What is a Prosecuting Attorney? | What Is Their Role in South African Law?

A prosecuting attorney in South Africa is a State prosecutor — typically a public prosecutor employed by the National Prosecuting Authority (NPA) — whose job is to institute and conduct criminal proceedings on behalf of the State in magistrate’s courts and the High Court. The role is grounded in section 179 of the Constitution and given statutory form by the National Prosecuting Authority Act 32 of 1998 (especially sections 20 and 33), which establish the NPA as a single national body with the National Director of Public Prosecutions at its head, prosecutorial independence from political interference, and the formal power to decide whether to prosecute, to carry the prosecution through trial, and to handle appeals.

What “Prosecuting Attorney” Means in South African Law

The South African term used in statute is generally “prosecutor” or “State prosecutor.” The phrase “prosecuting attorney” is widely used in everyday speech and in search queries, but in the governing statutes the role is described as a “prosecutor” or “public prosecutor.” For practical purposes the labels refer to the same role: a legal officer who institutes and conducts criminal proceedings on behalf of the State.

A prosecuting attorney acts on behalf of the State, not the victim. In every criminal prosecution, the State is the complainant — not the person who suffered the harm. In court the prosecutor stands on the side of the State; the opposing role is the defence attorney, who acts on instruction from the accused.

The NPA employs most prosecutors directly. In limited matters — private prosecutions and certain regulatory prosecutions brought by other state organs — other structures exist, but the everyday reference to “a prosecuting attorney” means an NPA-employed prosecutor.

The Legal Foundation: Constitution, NPA Act, and Prosecutorial Independence

The prosecuting authority in South Africa has both a constitutional and a statutory foundation.

• Section 179 of the Constitution establishes the NPA as a single national body, with the National Director of Public Prosecutions (NDPP) as its head, structured to be independent of political interference.
• The National Prosecuting Authority Act 32 of 1998 gives the NPA its operating form — the NDPP, Deputy NDPPs, and Directors of Public Prosecutions (DPPs) in each High Court division.
• Section 20 of the NPA Act authorises the NDPP and DPPs to institute and conduct criminal proceedings on behalf of the State.
• Section 33 of the NPA Act empowers any prosecutor so designated to institute and conduct prosecutions — this is the section under which a public prosecutor in a magistrate’s court exercises day-to-day authority.

“Prosecutorial independence” is the principle that, once a decision to prosecute is made, the prosecutor runs the case without political direction. It does not mean the prosecutor is unaccountable. Prosecutors remain subject to court orders, internal NPA discipline, and external scrutiny of how individual decisions are made.

The NPA’s Structure: Who Prosecutes Where

The NDPP sits at the top of the NPA and is appointed by the President on the recommendation of a cabinet committee and confirmed by Parliament. Each High Court division has a DPP responsible for prosecutions in that division — for example, the Gauteng Division DPP oversees matters in the Pretoria and Johannesburg seats.

Below the DPPs, prosecutors work in dedicated units:

• District-level courts — day-to-day criminal matters in the lower magistrate’s courts.
• Regional courts — more serious matters in the regional magistrate’s courts.
• High Court — serious matters triable only in the High Court, plus appeals from the lower courts.
• Specialised units — focused on complex matters rather than ordinary trial work. These include the Priority Crimes Litigation Unit, the Asset Forfeiture Unit, the Sexual Offences and Community Affairs Unit, and the Investigating Directorate Against Corruption.

What a Prosecuting Attorney Actually Does, Day to Day

The role is wider than appearing in court on a single day. In practice a prosecutor’s day-to-day work runs along these lines:

1. Reviewing case dockets sent by the South African Police Service (SAPS) and deciding whether to prosecute.
2. Exercising prosecutorial discretion — the decision whether to charge, what charge to bring, whether to withdraw, and whether to accept a plea.
3. Preparing and signing the charge sheet; appearing in court to lead evidence, cross-examine witnesses, and argue points of law.
4. Engaging with the defence and the magistrate or judge on procedural and evidential issues — bail, disclosure, and interlocutory applications.
5. Deciding on plea negotiations, sentence submissions, and whether to appeal an adverse decision.

For less experienced candidates, much of the courtroom work happens under the supervision of a senior prosecutor or DPP.

How the Decision to Prosecute Is Made (Prosecutorial Discretion)

A docket is sent by SAPS after investigation. The prosecutor then applies the NPA’s prosecution policy and asks whether there is a reasonable prospect of conviction on the available evidence. The test is not whether the accused “probably did it” but whether the State can prove the case beyond a reasonable doubt using admissible evidence.

A decision not to prosecute is not a statement that the accused is innocent. It reflects the strength of the available evidence and the public-interest considerations set out in the NPA’s prosecution policy. A refusal to prosecute can be reviewed by a senior prosecutor or the DPP, and in limited circumstances the NDPP may intervene under section 22 of the NPA Act.

Where They Sit in a Criminal Case: Court Levels and Role Players

Role	Side in the case	Function
Investigating officer (SAPS)	State, pre-charge	Gathers the docket, arrests, takes statements
Prosecuting attorney	State, in court	Institutes and conducts the prosecution
Defence attorney	Accused	Acts for the accused on instruction
Magistrate / judge	Neutral	Hears evidence, decides on guilt and sentence
State attorney (different role)	State, civil matters	Represents the State in civil litigation — not criminal prosecutions

Distinguishing the Prosecuting Attorney from Adjacent Roles

Four distinctions matter for anyone trying to understand the role:

• Prosecuting attorney vs defence attorney. Both are lawyers; one acts for the State, the other for the accused. Both share a duty to the court that overrides their client’s interests.
• Prosecuting attorney vs magistrate / judge. The prosecutor is a party to the case; the magistrate or judge decides it. A prosecutor cannot later sit as a judicial officer in a matter they were involved in as a prosecutor.
• Prosecuting attorney vs “state attorney.” A “state attorney” is a separate office — the Office of the State Attorney — that handles civil legal work for government departments. They do not run criminal prosecutions.
• Prosecuting attorney vs SAPS investigating officer. SAPS investigates and arrests; the prosecutor decides whether to charge and carries the case in court.

Qualifications, Appointment, and Career Path

Prosecutors are required to be admitted attorneys or advocates. They must have completed the LLB, the relevant practical vocational training (PVT) or pupillage, and be in possession of a Fidelity Fund certificate where applicable.

Entry into the NPA typically runs through the NPA’s recruitment of candidate prosecutors, with progression from candidate prosecutor to public prosecutor and then to senior and chief prosecutor roles. Specialist posts — for example, in the Investigating Directorate Against Corruption or the Priority Crimes Litigation Unit — require additional experience and security vetting.

Rights, Duties, and Accountability

The prosecutor must act impartially. The duty is to present the State’s case fairly, not to secure a conviction at any cost. The prosecutor must also disclose material evidence to the defence — a constitutional duty derived from section 35(3) of the Constitution, which governs the rights of arrested, detained, and accused persons.

The prosecutor is subject to the NPA’s internal code of conduct and can be disciplined for misconduct. A complainant or member of the public who believes a prosecutor has acted improperly can lodge a complaint with the NPA itself. Complaints about the broader category of legal-services providers — where the role overlaps with attorneys — are handled by the Legal Practice Council under the Legal Practice Act 28 of 2014.

Why It Matters to Know the Role

The role touches different people for different reasons:

• If you are the complainant or a witness in a criminal case, the prosecutor is the person who decides whether the matter proceeds and who runs the trial.
• If you are the accused, the prosecutor is the person the defence attorney is arguing against — knowing what they can and cannot do helps frame what to expect.
• If you are researching the criminal justice system, the prosecutor’s independence — and the limits of that independence — is a structural check worth understanding in its own right.

Frequently Asked Questions

Is a “prosecuting attorney” the same as a “state attorney” in South Africa?

No — they are different roles. A prosecuting attorney (or prosecutor) is employed by the National Prosecuting Authority to institute and conduct criminal proceedings on behalf of the State. A “state attorney” works in the Office of the State Attorney and handles civil legal work for government departments — not criminal prosecutions. The two are routinely confused in everyday speech and search queries, but they sit in separate institutions and do separate work.

Where does a prosecuting attorney get the authority to prosecute?

From section 179 of the Constitution (which establishes the NPA) and the National Prosecuting Authority Act 32 of 1998, particularly section 20 (which authorises the National Director and Directors of Public Prosecutions to institute and conduct criminal proceedings) and section 33 (which empowers prosecutors designated by the NPA to institute and conduct prosecutions in their courts). The combined effect is that the prosecutor acts under a statutory delegation from the NPA’s national leadership.

What is prosecutorial independence, and what does it mean in practice?

Prosecutorial independence is the principle that, once a decision to prosecute has been taken, the prosecutor runs the case without political direction or interference. In practice this means the NDPP, DPP, and individual prosecutors are not required to take instructions from the Minister of Justice on individual cases. It does not mean unaccountable — prosecutors remain subject to court orders, internal NPA discipline, the NPA’s prosecution policy, and external review of decisions not to prosecute.

Can a prosecutor refuse to prosecute a case?

Yes. The prosecutor applies the NPA’s prosecution policy and decides whether there is a reasonable prospect of conviction on the available evidence. A decision not to prosecute can be reviewed by a senior prosecutor or the DPP, and in defined circumstances the NDPP may intervene under section 22 of the NPA Act. A refusal to prosecute is not a declaration of innocence — it reflects the strength of the available evidence and the public-interest considerations set out in the prosecution policy.

Does a prosecuting attorney work for the victim of the crime?

No — a prosecuting attorney works for the State, not for the victim. In a criminal prosecution the complainant or victim is a witness for the State; the State is the party that institutes and conducts the prosecution. This is why the victim’s interests are presented through the prosecutor rather than the victim running the case themselves.

What qualifications does a prosecuting attorney need?

A prosecutor must be an admitted attorney or advocate — that is, they must have completed the LLB, the practical vocational training (PVT) or pupillage, and (where applicable) be in possession of a Fidelity Fund certificate. Entry into the NPA typically runs through recruitment as a candidate prosecutor, with progression to public prosecutor and then senior or specialist roles.

Burger Huyser Attorneys’ Criminal Law practice acts on the other side of the same cases prosecuting attorneys run — defending persons charged with criminal offences in magistrate’s courts across Gauteng and in the Gauteng Division of the High Court. The firm handles bail applications (including after-hours and Schedule 6 matters through the 069 522 7696 line), criminal trials, and appeals, and is registered with the Pretoria Attorneys Association and the Johannesburg Attorneys Association. If you have been charged, are under investigation, or need a second opinion on a criminal matter, contact the Linden head office on 011 888 0246 or 061 516 6878 (Mon–Fri, 7:30am–4:30pm) or the branch closest to you; initial consultations are used to give an honest read on the case prospects rather than a sales pitch.