You can mount private prosecution

Dear CW

The Constitutional Court has found that the social grants contract from the South African Social Security Agency granted to Cash Paymaster Services — and challenged by AllPay — was invalid. Its reasoning was partly that irregularities were all too often “symptoms of corruption or malfeasance”. The US criminal justice authorities are investigating allegations of the firm’s corrupt conduct, but the South African authorities appear to have washed their hands of it. Under what circumstances could a private criminal prosecution be mounted? — Disenchanted

Dear Disenchanted

Under the Criminal Procedure Act, any private person may launch a prosecution if the National Prosecuting Authority declines to prosecute or halts a prosecution, provided certain substantive and procedural requirements are met.

But not every person who is merely annoyed that the authorities have failed to prosecute can become a private prosecutor. A private prosecutor must suffer direct harm or injury from the crime of corruption.

Financial harm caused to a person as a result of the crime would be sufficient. Such harm may well occur as a result of offences under the Prevention and Combating of Corrupt Activities Act. Bear in mind, however, that only private individuals, not companies, can initiate a private prosecution.

Some statutes, such as the National Environmental Management Act, allow private individuals to prosecute crimes either in the public interest or in the interest of protecting the environment. Put simply, a private prosecutor may institute criminal proceedings against parties that pollute the environment even though he has not personally suffered harm.

It is unfortunate that the corrupt activities act does not also allow for private prosecutions of crimes of corruption in the public interest.

So how does a person become a private prosecutor? A prerequisite for a private prosecution is a certificate nolle prosequi, issued by the director of public prosecutions. The certificate states that after examining all the available evidence the director has declined to prosecute the case. The director is obliged to produce such a certificate when a decision to decline to prosecute is taken and the person intending to prosecute instead has asked for it. After obtaining the certificate, the private prosecutor has three months to institute the prosecution, otherwise the certificate will lapse.

The prosecution is initiated by issuing a summons through the clerk of the relevant court in the name of the private prosecutor, not the state.

The private prosecutor must provide security for the costs of the prosecution. He must pay a deposit of R1 500 to the clerk of the magistrate’s court as security that he will prosecute the case to its conclusion as soon as possible. The amount is forfeited to the state in the case of undue delay. A private prosecutor must also deposit security for costs — determined by a magistrate’s court — that the accused may reasonably be expected to bear in defending the case.

It is important to remember that stepping into the shoes of the authority does not give the private prosecutor all the powers that the police has. For example, a private prosecutor cannot arrest the accused to ensure that he attends court. Nor are the investigation powers of the police ceded to the private prosecutor. However, a private prosecutor can still obtain evidence by requiring the accused to produce all relevant documents and subpoena witnesses to testify in the case.

The requirements to become a private prosecutor may seem quite onerous, but if you are a victim of corruption and disillusioned by the authority’s failure to take any action, a private prosecution may be the best way to ensure that justice is done.