“In 2016 my son was assaulted in ‘n bar, however the state decided not to prosecute the particular person. Lately I’ve heard a lot in the news about private prosecution. How does it work?”
While a large percentage of the South African public only recently heard of private prosecution, it is not a new concept, and has been in existence for almost a century, even though it is seldom used.
In terms of Section 7 of the Criminal Procedure Act a private person may prosecute another person privately should the Director of Public Prosecutions/National Prosecution Authority decide not to prosecute.
Should such a decision be taken, a nolle prosequi certificate will be issued. This certificate is then valid for three months, which means that a person considering private prosecution has to take the necessary legal steps within three months from date of issue.
A person considering private prosecution must also note that he/she should have an essential and particular interest in the case, and that he/she must have suffered personal damages as a result of the alleged offence. Private prosecution also makes provision for spouses to institute such prosecution on behalf of each other, as well as for parents to act on behalf of their children and guardians on behalf of minors.
Two or more persons may however not institute private prosecution under the same charge, unless both parties suffered damages due to the same alleged offence.
Futhermore private prosecution must be instituted in the name of the private prosecutor, and the process documents issued in the name of, and at the expense of, the private prosecutor. As with civil cases, a private prosecution is also reported in the name of the parties involved, for example Van Rensburg v Francisco.
A person being privately prosecuted may however not be arrested for the relevant charge, but may only be summonsed to appear before the court. Furthermore he/she enjoys the same rights as an accused being prosecuted by the state. The attorney general can also intervene at any time and take over the prosecution, and then all proceedings in the private prosecution has to be stopped.
Before a person may be privately prosecuted, the private prosecutor has to pay in an amount at the Magistrates Court in which jurisdiction the crime had been committed. This payment serves as security and is determined by the Minister of Justice. Currently this amount is R2500, but it can be amended from time to time, with the particular court also by rights to determine a different amount. This amount can be forfeited should the private prosecutor fail to pursue the private prosecution against an accused to its end, or where he/she fails to show up.
If the private prosecutor fails to without a valid reason to show up for the trial, the charge against the accused will be dismissed and may he/she not be privately prosecuted again for the same offence. The attorney general may however prosecute the accused for that charge. If the accused pleads guilty on the day of the trial, the National Prosecuting Authority will take over and prosecute further.
Private prosecution is a time consuming and expensive process, but if a person is certain that justice has not been done, there is always the option to follow this route. Should you consider it, it’s advisable to consult a criminal law specialist to determine the merits of private prosecution in your case.
This article first appeared on the Phatshoane Henney Attorneys February 2017 2016 newsletter.