Dear Corruption Watch
The National Prosecuting Authority does not appear to have the appetite to prosecute cases involving corruption on the part of state officials, or committed by those in the private sector who are politically connected. Is it possible for a private citizen like me, or a civil society organisation like Corruption Watch, to step in to prosecute them when the National Prosecuting Authority does not do so?
The short answer to your question is “yes, in certain circumstances”.
Section 7 of the Criminal Procedure Act, 52 of 1977 (the CPA) does provide a basis in law for private citizens to initiate what are referred to as private prosecutions,in situations where the National Prosecuting Authority (NPA) declines to prosecute a criminal case.
A person who has initiated a private prosecution is afforded certain necessary powers under the CPA to discharge the repudiated function, including the power to have a summons issued to force a person charged with an offence to appear before court.
Understandably, given that it would not be in the interests of justice for our courts to be bombarded with individuals seeking to do the NPA’s job, the right to bring a private prosecution is subject to certain limitations.
To bring a private prosecution in South Africa one must satisfy the following requirements:
- Firstly, the director of private prosecutions must have taken a decision not to prosecute the alleged offence or offences in question. This is ordinarily confirmed by way of a certificate that is issued on request.
- Secondly, the party bringing a private prosecution must be a person in the ordinary sense of the word, and not a private company or civil society body like Corruption Watch. (This does not however preclude Corruption Watch from rendering assistance to private persons seeking to prosecute criminal cases).
- Thirdly, the person seeking to institute a private prosecution must be able to show that he or she has a “substantial and peculiar interest” in the case, arising from the harm that they have suffered as a result of the alleged offence. This means that you must be able to demonstrate a sufficiently close connection between the offence in question and the harm caused to you as a result of it. It is arguable that corruption in the public sector has a detrimental effect on all of us, but it remains to be seen whether the courts in South Africa will regard this as satisfying the test of a sufficiently close connection to the harm caused by corruption.
The costs of the process would be for the account of the private prosecutor. The CPA requires a R1 500 deposit with the court to bring the prosecution. This amount will be forfeited to the State in the event that the prosecution is unsuccessful.
In addition, the accused may apply to court to compel the private prosecutor to furnish security for the costs of his or her defence, either in the form of an amount that is paid to the court to be held pending the outcome of the case, or by way of a bond of security. The accused would then in theory be able to recover the costs of his or her defence (at least in part) from the private prosecutor, in the event that the private prosecutor fails to secure a conviction.
In summary, private prosecutions are possible in South Africa, but are not straightforward or without financial risk. To find out more about private prosecutions, and how Corruption Watch might in appropriate cases offer assistance with private prosecutions, don’t hesitate to get in touch with us on firstname.lastname@example.org or 011 242 3900.
• This article was first published in Sunday Times: Business Times