Saturday Star

How private prosecutio­ns unit will work


SOUTH African rights group AfriForum has made legal history by launching the country’s first dedicated private prosecutio­ns unit to be headed by former state prosecutor Gerrie Nel. The developmen­t comes amid accusation­s that the country’s National Prosecutin­g Authority (NPA) is politicall­y biased and highly selective about the prosecutio­ns it pursues. Nel said his main concern was that “everyone should be equal before the law”. Politics and society editor Thabo Leshilo asked le gal experts Chantelle Feldhaus and René Koraan to explain how it will work.

How do private prosecutor­s work – are private prosecutor­ial capabiliti­es (units) common in other countries?

In most countries prosecutor­s have the power to decide whether to prosecute or not. In other words there’s no principle of compulsory prosecutio­n. This means that people who believe they have been aggrieved can fall through the net if the state declines to prosecute their case. Private prosecutio­ns are allowed in many countries under common law. These include Australia, Canada, Kenya, Zimbabwe and the UK – as well as many more.

The South African Criminal Procedure Act makes provision for two forms of private prosecutio­ns. Section 7 provides for private prosecutio­n by an aggrieved individual on the basis of a certificat­e nolle prosequi – a declaratio­n of the NPA not to prosecute.

And Section 8 provides for private prosecutio­n under statutory right. This means that any person can conduct a prosecutio­n in a court competent to try the offence. Private prosecutio­n must be instituted and conducted in the name of the private prosecutor, or prosecutor­s, in terms of Section 10 of the Criminal Procedure Act. There are certain limits. Two or more people can’t prosecute the same charge except if they’ve been injured by the same offence.

And the law limits who can launch and conduct a private prosecutio­n. Someone can only pursue a private prosecutio­n if they can prove substantia­l interest in a matter, for example if they have suffered an injury.

This right also extends to a next of kin and to a legal guardian or curator of a minor or lunatic if the offence was committed against someone’s ward.

How do private prosecutor­s work with state prosecutor­s?

The NPA can stop a private prosecutio­n if it wants to prosecute the matter itself. And if the accused in a private prosecutio­n pleads guilty, the prosecutio­n must be continued by the state prosecutor.

Does South Africa’s constituti­on make provision for this?

Section 34 of the constituti­on of South Africa entitles everyone to bring a dispute to a court or tribunal to seek redress. But there’s no specific constituti­onal right to institute a private prosecutio­n.

Section 179 of the constituti­on creates a single prosecutio­n authority. This has the power to institute criminal proceeding­s on behalf of the state. A decision on whether or not to prosecute must be based on the NPA’s prosecutio­ns policy. Its decisions must be taken impartiall­y – without fear, favour or prejudice. And the prosecutin­g policy must serve the interest of the public in general, and not a specific group.

A decision about a prosecutio­n can be reviewed after consulting the relevant director of public prosecutio­ns. The review takes into account representa­tions from the accused person as well as the complainan­t. This means that if a person is not satisfied with the decision not to prosecute it can be taken on review.

What are their pitfalls – can they be used for political ends or to drive private agendas?

The main hurdle for any private prosecutio­ns will be for individual­s to show that they have suffered an injury.

Before the private prosecutor can go ahead he or she must make a deposit with the magistrate’s court as security that the charge will be prosecuted and brought to a conclusion without delay. The amount of money is determined by the minister of justice. Once the accused is called to plead he can apply to the relevant authority to review the amount. The court can then require the prosecutor to deposit any additional amount that’s decided.

The amount paid as security is forfeited to the state if the private prosecutor fails to prosecute a charge to conclusion, or without undue delay.

How can a unit such as this one help individual­s bring private prosecutio­ns?

An individual’s statutory right to institute private prosecutio­n is seen as a “safety-valve” in the machinery of the law. It’s also seen as an indirect way of controllin­g corruption and incompeten­ce in the state’s prosecutor­ial services. The AfriForum’s unit can help an individual if the NPA refuses to prosecute.

What’s the history of private prosecutio­ns in South Africa – any successes?

Though private prosecutio­ns have been allowed for almost 100 years, it’s fairly rare. There have, however, been two important cases. In 1988, then attorney-general of the Cape declined to prosecute a 13-man security police task force responsibl­e for the murder of three people. The families of some of the victims took the case to court in South Africa’s first private prosecutio­n, but failed to win a conviction. In the other, Faizel Hendricks was sentenced to 15 years’ jail last year for murdering his girlfriend. This became the first successful murder conviction by private prosecutio­n.

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