[ANALYSIS] What exactly do private prosecutions involve?

The announcement last week by Advocate Gerrie Nel of his resignation from the National Prosecuting Authority (NPA) to head the private prosecutions unit of AfriForum has drawn sharp focus on the circumstances under which a private prosecution may be pursued.

South African law permits (in section 7 of the Criminal Procedure Act) a victim of crime to undertake a private prosecution of the responsible person or people where the state – represented by the NPA – declines to prosecute.

The first point to note here is that a private prosecution may only be pursued once the state has had the option to prosecute and has decided not to. In order to pursue the private prosecution, the interested person - who, as discussed below, must have some peculiar personal interest – must first obtain a certificate from the prosecuting authority in which it declares that it has decided not to prosecute. This is known as a certificate nolle prosequi.

Once this certificate is issued, the interested person may then pursue the prosecution as if he or she were acting on behalf of the state as does a public prosecutor, according to all applicable laws, including the criminal law, the law of evidence, and criminal procedure.

To be clear, the very same laws that would be applied if the state through the public prosecutor’s office prosecuted the case apply. Also, significantly, if a conviction is secured, a prison term may be imposed on the person convicted if the private prosecutor can persuade the court to convict the accused.

The standard of proof is also the same as would apply if the state brought the prosecution. The private prosecutor must prove that the accused committed the offence beyond any reasonable doubt.

In addition, the same court that would otherwise hear the case is the court that will hear the case where a private prosecution is brought.

Therefore the only significant difference is that, whereas in a public prosecution, a public prosecutor employed by the NPA presents the case against the accused, in a private prosecution, it is the victim him or herself, invariably represented by legal representatives, who presents the case against the accused.

It is in this respect (the need to obtain legal representation) that the right to pursue a private prosecution may become illusory. A private prosecutor must fund his/her own prosecution at the very least. In addition, the private prosecutor may be called upon to furnish security in whatever amount a court determines that the defence of the prosecution may cost the accused.

If one considers that a normal team of legal representatives includes an attorney, and a senior and junior advocate, one may appreciate that the costs of a private prosecution are prohibitive. There can be little doubt that for most the right is little more than nice to have. One may guess – putting aside political conspiracies – that this is where Nel’s unit has seen a need and will seek to fill this gap.

Beyond the requirement that a private prosecutor must obtain the necessary certificate, the law is fairly restrictive in respect of who qualifies to pursue a private prosecution. Other than spouses, children or legal guardians of injured parties, only a private person who has some substantial and peculiar interest in the issue of the trial arising out of some injury which s/he individually suffered in consequence of the commission of the offence may pursue a private prosecution (s 7(1)). To date this has been narrowly interpreted by our law to avoid individuals abusing the criminal justice system to pursue “private and personal interests” and also “'to curb . . . the activities of those who would otherwise constitute themselves public busybodies” (National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development & another 2016 (1) SACR 308 (SCA) at para 26; Attorney General v Van der Merwe & Bornman 1946 OPD 197 at page 201).

These are, of course, valid concerns. Our law cannot allow our courts to be flooded by individuals pursuing some personal vendetta against some person who has the misfortune of having upset that person.
Nevertheless, there is a very clear need, well recognised in our law, for private prosecutions.

It is perhaps surprising that there is something much deeper going on here than may at first appear – again, beyond political conspiracies.

The right to pursue a private prosecution is a function ultimately of Rousseau’s social contract. It is the basis on which – supposedly - societies have been able to form and escape blood feuds and ever-increasing violent counter-attacks. Under the social contract, we have all relinquished our right to private vengeance to the state, which in turn undertakes to protect our interests and to ensure that justice is done where any of our interests is injured. Crucial to the social contract is that no one can take the law into his/her own hands.

Private prosecutions serve the same purpose as all law directed at dissuading people from taking the law into their own hands. One may not simply retaliate against someone who has injured you in some way or another and seek private vengeance, one must report your complaint to the public authorities and entrust the public criminal justice system – in which you are ultimately represented by public officials.

However, the law has had to be careful to allow for people to retake the law into their own hands on extremely limited circumstances. For instance, where a police officer is not available to protect you or your property, by ‘public defence’, you may resort to private defence and even, in extreme circumstances and where absolutely necessary, kill your assailant. In the same way, where the criminal justice system is not available to you to vindicate your rights so that you do not resort to private vengeance, our law has had to provide for the right of an injured individual to bring the criminal justice system to bear upon his or her assailant so that justice may prevail after all. There can be little doubt that this concession is as necessary as the right to resort to private defence when attacked.

What remains to be clarified, however, perhaps informed by the ultimate function that private prosecutions are to perform, is how narrowly our courts will continue to interpret the requirement that the interested party seeking to bring a private prosecution must have directly suffered some personal injury. There will be an inevitable tension here between, on the one hand deterring those with private vendettas and the busybodies of the world and allowing on the other, those who seek to empower the injured amongst us so that they may vindicate their rights. These questions become more acute of course, where the state is not only unavailable to assist or refuses to assist, but where the state is utterly dysfunctional in its ability to assist or even worse – where the state itself or its agents are themselves the perpetrators or allied to the perpetrators.

James Grant PhD is an advocate of the High Court of South Africa and a former associate professor of law at Wits University.