When Gerrie Nel resigned from the National Prosecuting Authority on 31 January 2017, the news sent shockwaves through the South African community. While some have speculated that his resignation is due to corruption and instability at the NPA, his move to Afriforum may signal something else entirely. According to reports, Nel is set to join a new private prosecuting unit established by Afriforum. The question for many is what does this mean?

 

Private Prosecutions are not a topic discussed much, even within legal circles, but they are a longstanding tradition in South African law.

 

Under the Constitution, the authority and responsibility for prosecuting criminals is given to the NPA. They are given this responsibility because crimes are considered to be harms against the interests of society at large, not just the individual directly affected. However, the NPA are given a wide discretion to decide which crimes to prosecute. The importance of this discretion can be demonstrated by a prosecutor’s decision not to prosecute a father who accidentally shot his daughter while cleaning his gun or their decision to drop a case of theft to instead spend the resources on investigating and prosecuting drug dealers. While the discretion is important, our law has also recognized the interest a victim may have in seeing a suspect prosecuted. It is this interest that the procedures of private prosecution were intended to address.

 

The Criminal Procedure Act, 1977 provides for a proceeding known as ‘Private prosecution on certificate nolle prosequi’. This proceeding allows interested private parties (spouses or curators) to prosecute an individual if the NPA declines to do so. Until December 2016, the only people who were able to use this procedure were who could prove a substantial and peculiar interest in the matter (e.g. being the victim of the crime) or spouses, curators, or guardians of victims of crimes. The individual concerned has to approach the prosecutor and request a certificate nolle prosequi, a written document confirming that the prosecutor was abandoning the case. Some prosecutors issue these certificates when they close dockets irrespective of a request, informally termed ‘nolly-ing the docket.’

 

The individual then has three months to institute proceedings. Before instituting proceedings, however, the private prosecutor has to pay a fixed amount of money to the court as security that the case will be prosecuted. If the person fails to pay and institute proceedings within the time limit, the certificate lapses and they will not be able to prosecute the case. These requirements were included to make sure that an accused has some certainty as to whether charges were going to be pursued. However, they have indirectly acted as a bar to poorer individuals who are not able to raise the money in time.

 

In fact, private prosecutions are a very costly exercise since the costs are borne entirely by the individual instituting proceedings and there is a possibility that the prosecutor will also have to cover costs of the accused if unsuccessful. This is in addition to any investigations which need to be done. Understandably, private prosecutions were a rarity in South African courts before now.

 

However, on the 8th of December last year, the Constitutional Court handed down a judgement in a case that at the time was a major victory for animal rights activists but largely ignored by others. The case was about two questions: (1) whether the NSPCA had the power to prosecute offences in terms of statute and, (2) if they did not, whether juristic persons (such as companies) could prosecute crimes under certificate nolle prosequi. The Court’s held that the NSPCA had statutory authority to institute private prosecutions but did not deal with the second issue.

 

While the decision doesn’t widen the class of persons who can institute prosecutions to include juristic persons, it seems as though Afriforum are gearing up to try their hand at filing private prosecutions. Since the Constitutional Court did not make a decision on the issue of juristic persons, the door remains open for companies, profit or otherwise, to find out. As the R1.5 million cost SAFCEI’s law suit against the state is demonstrating, the costs of litigation are far less of a barrier to companies than to private individuals.

 

The question now is whether the Constitutional Court will allow our NPA to be privatized.