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National Prosecuting Authority Act, 1998 (Act No. 32 of 1998)

Chapter 7 : Transitional Arrangements

43. Transitional arrangements

 

(1)

(a) Anyone holding office as an attorney-general in terms of the Attorney-General Act, 1992 (Act No. 92 of 1992), shall, subject to paragraph (b), be deemed to have been appointed as a Director in terms of this Act, and shall continue to function in terms of the laws applicable to his or her Office.
(b) The President shall, as soon as reasonably possible after the commencement of this section, appoint each attorney-general referred to in paragraph (a) as a Director at the Office that, and for such term as the President, after consultation with the attorney-general concerned, may determine, but such term shall not extend beyond the date on which the attorney-general concerned will attain the age of 65 years.
(c) The provisions of section 12(4) shall apply with the necessary changes in respect of a Director referred to in paragraph (b) : Provided that the reference in section 12(4) to the age of 65 years shall be construed as a reference to the date on which the Director's term of office as contemplated in paragraph (b) expires.
(d) If the term of office of a Director appointed under paragraph (b) expires before he or she has attained the age of 65 years, he or she shall be entitled to pension benefits determined and calculated under all circumstances as if he or she was employed as a Director-General in the public service, who served as a Director-General for five years.

 

(2) Anyone holding office as an attorney-general in terms of a law other than the Attorney-General Act, 1992, or holding an appointment as acting attorney-general, shall be deemed to have been appointed as an acting Director under this Act at the office where he or she holds such office or appointment, and shall continue to function in that capacity until otherwise determined under this Act or any other law.

 

(3)

(a) Any person who immediately before the commencement of this section was employed by the State as a deputy attorney-general shall continue in such employment and shall be deemed to have been appointed as a Deputy Director in terms of section 15(1).
(b) Any person who immediately before the commencement of this section was employed by the State as a state advocate or prosecutor and who has been delegated in terms of any law to institute criminal proceedings and to conduct any prosecution in criminal proceedings on behalf of the State—
(i) shall continue in such employment as a prosecutor; and
(ii) shall be deemed to have been authorised to exercise the powers referred to in section 20(1): Provided that no prosecutor shall, by virtue of this section, have more powers than he or she would have had under the delegation concerned.

 

(4) Criminal proceedings which have been instituted before the commencement of this Act, must be disposed of as if the decision to institute and prosecute in such criminal proceedings had been taken by a member of the prosecuting authority appointed in terms of this Act.

 

(5) Any attorney-general, deputy attorney-general, state advocate or prosecutor who continues in office in terms of this section must, within three months after the commencement of this Act, take the oath or make the affirmation referred to in section 32(2).

 

(6) As from the date of the commencement of this section, all offices of attorneys‑general at the High Courts contemplated in item 16(4)(a) of Schedule 6 to the Constitution, shall become offices of the prosecuting authority as referred to in section 6(1) of this Act.

 

(7) [Section 43(7) deleted by section 12 of Act No. 56 of 2008]

 

(8) Subject to the Constitution and this Act, all measures which immediately before the commencement of this section were in operation and applied to attorneys-general, deputy attorneys‑general, state advocates and prosecutors, including measures regarding remuneration, pension and pension benefits, leave gratuity and any other term and condition of service, shall continue in operation and to apply to the said attorneys‑general, deputy attorneys-general, state advocates and prosecutors until amended or repealed by this Act : Provided that no such measure shall, except in accordance with an applicable law or agreement, be changed in a manner which affects such attorneys‑general, deputy attorneys‑general, state advocates and prosecutors to their detriment.

 

(9) Notwithstanding the commencement of this Act, all measures regulating the institution and conducting of prosecutions in any court shall remain in force until repealed or amended under this Act or by any competent authority.