Legal Articles

The legal framework for the prosecution of offences in South Africa is provided for in terms of the Constitution of the Republic of South Africa Act 108 of 1996 (Constitution), the National Prosecuting Authority Act 32 of 1998 (NPA Act) and the Criminal Procedure Act 51 of 1977 (CPA). As a creature of statute, the National Prosecuting Authority (NPA) is vested with the authority to institute and prosecute criminal proceedings on behalf of the State.

Prosecuting Authority

179. (1) There is a single national prosecuting authority in the Republic, structured in terms of an Act of Parliament, and consisting of—

(a) ……

(b) ……

(2) The prosecuting authority has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings.

(Above: Section 179 of the Constitution of the Republic of South Africa Act 108 of 1996)

The question that becomes pertinent is that, in the event that the NPA exercises its discretion and declines to prosecute a matter, is there recourse for the affected parties? We shall look at the provisions of Section 7 of the Criminal Procedure Act 51 of 1977:

7. (1) In any case in which an attorney-general declines to prosecute for an alleged offence-

(a) any private person who proves some substantial and peculiar interest in the issue of the trial arising out of some injury which he individually suffered in consequence of the commission of the said offence;

(b) a husband, if the said offence was committed in respect of his wife;

(c) 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

(d) the legal guardian or curator of a minor or lunatic, if the said offence was committed against his ward,

may, subject to the provisions of Section 9, either in person or by a legal representative, institute and conduct a prosecution in respect of such offence in any court competent to try that offence.

The reasons why the NPA may decline to prosecute in a certain matter are various, but chief amongst them being that the established evidence is not enough to secure a conviction. There is a risk that in the event that the accused is acquitted after a full trial or after the close of the State’s case in terms of Section 174 of the CPA, he/she may institute civil legal proceedings for malicious prosecution and it will be necessary to conduct an inquiry as to whether the rationale to prosecute in the matter was reasonable under the circumstances.

Private prosecution which is not empowered by a special statute, will begin with the issuing of a certificate of nolle prosequi from the office of the Director of Public Prosecutions (DPP). The requester should then initiate the private prosecution proceedings within 3 months, and security may be required to cater for the costs of the accused in defending the matter.

In the case of Mullins and Meyer v Pearlman 1917 TPD 639 the Court noted that the private prosecutor must show actual damages suffered, whilst in Ellis v Visser 1954 (2) SA 431 (T) it was noted that injury may also be interpreted to mean, an invasion of a legal right.

The highly publicised case of the former Member of Parliament of Zimbabwe, Munyaradzi Kereke, is a prominent example of a successful private prosecution. It has also been reported that rights group Afriforum, set up a private prosecution unit in their organisation.

In conclusion, all hope is not lost where parties feel disadvantaged by the decision of the NPA not to prosecute a case. Private prosecution may be pursued in suitable circumstances.

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