The decision by rock star prosecutor Gerrie Nel to resign from the National Prosecuting Authority (NPA) to join the controversial Afriforum – in order to pursue private prosecutions on their behalf – is odd. Apart from the fact that Afriforum has a dubious political mandate and history, the organisation is currently not legally permitted to conduct private prosecutions. Moreover, it will only be able to assist private individuals to prosecute in very narrow circumstances.
In South Africa, the National Prosecuting Authority (NPA), representing the state, normally prosecutes criminal suspects. The NPA must make decisions on whether to prosecute or not to prosecute in an impartial manner, without fear, favour or prejudice. Members of the NPA must also adhere to prosecuting policy and policy directives. It is important for a single, impartial, prosecuting authority to make decisions on who to prosecute and to conduct prosecutions to ensure that all suspects are treated fairly.
Where the prosecution of criminal suspects is in effect privatised, the law will not be applied equally to all. Suspects who fall foul of private individuals with pots of money or fall foul of private organisations with their own political agendas might be prosecuted, while other suspects might escape justice. This is fundamentally unfair and will pose a threat to the constitutional order.
Although it is not clear that the current leadership of the NPA always make decisions on who to prosecute and who not to prosecute in an impartial and competent manner (as the NPA’s catastrophic decision to prosecute Finance Minister Pravin Gordhan clearly demonstrated), the wholesale privatisation of prosecutions will strike at the very heart of the promise in the Constitution that everyone is equal before the law and has the right to equal protection and benefit of the law.
However, section 7 and 8 of the Criminal Procedure Act (CPA) provide for limited exceptions to the rule that the NPA, representing the state, should prosecute criminal suspects. Section 8 of the CPA deals with private prosecutions by bodies which have a statutory right to institute such prosecutions and is not applicable to Afriforum, which is not a statutory body.
In terms of section 7 of the CPA some private individuals may launch a private prosecution once the NPA has declined to prosecute a suspect and has issued a so-called nolle prosequi certificate to that effect. The NPA has a duty to provide such a certificate when it has declined to prosecute. The private prosecution can then be conducted either in person or with the assistance of a legal representative. I imagine Afriforum is hoping to aid such individuals.
But where Afriforum will find the private individuals to assist to prosecute is not clear. This is because section 7(1) of the CPA limits the types of people who are permitted to pursue the private prosecution of a criminal suspect to the following categories:
The effect of s 7(1) of the CPA is to permit private prosecutions only where private and personal interests are at stake. This is explained in the 1946 high court judgment of Attorney General v Van der Merwe and Bornman where the court explained:
“The object of the phrase [substantial and peculiar interest] was clearly to prevent private persons from arrogating to themselves the functions of a public prosecutor and prosecuting in respect of offences which do not affect them in any different degree than any other member of the public; to curb, in other words, the activities of those who would otherwise constitute themselves public busybodies.”
The high court (in the moralistic and paternalistic language often used by courts at the time) explained that an affected person could only launch a private prosecution where it had a direct interest in the case and suffered a direct injury because of the actions of the accused:
“The interest the legislature had in mind may be pecuniary, but may also be such that it cannot sound in money – such imponderable interests, for example, as the chastity and reputation of a daughter or ward, the inviolability of one’s person or the persons of those dear to us. Permission to prosecute in such circumstances was conceived as a kind of safety valve. An action for damages may be futile against a man of straw and a private prosecution affords a way of vindicating those imponderable interests other than the violent and crude one of shooting the offender. The vindication is real: it consoles the victim of the wrong; it protects the imponderable interests involved by the deterrent effect of punishment and it sets at naught the inroad into such inalienable rights by effecting ethical retribution. Finally, it effects atonement, which is a social desideratum.”
While Afriforum would be entitled to assist a private individual to prosecute an accused person, this will only be the case where that private individual had such a direct interest in the case.
In cases where public officials or private business-men or -women are suspected of corruption and where the NPA declined to prosecute them, it would be an enormous challenge for Afriforum to convince a court that a private individual had a “substantial and peculiar interest” in the alleged corrupt activities which arose “out of some injury which he individually suffered”.
Gerrie Nel will have his work cut out to prove that there was a causal link between the alleged corrupt act and some discernible injury suffered by an individual citizen. While corruption by public officials or private business men or women will often impact negatively on all South Africans in a general sense, it will be difficult to prove that a specific corrupt act injured a specific person in a specific manner.
Two years ago, the SPCA challenged the constitutionality of section 7(1) of the CPA, arguing that there is no good reason for the section to differentiate between natural persons and juristic persons (like Afriforum) and for allowing only natural persons to launch private prosecutions. The SPCA argued that this was irrational and in breach of section 9(1) of the Constitution.
The Constitutional Court declined to consider this challenge because it held that the SPCA – as a statutory body with the power to litigate – had the power in terms of section 8 of the CPA to institute private prosecutions.
However, the Supreme Court of Appeal (SCA) did consider and reject this argument in National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development. It noted that section 7 of the CPA restricted the right to institute private prosecutions to individuals whose human dignity had been directly infringed. As human dignity is a foundational value of our Constitution, there was nothing irrational about the distinction between private individuals and organisations.
The SCA also noted that it had decided in 1990 in the case of Barclays Zimbabwe Nominees (Pvt) Limited v Black that the term “private person” should be interpreted as meaning only a natural person, and expressly excluded a company or a juristic person. In that case the SCA held that:
“A corporate body as such has no human passions and there can be no question of the company, as such, resorting to violence. It was submitted, however, that the temptation to resort to self-help “is not diminished by the fact that the loss sustained relates to a share-holding rather than to some other form of asset”. If, however, s 7(1)(a) were to be read as including a company then it would only be an injury suffered by the company as such which could give rise to a private prosecution and not an injury suffered by an individual shareholder or group of shareholders. These would not necessarily coincide.”
In terms of section 9 of the CPA a private prosecutor must pay a deposit of R2,500 as well as an amount determined by the court as security for the costs which may be incurred in respect of the accused’s defence. In a complex case in which the accused hired expensive lawyers this amount could run into several hundred thousand or even millions of rand.
In terms of section 15 of the CPA the costs and expenses of a private prosecutor must be carried by the private prosecutor him or herself unless the accused is convicted in which case the court may order the convicted person to pay the costs and expenses of the prosecution, including the costs of any appeal against such conviction or any sentence. But the court may also order the state to carry the cost for the prosecution.
In terms of section 16, where an accused charged in terms of section 7 is acquitted, the court acquitting the accused may order the private prosecutor to pay the costs incurred by the accused person.
Last, in terms of section 13 of the CPA the National Director of Public Prosecutions (NDPP) or a local public prosecutor acting on the instructions of the NDPP may intervene and take over the case at any stage in order to complete the prosecution.
Given the legal rules applicable to private prosecutions, it is clear that Gerrie Nel might not only have made a mistake to associate himself with a right-wing group like Afriforum, but might also have made a mistake in taking on a difficult or arguably even an impossible job. DM
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Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.
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