The power and the duty of the NPA to prosecute genocidaires, war criminals and other enemies of all humankind - III

In the first two briefs of this series I outlined the fact that, according to the SALC decision, the SAPS has a duty to investigate allegations of crimes against humanity. I explained, however, that in coming to this conclusion, Majiedt AJ said that the NPA has the power to institute criminal proceedings, but does not also have a duty; rather, it just has a discretion. In other words, he thinks that where a power is discretionary, the person vested with that power does not have a duty to exercise it. I concluded the second brief, however, by explaining that the concept of a duty and the concept of a discretion are not mutually exclusive. In this brief, I provide a possible reason for why the court thought otherwise.


An outline of the Hohfeldian incidents

In the SALC decision, the Constitutional Court says that because ‘section 179(2) of the Constitution affords the prosecuting authority a power’, it affords the NPA ‘a discretion to institute criminal proceedings’. [1] A necessary conceptual link is asserted between ‘power’ and ‘discretion’, and it is assumed that as a consequence of this link the NPA does not have a duty to exercise its power.

The court does not provide its reasoning in this regard. This is unfortunate, as both the asserted link and the subsequent assumption are mistaken. To explain why the court was mistaken, I must resort to theory.  

W.N. Hohfeld, a legal theorist from the early twentieth century, famously argued that all ‘rights’ are constituted by four basic components. [2] These components are termed ‘the Hohfeldian incidents’. The four incidents are ‘claim’, ‘power’, ‘privilege’ and ‘immunity’. Each incident relates to the others in a particular way, having both an opposite and a correlative. In this section of this brief, I outline these relations and in the next section I apply this theory to the facts of the SALC decision.

The opposite of a claim is ‘no-claim’ and its correlative is ‘duty’. For example, Dave has a claim against John that John does not steal Dave’s car; but Dave has no-claim that John does not drive John’s own car.  Thus, simply, the opposite of claim is no-claim. The correlative of claim, though, is duty. If Dave has a claim against John that John does not steal his car, John has a duty not to steal Dave’s car. Thus, to repeat, the opposite of Dave having a ‘claim’ is Dave having ‘no-claim’ and the correlative of Dave’s ‘claim’ is John having a ‘duty’.  

The opposite of ‘power’ is ‘disability’ and its correlative is ‘liability’. Imagine Cyril, who is the chairman of a company. As chairman, he may have the power to order the company’s employees to perform certain tasks. If he ordered Sara to perform a task, Sara would now be liable to act in the way ordered. Power and liability are correlatives, for the exercise of a power creates a liability for someone else. If Cyril were to resign as chairman, however, he would no longer be able to issue orders that bind Sara in this way. In other words, his power to create liabilities for others would now be disabled. Thus, power and disability are opposites.

Turning to ‘privilege’, its opposite is ‘duty’ and its correlative is ‘no-claim’. If Nozipho owns a house, she might have a privilege to paint her house red, green, black or blue. She will only have a privilege, though, if she does not have a duty (imposed, say, by a local building authority) to paint it a certain colour. Privileges and duties are opposites. If she does have a privilege, it will mean that her neighbour Rob has no-claim against her to paint the house a particular colour. If Rob has a claim, Nozipho would have a duty, which means that Nozipho would not have a privilege. Thus, the absence of a claim vesting in Rob is the correlative of Nozipho’s privilege to paint her house the colour that she prefers.

In the language of the courts, a privilege is a ‘subjective discretion’ to act in a particular way; the exercise of this discretion ‘lies within the sole and subjective preserve’ of the person vested with the power. [3] Since privilege (or, subjective discretion) and duty are opposites, a finding that the exercise of a particular power is accompanied by a privilege necessarily means that the person vested with that power does not have a duty to exercise it. The person vested with this power would have ‘just a power’ but not ‘also a duty’. [4]

Finally, I consider ‘immunity’, whose opposite is ‘liability’ and correlative is ‘disability’. A person (call him Omar) has immunity if some other person (call him Shaun) lacks the ability to alter Omar’s claims, powers and privileges. For example, Omar is immune if Shaun is disabled from imposing liabilities on Omar. So, if Shaun has the ability to impose a liability on Omar, say, by prosecuting him for certain crimes that he is alleged to have committed, Omar will not be immune.

Let me summarise the above points.


If X has a claim, then X lacks a no-claim.
    . . .   a privilege,      . . .    a duty.
    . . .   a power,         . . .    a disability.
    . . .   an immunity,   . . .    a liability.


If X has a claim,               then some person Y has a duty.
    . . .   a privilege,                            . . .              a no-claim.
    . . .   a power,                               . . .              a liability.
    . . .   an immunity,                         . . .              a disability.

The conflation of ‘power’ and ‘privilege’ in the SALC decision

The relationship among power, discretion and duty is more complicated than the SALC decision seems to recognise. Why does this matter? It matters because the court, it seems to me, confused the opposites and the correlatives of power and privilege.

As the first section in this brief illustrated, if someone has a power, this does not mean that they do not have a duty. They might have a duty. They might not, in which case they will have a privilege, that is, a subjective discretion.

For example, in his capacity as a chairman, Cyril has the power to issue certain orders. This power is accompanied by duties and privileges. He is under a duty to exercise his powers in the best interests of the company. Within the parameters of this duty, however, he has a privilege to issue orders that he happens to think best. In the language preferred by our courts, he has a subjective discretion. Indeed, it will often be the case that he was hired so that he would exercise subjective discretion of this type. Analytically, therefore, there is no necessary connection between power and privilege. Contrarily, a necessary conceptual connection does exist between privilege and duty. As noted, the opposite of duty is privilege, not power. The opposite of power is disability.

Above, I indicated that according to Majiedt AJ, the fact that section 179(2) of the Constitution affords the NPA a ‘power’ means that it has ‘a discretion to institute criminal proceedings’. This is wrong. The NPA may have discretion when exercising its power, but this does not follow (analytically) from what it means to have power. Nor does it mean, as Majiedt AJ implies, that the NPA does not have a duty to exercise this power. It may be that it does not have a duty to exercise this power, but again this does not follow analytically from what it means to have power.

Whether the power of the NPA to institute criminal proceedings is accompanied by a duty and/or discretion is a normative question, the answer to which requires consideration of the various reasons for and against vesting the prosecuting authority with different types of power. Some relevant factors in this regard include the source, purpose and nature of the power, the forms of action to which the power relates, the persons over whom it can be exercised, and the circumstances of its use. In short, it was not enough for Majiedt AJ to identify the fact that ‘section 179(2) of the Constitution affords the prosecuting authority a “power”’ and conclude from this that this section affords the NPA discretion to institute criminal proceedings. Nor could he conclude from this that the NPA does not have a duty to institute criminal proceedings when investigations reveal a prima facie case against a person alleged to have committed crimes against humanity, war crimes or genocide.

In the next brief, I consider whether the NPA has a discretion when exercising its power under section 179(2) of the Constitution to institute criminal proceedings. I then consider whether the NPA has a duty to institute such proceedings.
Matthew Kruger
Legal Researcher
[1] National Commissioner of The South African Police Service v Southern African Human Rights Litigation Centre [2014] ZACC 30 para. [56] (internal quotations omitted).
[2] Wesley Newcomb Hohfeld, Fundamental Legal Conceptions: As Applied in Judicial Reasoning and other Legal Essays (ed. Walter Cook, YUP, New Haven 1923).  For a summary, see the discussion in paragraph 2.1 of Leif Wenar, ‘Rights’ (Stanford Encyclopaedia of Philosophy,, 2015).
[3] Democratic Alliance v President of South Africa and Others [2012] ZACC 24 para. [23].
[4] Supra note 1 para. [55].