THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

CASE NO: 181/2014
Reportable

In the matter between:
SYLLA MOUSSA

APPELLANT
and
THE STATE

FIRST RESPONDENT
THE MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT

SECOND RESPONDENT

Neutral Citation:
Moussa v S (181/2014) [2015] ZASCA 61 (14 April 2015).
Coram:
Navsa ADP, Ponnan, Mhlantla, Mbha & Zondi JJA
Heard:

5 March 2015
Delivered:

14 April 2015
Summary:
Private counsel engaged by National Prosecuting Authority in terms of
s 38 of the National Prosecuting Authority Act 32 of 1998 to conduct prosecution on
fraud charges – prosecution requiring commercial expertise – challenge to prosecutor‟s
authority – constitutionality of s 38 – challenge on basis that it impinged on
constitutional imperative of prosecutions without fear, favour or prejudice – ultimately
restricted to a challenge based on the fact that s 38 does not provide for an oath as
required for permanent members of the National Prosecuting Authority – held that
private counsel are required to conduct themselves within the structure of the Act – and
that they conduct prosecutions under the control and supervision of the most senior

members of the NPA – s 38 held not to be unconstitutional.

______________________________________________________________________
ORDER
______________________________________________________________________

On appeal from: Gauteng Local Division of the High Court, Johannesburg (Campbell
AJ sitting as court of first instance):

The following order is made:

The appeal is dismissed with costs.

______________________________________________________________________

JUDGMENT
______________________________________________________________________
Navsa ADP (Ponnan, Mhlantla, Mbha & Zondi JJA concurring):

[1] This appeal, with the leave of the court below, concerns the constitutionality of
s 38 of the National Prosecuting Authority Act 32 of 1998 (the NPA Act). The appellant,
Mr Sylla Moussa, is a Guinean national who, during June 2006, was charged with 16
counts of fraud, alternatively, three counts of theft and three counts of money laundering
in terms of the provisions of the Prevention of Organised Crime Act 121 of 1998 (the
POCA). The preamble to the indictment reflects the following: The appellant was in
control of two accounts held by corporate entities with Absa Bank. The accounts
labelled „credit accounts‟ bore a no-risk status which meant that the appellant could
immediately make withdrawals against cheque deposits into the account. Electronic
transfers can only be made from such an account if sufficient funds exist in that
account, even if only by way of cheque deposits. The appellant, so it is alleged
conducted „cross-fire fraud‟ which is described in the preamble to the indictment as
follows:
„1.10.1. No value cheques or cheques of insufficient value (“facilitation cheques”) would be
deposited into the beneficiary bank account at ABSA and drawn against the drawer‟s account at
ABSA.
1.10.2. The lack of funds in the drawer‟s account to support the amounts depicted as per face
value of the facilitation cheques, resulted in an artificial credit being created in the beneficiary
bank account.
1.10.3. The drawing and depositing of the facilitation cheques would be recorded on the bank
statements of the drawer‟s and beneficiary bank accounts as debit and credit entries
respectively.
1.10.4. From the beneficiary bank account, the accused would then, on or about the day that the
cheques were deposited or shortly thereafter, remit via electronic banking transfer a similar
amount (“contra amount”) back to the drawer‟s bank account.

1.10.5. When remitting the contra amount back to the drawer‟s account, the initial beneficiary
account would be debited and the drawer‟s account credited.
1.10.6. The recording of the facilitation cheques on the drawer‟s bank account would however
only happen after depositing the cheques into the beneficiary bank account, which would be on
the same day or shortly after the contra amount is remitted, creating the impression of
availability of funds in the drawer‟s account when the facilitation cheques were recorded and/or
debited.
1.10.7. The balances and credits recorded on the respective bank statements of the beneficiary
and drawer bank account would therefore not be represented by genuine and/or sufficient
underlying funds created in bona fide manner in the ordinary course of business, but such
balances and credits would record mere artificial or illusory balances of a temporary nature.
1.10.8. Such credits and balances were designed to mislead ABSA into accepting and/or
believing that accused and/or the corporate entities were conducting bona fide transactions
and/or are involved in genuine and bona fide arms length business transactions and/or doing
well financially and that sufficient underlying funds existed to honour the facilitation cheques and
subsequent contra payments.‟

[2] For present purposes it is not necessary to deal with the particulars relating to
the alternative charges of fraud, theft or the charges related to the contraventions of the
POCA which are all founded on the same allegations. The amount ABSA Bank is said
to have lost as a result of the appellant‟s alleged conduct appears in the indictment,
namely, R41 329 188.37.

[3] Because of the nature of the commercial transactions in relation to which the
appellant was charged, the National Prosecuting Authority (the NPA) took the view that
it required the skills of a specialised prosecutor and thus engaged the services of Mr
Zirk Pansegrouw (Pansegrouw), an advocate in private practice and member of the
Pretoria Bar and a former prosecutor. In doing so, the NPA purported to act in terms of
s 38 of the NPA Act, which reads as follows:
„(1) The National Director may in consultation with the Minister, and a Deputy National Director
or a Director may, in consultation with the Minister and the National Director, on behalf of the
State, engage, under agreements in writing, persons having suitable qualifications and
experience to perform services in specific cases.

(2) The terms and conditions of service of a person engaged by the National Director, a Deputy
National Director or a Director under subsection (1) shall be as determined from time to time by
the Minister in concurrence with the Ministers of Finance.
(3) Where the engagement of a person contemplated in subsection (1) will not result in financial
implications for the State –
(a) the National Director; or
(b) a Deputy National Director or a Director, in consultation with the National Director, may, on
behalf of the State, engage, under an agreement in writing, such person to perform the services
contemplated in subsection (1) without consulting the Minister as contemplated in that
subsection.
(4) For purposes of this section, “services” include the conducting of a prosecution under the
control and direction of the National Director, a Deputy National Director or a Director, as the
case may be.‟

[4] After his arrest in June 2006, the appellant appeared in the Regional Court,
Johannesburg and was released on R100 000 bail. During March 2008, his trial was
transferred to the Gauteng Local Division, Johannesburg. Faced with Pansegrouw as
the prosecutor appellant‟s legal representative requested documentation to allay the
appellant‟s concerns about Pansegrouw‟s authority to conduct the prosecution. After the
documentation was supplied and scrutinised, the appellant correctly concluded that the
oath in terms of s 32(2) of the NPA Act had not been taken by Pansegrouw. I interpose
to set out the relevant part of that subsection:
„(a) A National Director and any person referred to in section 4 must, before commencing to
exercise, carry out or perform his or her powers, duties or functions in terms of this Act, take an
oath or make an affirmation, which shall be subscribed by him or her, in the form set out
below . . .
. . .
(b) Such an oath or affirmation shall –
(i) . . .
(ii) in the case of a prosecutor, be taken or made before the Director in whose office the
prosecutor concerned has been appointed or before the most senior judge or
magistrate at the court where the prosecutor is stationed,

who shall at the bottom thereof endorse a statement of the fact that it was taken or
made before him or her and of the date on which it was so taken or made and
append his or her signature thereto.‟

[5] Section 4 sets out the composition and hierarchical structure of the National
Prosecuting Authority as follows:
„The prosecuting authority comprises the –
(a) National Director;
(b) Deputy National Directors;
(c) Directors;
(d) Deputy Directors; and
(e) Prosecutors.‟
Prosecutor is defined as follows:
„“prosecutor” means a prosecutor referred to in section 16(1)‟.
Section 16(1) in turn provides:
„(1) Prosecutors shall be appointed on the recommendation of the National Director or a
member of the prosecuting authority designated for that purpose by the National Director, and
subject to the laws governing the public service.‟

[6] Having regard to the fact that at that stage Pansegrouw had not taken the oath
provided for in s 32(2) of the NPA Act, the appellant gave notice in terms of s 106(3),
read with s 106(1)(h) of the Criminal Procedure Act 51 of 1977 (the CPA), challenging
Pansegrouw‟s authority to prosecute,1 because he had not taken the oath provided for
in s 32(2) of the NPA Act. The appellant launched an application in the Gauteng Local
Division in which he sought an order: (a) that Pansegrouw had no authority to prosecute
him; (b) that his trial was unfair and (c) for a permanent stay of his prosecution.

1 Section 106(3) reads as follows:
„An accused shall give reasonable notice to the prosecution of his intention to plead a plea other than the
plea of guilty or not guilty, and shall in such notice state the ground on which he bases his plea: Provided
that the requirement of such notice may be waived by the attorney-general or the prosecutor, as the case
may be, and the court may, on good cause shown, dispense with such notice or adjourn the trial to
enable such notice to be given.‟
Section 106(1)(h) provides:
„(h) that the prosecutor has no title to prosecute.‟

[7] That application came before Mailula J in the Gauteng Local Division. An
exchange ensued between Mailula J and appellant‟s counsel, during which the judge
expressed reservations about whether a prosecutor appointed in terms of s 38 of the
NPA Act was required to take an oath. That view appeared to be shared by appellant‟s
counsel, who consequently sought a postponement in order to challenge the
constitutionality of s 32(2) of the NPA Act, ostensibly because it did not provide for
counsel appointed from outside of the NPA to take the oath provided for in that section.
The original notice of motion was amended and the second respondent, the Minister of
Justice and Constitutional Development (the Minister) was joined, as a party, as
required by Uniform rule 10A.2 Before the merits of the case were addressed, the
appellant‟s legal representative was asked by Mailula J whether the appellant would
abide Pansegrouw taking the prescribed oath before the trial commenced. Since the
appellant‟s attitude was that it was the taking of the prescribed oath that was
foundational to prosecutorial independence, one would have thought that the
suggestion that Pansegrouw would take the oath would put paid to the appellant‟s
objections to him being the prosecutor. Alas, the appellant changed tack and chose,
instead, to challenge the constitutionality of s 38 of the NPA Act, which as reflected in
paragraph 3 above, enables the engagement of persons outside of the NPA to perform
prosecutorial services in specific cases.

[8] Thus, the appellant launched an application seeking an order declaring s 38 to
be unconstitutional on the basis that it permitted the appointment of a prosecutor
outside the National Prosecuting Authority‟s normal staff complement and therefore did
not give effect to the constitutional principle enshrined in s 179(4) of the Constitution of
the Republic of South Africa (the Constitution), that requires the prosecuting authority to

2 Uniform rule 10A provides:
„If any proceedings before the court, the validity of a law is challenged, whether in whole or in part and
whether on constitutional grounds or otherwise, the party challenging the validity of the law shall join the
provincial or national executive authorities responsible for the administration of the law in the proceedings
and shall in the case of a challenge to a rule made in terms of the Rules Board for Courts of Law Act,
1985 (Act No. 107 of 1985), cause  a notice to be served on the Rules Board for Courts of Law, informing
the Rules Board for Court of Law thereof.‟ Rules regulating the Conduct of Proceedings of the Several
Provincial and Local Divisions of the Supreme Court of South Africa GN 48 of 1965.

exercise its functions without fear, favour or prejudice. The State as prosecuting
authority and the Minister opposed the application.

[9] The application, in amended form, was heard by Campbell AJ. Three years
before that application was heard and subsequent to the appearance before Mailula J,
Pansegrouw had in fact taken an oath to act „without fear, favour or prejudice‟. The
dispute before Campbell AJ was narrowed to the constitutionality of s 38 on the basis
set out in the preceding paragraph.

[10] Campbell AJ took into account that s 38 of the NPA Act, in contradistinction to
s 32(2)(a), did not provide for the taking of an oath. The learned judge reasoned that the
starting point of the enquiry was s 179(4) of the Constitution, which dictated that
national legislation should provide for the prosecuting authority to act without fear,
favour or prejudice. This led Campbell AJ to consider the composition of the
„prosecuting authority‟ and in turn to s 179(1) of the Constitution, which provides as
follows:
„(1) There is a single national prosecuting authority in the Republic, structured in terms of an Act
of Parliament, and consisting of –
(a) a National Director of Public Prosecutions, who is the head of the prosecuting authority, and
is appointed by the President, as head of the national executive; and
(b) Directors of Public Prosecutions and prosecutors as determined by an Act of Parliament.‟
This, of course, must be read with the provisions of s 4 of the NPA Act as set out in
paragraph 5 above, which sets out the hierarchical structure of the NPA.

[11] Campbell AJ considered that when persons are engaged as prosecutors in terms
of s 38 of the NPA Act, they can hardly be regarded as free agents. In his view, they
were subject to the control and direction of senior officers of the NPA, within the
structure of the NPA Act. The court below held that persons appointed in terms of s 38
were „prosecutors‟ in the normal sense of the word, but not necessarily as contemplated
in certain other sections of the NPA Act. The court reasoned that Pansegrouw was
obliged to carry out his functions as a prosecutor in the manner contemplated by
s 179(4) of the Constitution. Section 32 requires permanently appointed prosecutors to

take an oath of office that they will carry out their duties in the prescribed manner. The
absence of an oath in s 38 does not detract from the manner in which private counsel
appointed in terms of the NPA Act are required to perform their duties. The following
paragraphs of the judgment set out in succinct form the reasoning and conclusions of
the court below:
„19. To conclude: section 38 of the Act, on this construction, simply authorises the employment
of, inter alia, ad hoc prosecutors to carry out specific and limited tasks on behalf of the NPA, but
does not specify their constitutional duties because such ad hoc prosecutors are part of the
prosecuting authority and their constitutional duties are set out in section 32 of the Act.
20. It therefore follows that in my view section 38 of the Act is not unconstitutional and that the
application, as currently framed, must fail.‟
The court below dismissed the application with costs. It is against that order and the
findings referred to above that the present appeal is directed.

[12] In written heads of argument it was contended on behalf of the appellant that
s 38 of the NPA Act is inconsistent with the Constitution in that it does not specifically
provide that such persons should conduct themselves without fear, favour or prejudice
when prosecuting – the latter qualities being the hallmark of prosecuting integrity in this
country. Before us counsel on behalf of the appellant, when pressed about the precise
ambit of the appellant‟s case, stated that he was contending that s 38 of the NPA Act
was unconstitutional because it did not compel „outside counsel‟ to take the oath as
prescribed for permanent members of the prosecution services by s 32 of the NPA Act.
As I understood the submission, it was contended that it is the taking of the oath that is
foundational to the independence of a prosecutor.

[13] The engagement of persons who have specialised skills, to assist in
prosecutions, is not statutorily novel. This emerges from a brief review of legislation
over the last few decades.3

3 See Harksen v DPP, Cape 1999 (4) SA 1201 (C) and The Investigating Directorate: Serious Economic
Offences v Hyundai Motor Distributors (Pty) Ltd; in re Hyundai Motor Distributors (Pty) Ltd v Smit NO
2000 (10) BCLR 1079 (CC), where transition from former dispensation is discussed.

[14] Prior to the now repealed Attorney-General Act 92 of 1992 (the AGA), which
commenced on 31 December 1992, the CPA provided for prosecutions (ss 2-5) and the
Attorney-General was the prosecuting authority on behalf of the State. Section 4 of the
CPA used to provide that an Attorney-General may, in writing:
„(a) delegate to any person, subject to the control and directions of the attorney-general,
authority to conduct on behalf of the State any prosecution in criminal proceedings in any court
within the area of jurisdiction of such attorney-general, or to prosecute in any court on behalf of
the State any appeal arising from criminal proceedings within the area of jurisdiction of such
attorney-general.‟

[15] Section 2 of the AGA provided for the appointment of an Attorney-General by the
State President in respect of each provincial division and of the Witwatersrand Local
Division of the Supreme Court of South Africa. Section 6(a) of the AGA read as follows:
„6. An attorney-general may, in respect of the area for which he has been appointed, in writing –
(a) delegate to any person who has the right to appear in any court in terms of the Right of
Appearance in Courts Act, 1995 (Act No. 62 of 1995), subject to the control and directions of the
attorney-general, authority to conduct on behalf of the State any prosecution in criminal
proceedings in any court within the area of jurisdiction of such attorney-general, or to prosecute
in any court on behalf of the State any appeal arising from criminal proceedings within the area
of jurisdiction of such attorney-general.‟
The NPA Act repealed the AGA and ss 2-5 of the CPA which previously dealt with the
prosecuting authority.

[16] In S v Tshotshoza 2010 (2) SACR 274 (GNP), where the propriety of private
funding for a prosecution was discussed and decided, the court, considering s 38 of the
NPA Act, said the following:
„[18] It has not been argued that s 38 of the Act or any portion thereof is unconstitutional. It is
difficult to conjure up possible arguments for such a contention. After all, the Constitution
acknowledges that there is crime and that criminals are to be prosecuted and punished, and
that for this purpose there has to be a prosecuting authority which has to take the necessary
initiative in respect of the institution of prosecutions and the fulfilment of all necessary steps
incidental thereto. The detail is to be enacted in specific legislation and has been enacted in

terms of the Act. It is a prerequisite that prosecutions must be fair and must not violate an
accused‟s right to a fair trial in terms of s 35(3) of the Constitution.
[19] All over the world, outside prosecutors are engaged to prosecute on behalf of the State.
There cannot be objection in this country to the engagement of outside prosecutors in specific
cases. There are many reasons why it may become necessary for the NPA to engage outsiders.
One thinks of a shortage of staff or of staff with the necessary expertise and experience to
prosecute in particular cases.‟4

[17] In Tshotshoza the court there was, of course, not dealing with the constitutional
challenge posed in the present litigation. I interpose to state that in the present case it is
factually un-contentious that the State has routinely and extensively engaged the
specialised services of outside counsel,5 particularly in prosecutions requiring
commercial expertise and that those prosecutions were conducted without the oath of
office, or affirmation, prescribed by s 32 of the NPA Act being taken.

[18] I turn to deal with the appellant‟s challenge to the constitutionality of s 38 of the
NPA Act. I agree with the court below that the starting point is s 179(4) of the
Constitution which provides:
„National legislation must ensure that the prosecuting authority exercises its functions without
fear, favour or prejudice.‟
The NPA Act is that legislation. Section 2 provides for a single prosecuting authority.
Section 3 reiterates that there is a single prosecuting authority consisting of „the Office
of the National Director and the offices of the prosecuting authority at the High Courts,
established by section 6(1)‟. Section 4 referred to above sets out the composition of the
prosecuting authority. Section 5 established the office of the National Director of Public
Prosecutions and places the National Director at its head. Section 6 established offices
for the prosecuting authority at the seat of each High Court division. A number of

4 Cf Bonugli & another v DNDPP & others 2010 (2) SACR 134 (T) at 142F-145F, where it was held that a
private practitioner can be appointed as prosecutor subject to the perception of the reasonable, objective
and informed person of acting without fear, favour or prejudice, thus setting out the test for private
prosecutions. That case was decided on its own facts and was primarily concerned with the funding of a
prosecution.
5 This appears from para 48 of the respondent‟s heads of argument and I did not understand it to be
contested.

sections of the NPA Act deal with hierarchical appointments. Section 16, alluded to
above, provides for the appointment of prosecutors. Section 20(1) states that the power
to institute criminal proceedings contemplated in s 179(2) of the Constitution „vests in
the prosecuting authority and shall, for all purposes, be exercised on behalf of the
Republic.‟

[19] Significantly, s 20 subsecs (2)-(5) provide as follows:
„(2) Any Deputy National Director shall exercise the powers referred to in subsection (1) subject
to the control and directions of the National Director.
(3) Subject to the provisions of the Constitution and this Act, any Director shall, subject to the
control and directions of the National Director, exercise the powers referred to in subsection (1)
in respect of –
(a) the area of jurisdiction for which he or she has been appointed; and
(b) any offences which have not been expressly excluded from his or her jurisdiction, either
generally or in a specific case, by the National Director.
(4) Subject to the provisions of this Act, any Deputy Director shall, subject to the control and
directions of the Director concerned, exercise the powers referred to in subsection (1) in respect
of –
(a) the area of jurisdiction for which he or she has been appointed; and
(b) such offences and in such courts, as he or she has been authorised in writing by the
National Director or a person designated by the National Director.
(5) Any prosecutor shall be competent to exercise any of the powers referred to in subsection
(1) to the extent that he or she has been authorised thereto in writing by the National Director, or
by a person designated by the National Director.‟

[20] Section 21, consistent with s 179(5) of the Constitution,6 provides for the National
Director, with the concurrence of the Minister and after consultation with other Directors,

6 Section 179(5) reads as follows:
„(5) The National Director of Public Prosecutions –
(a) must determine, with the concurrence of the Cabinet member responsible for the administration of
justice, and after consulting the Director of Public Prosecutions, prosecution policy, which must be
observed in the prosecution process;
(b) must issue policy directives which must be observed in the prosecution process;
(c) may intervene in the prosecution process when policy directives are not complied with; and

to determine prosecution policy and issue policy directives which must be observed in
the prosecution process. Section 22(1) of the NPA Act provides:
„(1) The National Director, as the head of the prosecuting authority, shall have authority over the
exercising of all the powers, and the performance of all the duties and functions conferred or
imposed on or assigned to any member of the prosecuting authority by the Constitution, this Act
or any other law.‟7

[21] Section 23 deals with the powers, duties and functions of Deputy National
Directors and reads as follows:
„(1) Any Deputy National Director may exercise or perform any of the powers, duties and
functions of the National Director which he or she has been authorised by the National Director
to exercise or perform.‟

[22] Section 24 of the NPA Act sets out the powers, duties and functions of Directors
and Deputy Directors. Section 24(1) provides as follows:
„(1) Subject to the provisions of section 179 and any other relevant section of the Constitution,
this Act or any other law, a Director referred to in section 13(1)(a) has, in respect of the area for
which he or she has been appointed, the power to –
(a) institute and conduct criminal proceedings and to carry out functions, incidental thereto as
contemplated in section 20(3);
(b) supervise, direct and co-ordinate the work and activities of all Deputy Directors and
prosecutors in the Office of which he or she is the head;
(c) supervise, direct and co-ordinate specific investigations; and
(d) carry out all duties and perform all functions, and exercise all powers conferred or imposed
on or assigned to him or her under any law which is in accordance with the provisions of this
Act.‟

(d) may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public
Prosecutions and after taking representations within a period specified by the National Director of Public
Prosecutions, from the following:
(i) The accused person.
(ii) The complainant.
(iii) Any other person or party whom the National Director considers to be relevant.‟
7 A Code of Conduct was issued by the National Director on 1 October 1999 together with the Policy
Manual, the former was published under GN R1257 in GG 33907 dated 29 December 2010 with effect
from 18 October 2010.

[23] Section 25 deals with prosecutors at the lower end of the prosecutorial hierarchy.
Section 25(1) reads as follows:
„(1) A prosecutor shall exercise the powers, carry out the duties and perform the functions
conferred or imposed on or assigned to him or her –
(a) under this Act and any other law of the Republic; and
(b) by the head of the Office or Investigating Directorate where he or she is employed or a
person designated by such head; or
(c) if he or she is employed as a prosecutor in a lower court, by the Director in whose area of
jurisdiction such court is situated or a person designated by such Director.‟

[24] That brings us to s 32(1)(a) of the NPA Act which provides:
„(1)(a) A member of the prosecuting authority shall serve impartially and exercise, carry out or
perform his or her powers, duties and functions in good faith and without fear, favour or
prejudice and subject only to the Constitution and the law.‟

[25] The picture that emerges from the statutory scheme, in line with the constitutional
imperative of ensuring independence, impartiality and prosecutions without fear, favour
or prejudice, is the establishment of a single national prosecuting authority with strict
controls, directions and hierarchical supervision from the top downwards. It was not
suggested that the policy and policy directives presently in place are not consonant with
that model. Section 38 of the NPA Act, which is at the heart of the present litigation,
ensures that the appointment of persons with suitable qualifications and experience to
perform „services‟ in specific cases occurs only after consultation at the highest level
involving the Minister, the National Director and/or Directors or Deputy National
Directors. Importantly, s 38(4) provides:
„(4) For purposes of this section, “services” include the conducting of a prosecution under the
control and direction of the National Director, a Deputy National Director or a Director, as the
case may be.‟(My emphasis.)
This must mean that when persons from „outside‟ are engaged as prosecutors, they do
so after consideration at the highest level and that the prosecutions that they are
involved in are subject to the control and direction of the highest ranking officials within
the NPA, who themselves have taken the oath of office prescribed by s 32. This

translates into ensuring that the decision and basis of the prosecution are within the
control of those officials. All of this is to ensure that constitutional imperatives are met.

[26] Given the structure of the NPA Act and the controls and supervision referred to
above, I struggle to understand how prosecutorial independence and impartiality are,
without more, undermined by s 38. This is something that counsel on behalf of the
appellant himself had difficulty with. In my view, it is that difficulty that drove him to
reliance, on the failure by the legislature, in section 38 to provide for an oath, to be
taken by outside counsel in the same manner as is required of permanent members of
the NPA. As stated above, my understanding of the submission was that it was the oath
of office that guaranteed the independence and impartiality that the Constitution
demands. That meant, as counsel was constrained to concede, that the reading-in of an
oath would have the effect of saving s 38 from constitutional invalidity. Having regard to
the fact that Pansegrouw had by then taken an oath the attitude of the appellant in
continuing to challenge his prosecution is strange, to say the least. I consider it
necessary to record that, initially, the appellant attacked Pansegrouw‟s conduct in the
prosecutorial process up until the time that he noted his objection. That was abandoned.
It will be recalled that, initially, the appellant‟s challenge was based on the
constitutionality of s 32 of the NPA Act. After the exchange with Mailula J, that stance
altered and the attack was directed at the constitutionality of s 38. When pressed about
why s 38 was lacking, the argument reverted to the failure to provide for the oath in
terms similar to that contained in s 32. It leads one to the compelling conclusion that the
latest argument on behalf of the appellant is contrived.

[27] It must also be borne in mind that Pansegrouw is a member of the Bar who upon
admission took an oath of fidelity to the Republic and the Constitution and is required to
subscribe to and practice in the best traditions of his profession.8 Members of the Bar

8 See the comparable case of Prince v President, Law Society of Good Hope & others 2000 (3) SA 845;
2000 (7) BCLR 823 (SCA) paras 3-6 of the separate concurring judgment of Mthiyane AJA, where the
learned judge pointed out the interrelation between the professional oath of office and loyalty to the
Republic and to the Constitution.

are ultimately officers of the court and required to conduct themselves as such.
Pansegrouw is a former prosecutor and thus not a stranger to the workings of the NPA.

[28] I agree with the reasoning of the court below that prosecutors appointed in terms
of s 38 of the NPA Act are statutorily required to perform their functions as part of the
NPA, in the manner dictated by s 32(1)(a). The structure of the NPA Act is such that
control and supervision are in place to ensure compliance with s 32(1)(a) and
constitutional norms.

[29] It is not the taking of the oath that guarantees prosecutorial independence and
impartiality. Nor can the taking of the oath by itself ensure an accused‟s fair trial rights. It
is the manner in which prosecutions are initiated and conducted that is the test of
prosecutorial independence. Whether a trial is fair usually falls to be determined on a
case by case basis. Our courts will be astute to ensure that the constitutional
guarantees of prosecutions without fear, favour or prejudice and fair trial rights are met.
The appellant‟s contentions have the effect of placing form above substance. In Porritt v
The NDPP [2015] 1 All SA 169 (SCA), this court in dealing with a challenge of
impartiality to a prosecution said the following in para 14:
„The protection of an accused person, therefore, lies not in a general standard of independence
and impartiality required of all prosecutors, but in the right to a fair trial entrenched in s 35(3) of
the Constitution. That right was described in S v Shaik [2008 (2) SA 208 (CC) para 43] in these
terms:
“The right to a fair trial requires a substantive, rather than a formal or textual approach. It is clear
also that fairness is not a one-way street conferring an unlimited right on an accused to demand
the most favourable possible treatment. A fair trial also requires „fairness to the public as
represented by the State. It has to instil confidence in the criminal justice system with the public,
including those close to the accused, as well as those distressed by the audacity and horror of
crime.‟”‟

[30] I can find no flaw in the essential reasoning of the court below in dismissing the
appellant‟s application. I turn now to consider whether there is anything in comparable
jurisdictions that might detract from that conclusion.

[31] At our invitation, counsel filed a joint written note on the position in comparative
jurisdictions in relation to the question of whether „outside prosecutors‟ are required to
take an oath when appointed to prosecute on behalf of the state in a particular matter.
We are grateful for their assistance in this regard. The note had regard to legislation and
case law in England, Canada, the United States of America, India and Australia. It is
clear that the appointment of outside prosecutors is not unique to South Africa. We were
informed that counsel could find only one local jurisdiction (the Canadian province of
Quebec) that requires an outside prosecutor to take the same oath as that required of a
permanent state prosecutor.

[32] In those countries the scope of authority and powers delegated differ
significantly. It does appear, though, that in all instances the mandate given to a person
recruited from „outside‟ is subject to the control of the prosecuting authority.

[33] In England and Wales, the Prosecution of Offences Act 1985 makes provision for
the appointment of external counsel to conduct prosecutions on behalf of the Crown
Prosecution Service. Part 1, section 5 of Chapter 23 of the Prosecution of Offences Act
provides in relevant part:
„(1) The Director may at any time appoint a person who is not a Crown Prosecutor but who has
a general qualification (within the meaning of section 71 of the Courts and Legal Services Act
1990) to institute or take over the conduct of such criminal proceedings or extradition
proceedings as the Director may assign to him.
(1A) . . .
(1B) . . .
(2) Any person conducting proceedings assigned to him under subsection (1) or exercising
functions by virtue of an appointment made under subsection (1A) shall have all the powers of a
Crown Prosecutor but shall exercise those powers subject to any instructions given to him by a
Crown Prosecutor.‟

[34] There is no legislative indication that members of the Bar in England and Wales
are required to take the prosecutors‟ oath in addition to the oath taken by barristers on
their admission to the Bar.

[35] In Canada, in terms s 7(2) of the Director of Public Prosecutions Act S.C. 2006 c.
9, s 121, the Public Prosecution Service has the power to appoint outside counsel to act
as prosecutors. That section reads as follows:
„(2) The Director may also for that purpose retain on behalf of Her Majesty, the services of
barristers and, in the Province of Quebec, advocates to act as federal prosecutors and, with the
approval of the Treasury Board, may fix and pay their fees, expenses and other remuneration.‟
In terms of section 7(3) of the Director of Public Prosecutions Act, the person whose
services are retained under subsection (2) must be a member of the bar of one of the
ten Canadian provinces.

[36] It is clear from s 9 of that Act that the person authorised, acts under the control
and direction of the Director and acts as his/her agent. There does not appear to be any
legislative requirement for a barrister to take the prosecutors‟ oath. As stated earlier,
Quebec requires an oath in the prescribed form to be taken by outside counsel.

[37] In India the position appears to be regulated by ss 24 and 25A of the Criminal
Procedure Code. The Central Government and State Government are empowered to
appoint a Special Public Prosecutor for purposes of any case or class of case, if the so
appointed person has been in practice as an advocate for not less than ten years. The
circumstances in which a special private prosecutor may be appointed is limited to
cases where, having regard to the nature of the case, the gravity of the matter and the
public interest involved in the matter, such appointment is necessary.

[38] In K.V. Shiva Reddy v State of Karnataka 2005 CriLJ 3000 in paras 16 and 25
the following appears:
„There is a clear distinction between a private Counsel engaged to assist a Public Prosecutor
and private Counsel, who has been appointed as a Special Public Prosecutor by the State. In
the latter case, he is a Public Prosecutor because he has been appointed as such while in the

former case, he is a Public Prosecutor because he has been acting under the direction of a
Public Prosecutor.
. . .
. . . Section 2(u) of the Code states that “Public Prosecutor” means any person appointed under
Section 24 and includes any person acting under the directions of Public Prosecutor. Therefore,
the words “Public Prosecutor” includes Public Prosecutor, Additional Public Prosecutor, Special
Public Prosecutor and a Pleader instructed by a private person under Section 301(2) of the
Code. . . .‟

[39] We were referred to Rule 22 of the Rules for the Conduct of Legal Affairs of
Government, 1984 which sets out the manner in which a special private prosecutor in
India may be appointed. As far as could be ascertained, no provision is contained in the
Criminal Procedure Code or the Rules for the special private prosecutor to take the
prosecutor‟s oath on their appointment in terms of section 24 of the Code. Section 22
provides:
„22. Engagement of Special Public Prosecutor –
(1) The Government in the Law and Judiciary Department, either suo motu, or on the request of
any aggrieved party or the concerned Department in the Government, may, engage an
Advocate for not less than ten years, and having regard to his general repute, legal acumen and
suitability, by appointing him, as a Special Public Prosecutor in any criminal case or class of
cases, as the case may be:
Provided that, no order under this sub-rule regarding appointment of a Special Public
Prosecutor shall be made unless, for the reasons to be recorded in writing, the Remembrance
of Legal Affairs is satisfied, having regard to the nature of the case, gravity of the matter and
public interest involved in the matter that such appointment is necessary.
(2) On the request of a private complainant not being the aggrieved party, the Government in
the Law and Judiciary Department may, [appoint] any of the Public Prosecutor or Additional
Public Prosecutor as a Special Public Prosecutor in accordance with the provisions of sub-rule
(1), for conducting any such case.
(3) Fees for such Special Public Prosecutor, appointed under sub-rule (1) or (2) may be borne
by the Government or the aggrieved party or the private complainant, as may be directed by the
Remembrance of Legal Affairs;

Provided that, in cases where the aggrieved party is, a Bank or an Institution or Trust or the like,
the fees shall be borne by such aggrieved party;
Provided further that, the amount of the fees to be paid to such Special Public Prosecutor, shall
be deposited with the Government in the Law and Judiciary Department first, and the same
shall be paid by it to such Special Public Prosecutor on completion of the trial, unless directed
otherwise by the Remembrance of Legal Affairs.‟

[40] The U.S. Attorney‟s Office is the chief prosecutor for the United States in criminal
cases. Title 28 Code of Federal Regulations (“CFR”) § 600.1 empowers the attorney
general to appoint special counsel in limited circumstances, often related to sensitive
matters, matters in the public interest or matters which may raise a conflict of interest for
Department of Justice Personnel. Special counsel appointed under these provisions are
supervised by the Attorney General who must be notified of all significant actions that
the special counsel is to take and may countermand any proposed action by the special
counsel. Moreover, appeals by the special counsel have to be approved of by the
Attorney General.

[41] Australia has the Commonwealth Office of the Director of Public Prosecutions
(CDPP), which is headed by a Director of Public Prosecutions and each state or territory
has a uniquely structured state prosecution service. At a federal level, the Attorney
General is responsible for the Commonwealth criminal justice system and is
accountable to Parliament for decisions made in the prosecution process. The Office of
the CDPP runs independently of the Attorney General. In addition, there are areas
where Commonwealth agencies conduct straightforward regulatory prosecutions by
arrangement with the CDPP (for example, the Australian tax office and the Australian
securities and investment commission). In the office of the CDPP, both the Director and
Assistant Director of Public Prosecutions are required to take the oath of office
contained in the schedule to the Director of Public Prosecutions Act 113 of 1983. At
federal level the Governor-General is empowered to appoint special prosecutors for a
renewable period of five years in terms of the Special Prosecutors Act 79 of 1982.
Special prosecutors are not appointed for a particular criminal prosecution but for a

fixed period. There does not seem to be a requirement for Special Prosecutors to take
an oath of office.

[42] There is nothing in the comparable survey that detracts from the conclusion set
out above. If anything, the survey supports the conclusion. In any event, the challenge
by the appellant has to be decided by reference to our Constitution and provisions of the
NPA Act. It is that exercise that leads to the conclusion that the appeal falls to be
dismissed.

[43] The following order is made:
The appeal is dismissed with costs.

________________________
MS NAVSA
ACTING DEPUTY PRESIDENT

APPEARANCES:

FOR APPELLANT:

Adv. L J Lowies

Instructed by:

Du Toit Attorney, Johannesburg

Lovius Block, Bloemfontein

FOR RESPONDENT:

Adv. N Rajab-Budlender (with her S Kazee)

Instructed by

The State Attorney, Johannesburg

The State Attorney, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

14 April 2015

STATUS

Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

Moussa v S (181/2014) [2015] ZASCA 61 (14 April 2015)

The Supreme Court of Appeal (SCA) today handed down judgment in a matter relating to the
constitutionality of s 38 of the National Prosecuting Authority Act 32 of 1998 (NPA Act) which allows
for the appointment of private counsel to assist in specialised prosecutions on the basis that it
impinged on the constitutional imperative of prosecutions without fear, favour or prejudice.

The appellant, Mr Sylla Moussa, a Guinean national, was charged, during June 2006, with 16 counts
of fraud, and in the alternative, with three counts of theft and three counts of money laundering in
terms of the provisions of the Prevention of Organised Crime Act 121 of 1998. The preamble to the
indictment stated that he was in control of two accounts held by corporate entities with Absa Bank.
The accounts labelled ‘credit accounts’ bore a no-risk status which meant that the appellant could
immediately make withdrawals against cheque deposits into the account. The appellant allegedly
conducted ‘cross-fire fraud’ which had been described in the indictment as depositing no value
cheques or ‘facilitation cheques’ into a beneficiary bank account at Absa and drawing against the
drawer’s account of the same bank resulting in artificial credit being created in the beneficiary
account. The balances and credits recorded on the respective bank statements of the beneficiary and
drawer bank account would therefore not be representative of the genuine or underlying funds
created by such transactions, but would be artificial and designed to mislead Absa into accepting that
the accused or the corporate entities were conducting bona fide transactions or were involved in
genuine and bona fide arm’s length business transactions while they were not.

After his arrest in June 2006, the appellant appeared in the Johannesburg Regional Court and was
released on R100 000 bail. During March 2008, his trial was transferred to the Gauteng Local Division
of the High Court, Johannesburg. Due to the nature of the commercial transactions in relation to
which the appellant was charged, the National Prosecuting Authority (the NPA) took the view that it
required the skills of a specialised prosecutor and thus engaged the services of Mr Zirk Pansegrouw
(Pansegrouw), an advocate in private practice and member of the Pretoria Bar who also happened to
be a former prosecutor. The NPA thus appointed Pansegrouw in terms of s 38 of the NPA Act. Faced
with Pansegrouw as the prosecutor appellant’s legal representative contested Pansegrouw’s authority
to conduct the prosecution. After documentation was produced relating to Pansegrouw’s

appointment, the appellant challenged the fact the Pansegrouw had not taken an oath that had to be
taken by prosecutors in terms of s 32(2) of the NPA Act, the appellant accordingly launched an
application in the Gauteng Local Division in which he sought an order that Pansegrouw had no
authority to prosecute him; that his trial was unfair and for a permanent stay of his prosecution. When
the application came before Mailula J in the Gauteng Local Division, she enquired whether the
appellant would accept Pansegrouw taking the prescribed oath before the trial commenced. However,
the appellant instead, choose to challenge the constitutionality of s 38 of the NPA Act, which enables
the NPA to engage persons outside of it to perform prosecutorial services in specific cases.

The appellant then launched an application seeking an order declaring s 38 to be unconstitutional on
the basis that it permitted the appointment of a prosecutor outside the NPA’s normal staff
complement and therefore did not give effect to enshrined constitutional principles requiring the
prosecuting authority to exercise its functions without fear, favour or prejudice. The application was
heard by Campbell AJ, three years after Pansegrouw had taken the oath. Campbell AJ considered
that when persons are engaged as prosecutors in terms of s 38 of the NPA Act, they can hardly be
regarded as free agents. In his view, they were subject to the control and direction of senior officers of
the NPA, within the structure of the NPA Act. The court reasoned that Pansegrouw was obliged to
carry out his functions as a prosecutor in the manner contemplated by s 179(4) of the Constitution,
and that the absence of an oath in s 38 did not detract from the manner in which private counsel
appointed in terms of the NPA Act are required to perform their duties. The court resultantly
dismissed the application with costs, and it was against that order and the findings referred to above
that the appeal to the SCA was directed.

The SCA found that the engagement of person with specialised skills to assist in prosecutions was
not statutorily novel. The Court, after considering relevant provisions of the NPA Act, held that the
statutory scheme was directed at establishing a single national prosecuting authority with strict
controls to ensure independence and impartiality. The SCA found that in terms of the statutory
scheme, private counsel were only engaged after due consideration at the highest level of the NPA. It
held that given the hierarchical structure of the NPA and the established controls and supervision,
prosecutorial independence and impartiality were not undermined by s 38 of the NPA Act.

The SCA accordingly agreed with the court below that the structure of the NPA Act is such that
controls and supervision are in place to ensure compliance with constitutional norms that dictated
prosecutions without fear, favour or prejudice.

The SCA held that it is not the mere taking of the oath that guaranteed prosecutorial independence
and impartiality and ensured an accused’s fair trial rights. The Court held that the manner in which
prosecutions are initiated and conducted is the true test of prosecutorial independence. The Court
found that whether a trial is fair usually falls to be determined on a case by case basis and that our
courts would be astute to ensure that the constitutional guarantees of prosecutions without fear,
favour or prejudice and fair trial rights are met.

The SCA further found, after a survey of the law in comparable foreign jurisdictions, that there was
nothing there that detracted from the Court’s aforesaid conclusions.

The SCA accordingly dismissed the appeal with costs.

--- ends ---