19/04/2018 16:24 SAST | Updated 20/04/2018 05:01 SAST

Private Prosecutions: This Is How It Works

The primary right to prosecute remains that of the state, and a private prosecution is an exception.

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South African lobby group AfriForum made legal history in 2017, when it launched the country's first dedicated private prosecutions unit headed by former state prosecutor Gerrie Nel.

At the time of its establishment, Nel said AfriForum's prosecutions unit would chase down people guilty of corruption or other heinous acts that had not been prosecuted by the National Prosecuting Authority (NPA). He claimed to be heading an "outfit that won't take injustice lying down".

The establishment of the unit came amid accusations that the NPA is politically biased and highly selective in the prosecutions it pursues.

On Thursday AfriForum announced that it would prosecute EFF leader Julius Malema for fraud and corruption linked to an On-Point Engineering contract.

This is the second official pursuit of a prosecution that the lobby group is placing against a well-known figure in politics. In October 2017 it began its case against Jacob Zuma's son Duduzane on charges of culpable homicide, following an accident in 2014 in which Duduzane crashed into a minibus taxi in his Porsche, leaving Phumzile Dube fatally injured.

Duduzane has also had a highly controversial business relationship with the Gupta family for several years, and as late as November 2017, AfriForum was urging the NPA to either prosecute him for the car accident, or allow the group to prosecute him privately. On Thursday, according to EWN, the NPA finally announced that it would be bringing charges against Duduzane Zuma relating to the crash.

But how do private prosecutors work, and are they common in South Africa?

Professor Jamil Mujuzi from the University of the Western Cape faculty of law says in South African law, there are two types of private prosecutions: one that is instituted by an individual who is the victim of a crime, or their relative or another person authorised by the section to represent the victim, and one that is brought by a juristic person authorised to so by legislation or by a municipality.

This is the procedure under Section 7 of the Criminal Procedure Act, if the director of public prosecutions (DPP) has declined to prosecute.

"Normally, what happens when a person becomes a victim of crime, is that the offence is reported to the police, who undertake investigations. If the police think that there is a case, then a docket is forwarded to the NPA, and the NPA decides whether to prosecute or not," Mujuzi says.

If the NPA decides not to prosecute, the crime victim can then apply for a "certificate nolle presequi", in which the DPP states that the evidence against the accused has been seen, and the NPA has declined to prosecute.

Mujuzi says it is only then that a private prosecution can take place – within three months, and there are costs involved. Based on the above, he says, AfriForum doesn't have the right to institute a private prosecution of Malema at this point.

"AfriForum does not have the right to prosecute in this case – because there are many cases, including those from the Supreme Court of Appeal, in which South African courts have [ruled] that a private company, an organisation, a political party, and a bank, don't have a right to institute a private prosecution – therefore, based on that, AfriForum does not have a right to do so."

"For a private prosecution to take place, institutions such as AfriForum have to identify a victim of crime, and then [prove that] they represent the victim."

In order for them to conduct a private prosecution, these institutions have to offer legal assistance to victims, Mujuzi says. "This is because South African law on private prosecutions is victim-based, especially when you look at the Criminal Procedure Act."

"What a group like AfriForum would have to do in this case, is to first identify a victim of Malema's offences, and assist him or her," he said.

Mujuzi reiterated that the primary right to prosecute remains that of the state – and a private prosecution is an exception.

Constitutional law expert Pierre de Vos bolstered Mujuzi's interpretation, saying private authorities cannot conduct a private prosecution in their own name. However, he also pointed out that there have been previous examples of successful private prosecutions.

"Yes, there are cases that have been successful – there was one in 2016 [in which] the NPA had previously refused to prosecute a man for the murder of his girlfriend, and the family said they didn't agree with the decision, which led them to launch a private prosecution – and the person was prosecuted."

De Vos was referring to a Pietermaritzburg case of a family known as the Ashamals, who fought for justice for more than a decade, after Western Cape prosecuting authorities declined to press charges when their daughter Rochelle Naidoo was shot dead by her boyfriend, Faizel Hendricks.

Through private prosecutions, the family managed to secure a 15-year prison sentence for Hendricks, in South Africa's first private prosecution for murder.

Advocate Angus McKenzie from the Johannesburg Society of Advocates, on the other hand, says that in the matter involving Malema, AfriForum would have an argument of public interest: "I believe that AfriForum would argue that it has a substantial interest in the matter, as it is a public-interest organisation, and it is in the public interest that public figures like Malema be prosecuted – particularly when the charge against him is one of corruption.

"There is ample authority in other areas of our law for the proposition that public-interest organisations, like AfriForum, have an interest in matters involving the exercise of public powers."