As former president Jacob Zuma and his supporters have often pointed out, a decision to charge and prosecute an individual may cause serious harm, including to the reputation of the accused person.

If the accused is not a wealthy person and does not have access to unlimited funds from other sources to defend him or herself, they may also be financially ruined by the prosecution. Even if the case is later dropped, or if the accused is ultimately acquitted, it will not undo some of the harm caused.

The problem is well illustrated by the facts of the case of Nundalal v Director of Public Prosecutions KZN and Others (in a judgment of a full bench of the KwaZulu-Natal High Court).

In this case, Mr Nundalal was being privately prosecuted by a certain Mr Singh on charges of defeating the ends of justice and making a false statement. Seemingly, Mr Singh, a wealthy businessman, was using the private prosecution to avenge a previous court loss against the impecunious Mr Nundalal. The high court took a dim view of this abuse of the private prosecution process in the following terms:

“Dragging the applicant, a man who cannot afford to pay his legal costs, through years of litigation, at costs to time, energy, expenses and most importantly, state resources are disproportionate to the alleged offences… Disappointingly his legal team has not dissuaded him from persisting with this debilitating exercise. Indulging the private prosecutor because he has the means to litigate is grossly unfair and disproportionate to its impact on the public purse, the allocation of state resources and the administration of justice.”

Because decisions to prosecute or not to prosecute are open to abuse, the South African Constitution establishes an independent National Prosecuting Authority (NPA), and requires prosecutors to make decisions to prosecute or not to prosecute without fear, favour or prejudice, and in accordance with lawfully adopted policy directives, including a prosecution policy.

The current prosecution policy requires prosecutors to act in good faith when they make prosecutorial decisions, and reminds prosecutors that decisions whether or not to prosecute should “be taken with care, because it may have profound consequences for victims, witnesses, accused and their families”.

As the policy makes clear, a decision to prosecute should only be taken if “there is sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution”.

Section 179(5)(d) of the Constitution provides a further safeguard against abuse, by allowing the National Director of Public Prosecutions (NDPP) to review a decision to prosecute or not to prosecute after taking representations from the accused person, the complainant, or any other relevant person. (Of course, if the NDPP is not independent or honest, this provision can also be abused to facilitate political interference in decisions to prosecute or not to prosecute – as happened when the then acting NDPP dropped charges against Jacob Zuma back in 2009.)

The Constitutional Court explained in Corruption Watch NPC v President of the Republic of South Africa and Others; Nxasana v Corruption Watch NPC that the independence of the NPA was pivotal in upholding the rule of law, pointing out that many criminals – especially those holding positions of influence – will rarely, if ever, answer for their criminal deeds, if the prosecuting authority is “malleable, corrupt or dysfunctional”.

There is also the danger that functionaries within that prosecuting authority would be unlawfully “pressured into pursuing prosecutions to advance a political agenda”.

While the NPA showed worrying signs of malleability, corruptibility and dysfunction during the Zuma years, unconstitutional and unlawful interference in its affairs preceded the election of Zuma as president of the country. The most glaring example was the decision of then president Thabo Mbeki to suspend Vusi Pikoli as NDPP after Pikoli decided to proceed with the arrest of the then police commissioner, Jackie Selebi, and to prosecute Selebi on corruption charges.

To make matters worse, president Kgalema Motlanthe subsequently decided to remove Pikoli from office (a decision that was almost certainly unconstitutional and invalid), despite the fact that Pikoli had done nothing to warrant such a removal.

But even at its most malleable, the NPA seldom instituted prosecutions for actions that do not constitute criminal offences, or where there was not sufficient evidence to provide a reasonable prospect of a successful prosecution.

Notably, in the many, many, legal challenges brought by Zuma to delay or end his own prosecution, he has never made a serious attempt to show that insufficient evidence exists to meet the “reasonable prospect of success” standard for prosecution.

But as the attempt by Zuma to prosecute Ramaphosa illustrates, private persons can also abuse the criminal justice system to advance a political agenda or their own personal or financial interests by launching a spurious private prosecution. Worryingly, in the case of private prosecutions, there are fewer safeguards in place to protect ordinary citizens from such abuses.

As I have pointed out before, on paper section 7 of the Criminal Procedure Act only allows for the private prosecution of individuals in narrowly defined circumstances. But in practice, these restrictions may not prevent the abuse of the system as intended.

First, while a private prosecution can only proceed once the NPA has refused to prosecute and has issued a nolle prosequi certificate, such a certificate does no more than simply confirm that the NPA had declined to prosecute the individual.

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While our law is not entirely clear on this point, the NPA may believe that it is obliged to issue such a certificate when it declines to prosecute – even when the impugned act does not constitute a criminal offence, and even if there is no or little evidence to link the investigated individual to the alleged crime. (This is so despite the fact that a single judge held in Singh v Minister Of Justice And Constitutional Development And Another that the prosecuting authority is not obliged by the provisions of s 7(2) to issue a certificate.)

Ramaphosa’s case illustrates why the NPA should not issue nolle prosequi certificates in cases where the alleged acts do not constitute a criminal offence. Recall that Zuma is attempting to prosecute Ramaphosa for not committing a criminal offence as he is claiming to want to prosecute Ramaphosa for failing to launch an inquiry into the conduct of the NPA and of Billy Downer. This is despite the fact that the National Prosecuting Authority Act prohibits such interference.

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While the act does allow the president to establish an inquiry into the fitness of the NDPP to hold office, launching any other inquiry would amount to improper interference with the carrying out or performance of its powers, duties and functions. Section 32(1)(b), read with section 41(1), makes it clear that this would constitute a criminal offence.

Second, as Professor Jamil Mujuzi pointed out in an article titled “The history and nature of the right to institute a private prosecution in South Africa”, at present the Criminal Procedure Act “does not require that a private prosecutor should have a prima facie case against the accused before he may institute a private prosecution, and the high court has not questioned this position”.

In fact, in Solomon v Magistrate, Pretoria 1950 (3) SA 603 (T), the court suggested that the legislature “must have contemplated that private prosecutors might in many cases have weak grounds for prosecution”. This means that an individual may be subjected to a private prosecution even if there is little or no evidence to show that the accused committed a crime.

Third, the Criminal Procedure Act does not prescribe the form of summons for a private prosecution. However, as the high court noted in Nundalal (in theory at least), the clerk who issues a summons “must be satisfied that the private prosecutor complies with the requirement in s 7(1)(a) [of the Act] in that he has some substantial and peculiar interest in the trial and the personal injury he suffered arising from the commission of the offence which he seeks to prosecute”.

This requirement does provide some protection against abuse, but as the court noted in Nundalal, clerks have a “low-level discretion” when issuing a summons, which means that a summons may well be issued even when these requirements of section 7(1)(a) are clearly not met.

Last, it is at best unclear whether the accused person has a right to make representations before a private prosecution is instituted against them.

A person facing a frivolous or vexatious private prosecution has two options to limit the harm caused by such a prosecution.

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First, when the accused is asked to plead, he or she could challenge the prosecutor’s title to prosecute on the grounds that a valid a nolle prosequi certificate was not issued, or that the private prosecutor did not have some substantial and peculiar interest in the trial and had not suffered a personal injury because of the alleged crime.

Second, he or she could approach the court for an interdict to stop the unlawful prosecution – as Ramaphosa did. The second option may not be available to individuals with limited funds to pay for legal representation.

But as I pointed out earlier, these options may only partially undo the harm caused by a frivolous or vexatious private prosecution.

One way to address this problem would be to require the private prosecutor to obtain permission from the high court before a summons could be issued. As Mujuzi points out, this used to be the position in South Africa before the legislature intervened, as a private prosecution could only be instituted once the high court had established that the private prosecutor had a prima facie case against the accused.

I would add additional requirements, namely that the court must not issue permission if, in its view, the prosecution is frivolous, vexatious, or brought with an ulterior purpose.

Sadly, even if the law is amended as suggested, unscrupulous private parties and their unscrupulous lawyers may still try to abuse the system by approaching the court for permission to pursue a private prosecution against a political opponent or financial rival, despite the fact that they know that there is no prospect that such permission would be granted. DM