What to do to prosecute privately

2017-02-15 06:02

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Question:

In 2016, my son was assaulted in a bar and the state decided not to prosecute the particular person.

Lately I have heard a lot in the news about private prosecution. How does it work?

Answer:

In terms of Section 7 of the Criminal Procedure Act, a private person may prosecute another person privately, should the director of public prosecutions or the National Prosecuting Authority decide not to prosecute.

A nolle prosequi certificate, valid for three months, will then be issued, which means that a person considering private prosecution has to take the necessary legal steps within three months from the date of issue.

A person considering private prosecution should have an essential and particular interest in the case and he/she must have suffered personal damages as a result of the alleged offence.

Private prosecution also makes provision for spouses to institute such prosecution on behalf of each other, as well as for parents to act on behalf of their children and guardians on behalf of minors.

Furthermore, private prosecution must be instituted in the name of the private prosecutor and the process documents issued in the name of, and at the expense of, the private prosecutor.

A private prosecution is also reported in the name of the parties involved, for example Van Rensburg v Francisco.

A person being privately prosecuted may, however, not be arrested for the relevant charge, but may only be summonsed to appear before the court.

Furthermore, he/she enjoys the same rights as an accused being prosecuted by the state.

Before a person may be privately prosecuted, the private prosecutor has to pay in an amount at the magistrate’s court in the jurisdiction the crime had been committed in. This payment serves as security and is determined by the minister of justice. Currently, this amount is R2 500.

This amount can be forfeited should the private prosecutor fail to pursue the private prosecution against an accused to its end, or where he/she fails to show up.

If the private prosecutor fails to show up for the trial without a valid excuse, the charge against the accused will be dismissed and he/she may not be privately prosecuted for the same offence again.

If the accused pleads guilty on the day of the trial, the National Prosecuting Authority will take over and prosecute further.

While private prosecution is a time-consuming and expensive process, there is always the option to follow this route.

Should you consider it, it is advisable to consult a criminal law specialist to determine the merits of private prosecution in your case.

– Adriaan van Rensburg, associate, Phatshoane Henney Attorneys

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