Who can bring a private prosecution in South Africa – here’s what the law allows

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Did you suffer by the action you want to prosecute? Do you have cash for a prosecution?

While a number of political parties and lobby groups – such as Helen Suzman Foundation and Freedom Under Law – have been able to go to courts to challenge decisions taken by the executive‚ these cases were dealt with under the auspices of the civil courts.

Courts have said that these organisations promote accountability and to advance respect for the rule of law.

By contrast‚ prosecutions remain the preserve of the National Prosecuting Authority‚ unless the NPA refuses to prosecute.

The Criminal Procedure Act sets stringent requirements before a private prosecution can begin.

Firstly‚ the law states a private person may institute and conduct a prosecution in respect of an offence if the director of public prosecutions declines to prosecute.

However‚ the law limits the people who can launch and conduct a private prosecution.

These include any private person who can prove some peculiar and substantial interest in the issue of the trial arising out of some injury which the person individually suffered.

They also include a husband if the 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 may launch a private prosecution if the death of such a person is alleged to have been caused by the said offence.

The cases that had been suggested AfriForum would prosecute include those involving acting police commissioner Khomotso Phahlane‚ Hawks head Berning Ntlemeza and SA Airways board chairperson Dudu Myeni.

However‚ the main hurdle for the private prosecution of these cases will be for the individuals in these cases to show some injury which they had personally suffered as a result of that offence.

Most of the cases‚ such last year’s Economic Freedom Fighters Constitutional Court challenge against President Jacob Zuma’s refusal to obey the Constitution‚ were not focused on an injury suffered by the political party. The case focussed on the lawfulness of the president’s action.

That is the same with the application by the Democratic Alliance last year‚ which successfully set aside the NPA’s decision to discontinue the prosecution of Zuma.

The requirements of a private prosecution do not end there.

The law also requires the private prosecutor not to issue any process unless he deposits with the magistrate’s court money as security that he will prosecute the charge against the accused to the conclusion without delay.

If the accused is not happy with the amount deposited as security‚ he could require the prosecutor to deposit the additional amount.

The law also states that where the charge against the accused is dismissed or the accused is acquitted‚ the court may order the private prosecutor to pay to the accused the whole or part of any costs and expenses incurred in connection with the prosecution.

And where the court is of the opinion that a private prosecution was unfounded and vexatious‚ it shall award to the accused at his request such costs and expenses incurred in connection with the prosecution.

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