February 9, 2017

What you need to know about private prosecution

Frank Setati

Gerrie Nel’s decision to resign from the National Prosecuting Authority to join Afriforum’s Private Prosecutions Department (department here used loosely) was met with mixed legal emotions from all and sundry.

In the South African Criminal Justice System, the NPA, on behalf of the State, is clothed with the authority to prosecute alleged criminal offenders. The NPA further makes the final decision and therefore exercises discretion whether or not to prosecute alleged criminal offenders. This decision must be made without fear, favour or prejudice. The discretion is a fettered one subject to the Constitution.

While in common parlance the NPA is tasked with the prosecution of criminal offenders, an exception is provided in terms of sections 7 and 8 of the Criminal Procedure Act 51 of 1977 (as amended) to allow private prosecutions to be instituted and conducted in instances where the NPA declines to prosecute.

While section 7 makes provision for private individuals (natural persons) to prosecute privately, section 8 gives this authority to statutory bodies. For private prosecutions to be instituted in terms of section 7, the NPA must, in addition to having declined to prosecute, issue a nolle proseque certificate as proof that it has declined to prosecute on behalf of the State. Statutory bodies on the other hand must have been expressly conferred with the authority to institute and conduct a private prosecution.

An aggrieved person can then on their own or with the aid of a legal practitioner prosecute the criminal offender privately. The types of natural persons authorised to prosecute privately in terms of section 7(1) of the CPA are:

  • Any private person who proves some substantial and peculiar interest in the issue of the trial arising out of some injury which he or she individually suffered in consequence of the commission of the said offence;
  • A husband, if the said offence was committed in respect of his wife;
  • The wife, or child, or if there is no wife or child, any of the next of kin of any deceased person, if the death of such person is alleged to have been caused by the said offence; or
  • The legal guardian or curator of a minor or lunatic if the said offence was committed against his ward.

From the list of natural persons provided in terms of section 7(1) above, it may be relevant to consider whether the loss of a loved one – the loss of lives of the 94 mentally ill patients readily springs to mind – would find a basis for private prosecution for Culpable Homicide.

Robin Twaddle & Associates ©2017, All rights reserved. - Disclaimer