence to the prosecutor as can be lawfully obtained. It is in the best interest of all, even that of the accused, for the prosecutor to have as much evidence available as possible in her or his position as the truth-seeker.’

RE: TRANSFORMATION/SKILLS TRANSFER/GENDER AND MENTORING INITIATIVES

The National Prosecuting Authority Act came into operation on 16 October 1998.

I am extremely fortunate to inherit an institution consisting of a very diverse and vastly experienced lawyers and administrators.

Many of you have worked tirelessly to deliver justice to society.

Many of you have contributed to the NPA reaching its set targets and in achieving a clean audit for the second year running.

I congratulate you on your sterling efforts which I assure you have not gone unnoticed.

But the work has only just begun.

Many of you may not know that Willie Hofmeyr is ordinarily the first lawyer to arrive at the VGM and the last to leave.

During one of our recent engagements Willie remarked that he is so pleased that the new NDPP works longer hours than he does.

I must add that Willie Hofmeyr sent me a message at around 3h30 on the morning of Friday, 3 July 2015, stating… ‘I think I beat you tonight!!!’

Willie will never know whether he did or not.

But that is the attitude and work ethic that we should aspire to.

We should always strive to be the best in our given positions or chosen vocations despite all the challenges we face.

Seasons come and seasons go!

So too will the challenges come to pass!

I want to leave the prosecutors with some food for thought!

How many times in your career, having appeared against eminent Senior Counsels, did an accused wish that you could be his/her legal representative instead of representing the State?

When you prepare for court have that in the back of your mind!

How much have we done since the dawn of democracy and the commencement of the NPA in respect of transformation initiatives, skills transfer and mentorship?

What type of legacy do we want to leave when we retire from this profession?

Are we building leaders of tomorrow or are we breaking them down to advance self-interests?

Are we affording our people enough opportunities and scope for development and growth?

I am a product of selfless mentoring.

I am a product of selfless skills transfer.

And yes, I am a product of opportunities afforded to me as a result of transformation initiatives during key moments in my career.

I made those opportunities count.

Do you?

RE: ELEPHANTS IN THE ROOM

There are a few unpleasant issues that we as an institution have to deal with.

We cannot shy away from it, nor can we shy away from our responsibilities.

In particular, although we have enjoyed many successes under challenging circumstances, the NPA has been in the media over the last two years for all the wrong reasons.

Much of it has been self-inflicted.

Without delving into the merits of any of the matters affecting the NPA, I can assure you that I have been briefed in respect of most of them and have scheduled engagements to be briefed in respect of others.

This is certainly not the time nor the place to venture any further therein.

This should not be construed as me taking a silent stance on these matters or issues.

I have met with my communication team and have engaged the Deputy National Directors of Pubic Prosecutions in this regard.

I appreciate that the public needs to be taken into confidence on a number of the issues through the media.

I, along with my Deputy National Directors of Public Prosecutions, Directors of Public Prosecutions, Special Directors, and Communication Team intend to engage the media regularly as a collective on issues relevant to the NPA and of public interest without compromising the proper administration of justice and the fair trial rights of accused.

Any announcement of such media engagement will be communicated to the media through my spokesperson Adv Luvuyo Mfaku or the Head: Communications, Ms Bulelwa Makeke.

One issue that I would like to speak of is the issue of camps in the NPA as alluded to in the media and conflated by senior members of the NPA.

We are lawyers, officers of the Court, and not politicians.

Under my watch and leadership, there is just one camp, the NPA camp, guided by the Constitution, the rule of law and the integrity of the office we hold, by ensuring an all embracing and inclusive identity.

We will project our institution positively, nationally and internationally.

There will be no room for any anti-NPA sentiments!

There certainly is no room for the abuse of prosecutorial powers and discretion.

RE: INFORMATION LEAKS/MEDIA LEAKS/NON-DISCLOSURE

We must be mindful that the integrity of this institution must be protected at all times.

That responsibility lies with all of us.

It is our institution which we must hold dearly, as the cornerstone of delivering justice to society.

It is extremely concerning to have observed, especially so over the last two years, how information is leaked to the media/public.

It can only be NPA officials. In most instances very senior NPA officials.

This kind of conduct cannot be condoned and clearly places the NPA into disrepute.

I take note of the relationships certain officials have with the media and other entities.

It is thus only appropriate for me today to remind NPA officials, past and present, of the provisions of Section 41(6) of the NPA Act and the MISS policy.

I invite you to familiarise yourself with these provisions.

In essence, these provisions require you to obtain my permission to disclose any information which came to your knowledge or the contents of any book, document or item which came into your possession in the performance of your functions

Of course there are exceptions.

I implore you not to place me in a position to use this section.

I will not hesitate to do so.

It will not be business as usual!

RE: CONCLUDING REMARKS

In conclusion, the core responsibility of the NPA is prosecutions. Do not abdicate on your responsibilities, duties and functions.

That responsibility is largely dealt with on a daily basis by NPS, along with other business units such as PCLU, SCCU and SOCA, which must conduct their work in consultation with DPP’s in whose physical jurisdiction such matters resides.

It is incumbent on all the support structures to the core responsibilities of prosecutions to provide sleek, efficient and effective support.

These include the Legal Affairs Division (LAD), Corporate Services, the Asset Forfeiture Unit (AFU) and the Office for Witness Protection (OWP).

Asset Forfeiture and Witness Protection are inherent in many prosecutions and their results speak for themselves. Their work too must be exercised in consultation with DPP’s.

The support structures must do their utmost to make the lives of prosecutors easier to fulfil their core responsibilities.

Corporate Services have remarkably achieved a clean audit over the last two financial years.

The hard work of the support staff that contributed to this achievement has to be commended.

Let us also no forget to extend a warm gratitude to the cleaning staff and security here at the VGM Building and at other NPA offices throughout the country and to CFM who accommodates us here at the VGM. We off course pay them handsomely.

If there is a legacy that I would like to leave in the immediate future and during my term in office, it would be the following:

(i) To have brought stability to the NPA;

(ii) To regain and entrench the staff’s confidence in the leadership of the institution;

(iii) To regain and entrench the staff’s confidence in the NPA;

(iv) Similarly, to regain and entrench the public confidence in the leadership of the NPA, the NPA as an institution and the administration of justice;

(v) To enhance stakeholder engagements and cooperation with key departments in the Justice and Crime Prevention Security Cluster (JCPS) and other stakeholders, both domestically and internationally.

(vi) To enhance mentoring, transfer of skills and transformation initiatives;

(vii) To build the NPA into an institution of excellence and choice;

(viii)  And of course to maintain a clean audit.

I cannot do this alone.

I need each and every one of you to commit to this journey which we will walk together.

After all the NPA is our institution.

It is only in this way that the integrity of the security of the Republic, the public’s confidence in the NPA and the administration of justice can be guaranteed and a significant contribution made to peace and security.

I once again reassure you, as I have done last week, that I have the deepest commitment to lead the NPA to a better tomorrow in its pursuit for justice and to make the Republic a safer place for all.

I am a prosecutor…and will remain a prosecutor at heart!

A people’s lawyer!

I Thank you!

Issued by the NPA, July 7 2015