Engagement of prosecutors not in the employ of the National Prosecuting Authority

This article focuses on the engagement of prosecutors not in the employ of the National Prosecuting Authority (NPA) to prosecute certain cases. Such prosecutors are appointed in terms of section 38 of the National Prosecuting Authority Act 32 of 1998. The article starts by presenting a number of recent court decisions that dealt with the application of this section and contextualises the decision of the Supreme Court of Appeal (SCA) in Moussa v S. Given that it was in Moussa that the constitutionality of the section was challenged, the approach of the SCA and the reasons for its decision are discussed. It is submitted that the SCA’s decision is a welcome step, in that the court has pronounced itself definitively on the constitutionality of the section and also outlined the approach to be used in determining which appointments of prosecutors, in terms of the section, are acceptable and which are not. In particular, the article explains the test to be used in making that decision.