Appeal court Judge Fritz Brand held that prosecutorial decisions are in principle reviewable, and that the principle of legality empowers the court to undertake a review of a decision, in this case, not to prosecute.
Turning to the murder and related charges, Brand
found that Chauke's decision to withdraw these charges could not be found to be irrational.
On Murphy's finding that Chauke's failure to proceed with the charges after the inquest constituted an irrational decision, Brand
held that this point had not formed the basis of FUL's review application, so this part of the appeal had to succeed.
But the judge also noted that counsel for the NDPP
conceded that some of the murder and related charges were bound to be reinstated and that the NDPP
would make a decision within two months.
decided not to reinstate all 18 charges, Chauke would have to provide reasons to FUL for this decision.
did not agree with the order of the court to reinstate charges, holding that this constituted "inappropriate transgressions of the separation of powers doctrine".
Thus, a court is precluded from impermissibly assuming the powers of the NDPP