{"id":154983,"date":"2017-02-04T15:00:22","date_gmt":"2017-02-04T13:00:22","guid":{"rendered":"https:\/\/businesstech.co.za\/news\/?p=154983"},"modified":"2017-02-03T16:27:15","modified_gmt":"2017-02-03T14:27:15","slug":"how-gerrie-nels-private-prosecutions-unit-will-work","status":"publish","type":"post","link":"https:\/\/businesstech.co.za\/news\/lifestyle\/154983\/how-gerrie-nels-private-prosecutions-unit-will-work\/","title":{"rendered":"How Gerrie Nel’s private prosecutions unit will work"},"content":{"rendered":"

South African rights group, AfriForum<\/a>, has made legal history by launching the country\u2019s first dedicated private prosecutions unit to be headed by celebrated former state prosecutor Gerrie Nel<\/a>. The development comes amid accusations that the country\u2019s National Prosecuting Authority is politically biased and highly selective about the prosecutions it pursues. Nel said his main concern was that \u201ceveryone should be equal before the law.\u201d Politics and Society Editor Thabo Leshilo asked legal experts Chantelle Feldhaus and Ren\u00e9 Koraan to explain how it will work.<\/em><\/p>\n

How do private prosecutors work \u2013 are private prosecutorial capabilities (units) common in other countries?<\/strong><\/p>\n

In most countries prosecutors have the power to decide whether to prosecute or not. In other words there\u2019s no principle of compulsory prosecution. This means that people who believe they have been aggrieved can fall through the net if the state declines to prosecute their case.<\/p>\n

Private prosecutions are allowed in many countries under common law. These include Australia<\/a>, Canada<\/a>, Kenya<\/a>, Zimbabwe<\/a> and the UK<\/a> \u2013 as well as many more.<\/p>\n

The South African Criminal Procedure Act<\/a> makes provision for two forms of private prosecutions. Section 7 of the act provides for private prosecution by an aggrieved individual on the basis of a certificate nolle prosequi<\/em> \u2013 a declaration the National Prosecuting Authority (NPA)<\/a> not to prosecute.<\/p>\n

And section 8 provides for private prosecution under statutory right. This means that any person can conduct a prosecution in a court competent to try the offence.<\/p>\n

Private prosecution must be instituted and conducted in the name of the private prosecutor, or prosecutors, in terms of section 10 of the Criminal Procedure Act<\/a>.<\/p>\n

There are certain limits. Two or more people can\u2019t prosecute the same charge except if they\u2019ve been injured by the same offence. And the law limits who can launch and conduct a private prosecution. Someone can only pursue a private prosecution if they can prove substantial interest in a matter, for example if they have suffered an injury. This right also extends to a next of kin \u2013 for example it can apply to a husband if the offence was committed against his wife or child.<\/p>\n

The right also extends to a legal guardian or curator of a minor or lunatic if the offence was committed against someone\u2019s ward.<\/p>\n

How do private prosecutors work with state prosecutors?<\/strong><\/p>\n

The NPA can stop a private prosecution if it wants to prosecute the matter itself. And if the accused in a private prosecution pleads guilty, the prosecution must be continued by the state prosecutor.<\/p>\n

Does South Africa\u2019s constitution make provision for this?<\/strong><\/p>\n

Section 34 of the Constitution of South-Africa <\/a> entitles everyone to bring a dispute to a court or tribunal to seek redress. But there\u2019s no specific constitutional right to institute a private prosecution.<\/p>\n

Section 179 of the Constitution creates a single Prosecution Authority. This has the power to institute criminal proceedings on behalf of the state. A decision on whether or not to prosecute must be based on the NPA\u2019s prosecutions policy<\/a> . Its decisions must be taken impartially \u2013 without fear, favour or prejudice<\/a>. And the prosecuting policy must serve the interest of the public in general, and not a specific group.<\/p>\n

A decision about a prosecution can be reviewed after consulting the relevant Director of Public Prosecutions<\/a>. The review takes into account representations from the accused person as well as the complainant<\/a>. This means that if a person is not satisfied with the decision not to prosecute it can be taken on review.<\/p>\n

What are their pitfalls \u2013 can they be used for political ends or to drive private agendas?<\/strong><\/p>\n

The main hurdle for any private prosecutions will be for individuals to show that they have suffered an injury.<\/p>\n

Before the private prosecutor can go ahead he or she must make a deposit with the magistrate\u2019s court as security that the charge will be prosecuted and brought to a conclusion without delay. The amount of money is determined by the Minister of Justice. Once the accused is called to plead he can apply to the relevant authority to review the amount. The court can then require the prosecutor to deposit any additional amount that\u2019s decided.<\/p>\n

The amount paid as security is forfeited to the state if the private prosecutor fails to prosecute a charge to conclusion, or without undue delay. This also happens if a charge is dismissed because of the failure of the private prosecutor to appear on the court date that\u2019s been set down.<\/p>\n

And if the charge against the accused is dismissed, or the accused is acquitted, or a decision on appeal favours the accused\u201a the court can order the private prosecutor to pay the costs, or part of the costs and expenses incurred during the trial. Payment goes to the accused. And if the court believes that a private prosecution was unfounded and vexatious\u201a it can award the accused costs and expenses.<\/p>\n

In turn, if an accused is convicted on a private prosecution, the court can order the costs and expenses of the private prosecutor to be paid by the state.<\/p>\n

How can a unit such as this one help individuals bring private prosecutions?<\/strong><\/p>\n

An individual\u2019s statutory right to institute private prosecution is seen as a \u201csafety-valve\u201d in the machinery of the law. It\u2019s also seen as an indirect way of controlling corruption and incompetence in the state\u2019s prosecutorial services. A unit like the one set up by Afriforum<\/a> can help an individual if the NPA refuses to prosecute.<\/p>\n

What\u2019s the history of private prosecutions in South Africa \u2013 any successes?<\/strong><\/p>\n

Even though private prosecutions have been allowed in South African for almost 100 years<\/a>, its fairly rare. There have, however, been two important cases.<\/p>\n

In 1988 the then Attorney General of the Cape declined to prosecute a 13-man security police task force responsible for the murder of three people<\/a>. The families of some of the victims took the case to court in South Africa\u2019s first private prosecution, but failed to win a conviction.<\/p>\n

In the other, Faizel Hendricks was sentenced to jail for 15 years<\/a> in 2016 for murdering his girlfriend 10 years earlier. This became the first successful murder conviction by means of private prosecution in South Africa.<\/p>\n