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State prosecutor Gerrie Nel questions Oscar Pistorius. (Kim Ludbrook, Pool, AP)
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Lobby group AfriForum has denied claims that the organisation serves to protect the rights of the white Afrikaner population in the country.WATCH
One of South Africa’s most well-known public prosecutors, Adv Gerrie Nel, resigned this week and was appointed head of AfriForum’s public prosecution unit.
The question is whether the unit has any potential. Its future depends on one single question: does it have the right to institute a private prosecution? To answer this question, one will have to go through case law and legislation on the issue of private prosecutions.
Although South African law has for many years recognised that a crime victim may institute a private prosecution, there is no express constitutional right to institute a private prosecution.
However, courts have held that a crime victim has a right to institute a private prosecution and in South African law there are two types of private prosecutions.
The first one is instituted by an individual (a victim of crime or his relative or another person authorised by the section to represent the victim) under Section 7 of the Criminal Procedure Act after the Director of Public Prosecutions (DPP) has declined to prosecute and issued a certificate nolle prosequi.
The second category is private prosecution by a person (natural or juristic) on the basis of specific pieces of legislation (no certificate is needed from the DPP) under Section 8 of the Criminal Procedure Act. In this case the private prosecutor does not have to be a victim of crime.
Late last year in a landmark ruling the Constitutional Court extended this right to the National Society for the Prevention of Cruelty to Animals (NSPCA) after they successfully showed that despite ''overwhelming" evidence of cruelty or abuse, the NPA declined to prosecute in a 2010 case in which a camel was slaughtered during a religious ritual in Lenasia, south of Johannesburg.
The primary right to prosecute, however, remains that of the state and a private prosecution is an exception. As early as 1949, the court referred to the right to institute a private prosecution as “very special” (Bornman v van der Merwe, 1946). This is because one of the objects of punishment is to prevent crime victims from taking the law into their own hands.
In Nundalal v Director of Public Prosecutions KZN and Others (2015) the high court held that ‘[a] person whose feelings and good name are injured has the right to prosecute privately if he actually suffers an injury’ and that ‘a decision to deny a private prosecutor the right to prosecute should be taken cautiously not least because it implicates the right to access to the court under s 34 of the Constitution. If he meets all the requirements for a private prosecution under the CPA and the right to prosecute is not hit by the limitation in section 36 of the Constitution, the private prosecution should be allowed to proceed.’
Since 1990 South African Courts have held consistently that juristic persons, such as, ‘companies, close corporations and voluntary associations such as, for example, political parties or clubs’ do not have a right to institute a private prosecution under section 7 of the Criminal Procedure Act.
So what does this mean for AfriForum’s private prosecutions unit?
It is clear that even if an offence is committed against AfriForum, it does not automatically have the right to institute a private prosecution – even if the DPP has declined to prosecute the alleged offender.
This means that AfriForum has at least two ways in which to contribute to the private prosecutions issue in South Africa. One, it would first have to challenge the constitutionality of section 7 of the Criminal Procedure Act and argue that it unfairly discriminates against juristic persons and is therefore contrary to section 9 of the Constitution. The Constitutional Court declined to deal with this argument in the NSPCA’s case. If AfriForum is successful on this front, it will be able to institute private prosecutions when offences are committed against it (when it is the victim of crime).
However, as matters currently stand, should they wish to pursue cases of corruption in the state, for instance, they would have to find a victim of this corruption and a private prosecution would have to be instituted in the victim's name.
Alternatively, AfriForum may offer legal support to victims of crime who have a right to institute private prosecutions under section 7 of the Criminal Procedure Act. In this case, their lawyers could offer free legal representation to a victim of crime. Private prosecutions are very expensive and this would be a big aid (Of course, in the case of a conviction the private prosecutor may get his money back from the offender or from the Department of Justice).
Another role that could be undertaken by the AfriForum’s private prosecutions unit is to enable victims to challenge the NPA’s decisions not to prosecute. Currently a major obstacle is that the NPA does not have guidelines that enable crime victims to challenge the decision not to prosecute.
Finally, in light of the fact that the NPA does not and is not obliged to prosecute each and every case (the NPA’s Prosecution Policy provides for circumstances in which the NPA may decline to prosecute a suspect even if there is evidence that he/she committed an offence), creating an environment to enable as many people as possible to institute private prosecutions is not a bad idea.
As the Court of Appeal in the United Kingdom observed in the 2013 Gujra case: ‘private prosecution is, and… always has been, a safeguard against the feelings of injustice that can arise when, in the eyes of the public, public authorities do not pursue criminal investigations and proceedings in a manner which leads to culprits being brought before a criminal court. The impunity which offenders appear to enjoy can be socially detrimental.’
- Jamil Mujuzi is a professor of law at the University of the Western Cape.
Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.
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