Extending the private prosecution provisions of the Criminal Procedure Act 51 of 1977 to cover Private Prosecution in the public interest

• Date: 01 July 2020
• Published date: 01 July 2020
• Pages: 1-23
• Author: Phindile Raymond Msaule
• DOI: 10.25159/2522-6800/7027

Article

Southern African Public Law

https://doi.org/10.25159/2522-6800/7027

https://upjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online), 2219-6412 (Print)

Volume 35 | Number 2 | 2020 | #7027 | 23 pages

© Unisa Press 2021

Extending the Private Prosecution Provisions of the

Criminal Procedure Act 51 of 1977 to Cover Private

Prosecution in the Public Interest

Phindile Raymond Msaule

University of Limpopo, South Africa

raymond.msaule@ul.ac.za

Abstract

Criminal prosecution is generally the preserve of the state. However, there are

legislated exceptions that allow for private prosecution. For example, section 7

of the Criminal Procedure Act 51 of 1977 entitles individuals who satisfy certain

criteria to prosecute in their own names. Section 8 of the Act, on the other hand,

provides for statutory private prosecution. Statutory private prosecutions are

limited to certain bodies and certain types of offences. In this article, it is

submitted that private prosecution must be extended beyond the realm of

sections 7 and 8 of the Act or the currently statutory sanctioned private

prosecution. It is contended that section 7 of the Act must be amended to include

the prosecution of corruption and related offences, on the one hand, and money

laundering and related offences, on the other, in the public interest. It is

submitted that there are safeguards to avoid private prosecution being abused.

Furthermore, the allowance of private prosecution in the private interest would

not impinge on the status of the National Prosecuting Authority (NPA) as the

constitutional body mandated to institute prosecutions on behalf of the state.

This is because a prospective private prosecutor may institute proceedings only

in the event that the NPA declines to prosecute or on the basis of unreasonable

delay on the part of the NPA to institute prosecutions.

Keywords: individually suffered; nolle prosequi; private prosecution; public interest;

substantial and peculiar interest

Msaule

2

Introduction

In the recent past, AfriForum indicated that it intended to privately prosecute Mr Julius

Malema, the leader of the second largest opposition party in the National Assembly, for

corruption and related charges.

1

This announcement created a lot of media frenzy.

However, what was missing in the media commentary in relation to this ‘developing’

story is that AfriForum said it would charge Mr Malema in the event the NPA declines

to prosecute.

2

The importance of this caveat is that private prosecution may only arise

when the National Prosecuting Authority (NPA) has refused to prosecute. There is a

proliferation of groups with intentions to institute private prosecutions.

3

However, as in

the AfriForum case, these groups tend to deliberately ignore or conveniently forget that

prosecution is the preserve of the state, except in certain circumscribed circumstances.

According to section 7 of the Criminal Procedure Act 51 of 1977 (the Act), an individual

would qualify to institute private prosecution in the event the state declines to prosecute.

The individual, in the context of section 7 of the Act, is limited to natural persons.

4

Even

in this regard, the entitlement is not automatic upon the refusal by the state to prosecute.

In addition, section 7(1)(a) states that the individual must prove that he or she has

‘substantial and peculiar interest in the issue of the trial arising out of some injury which

he individually suffered.’ Section 8 extends the right to private prosecution to bodies or

persons upon which the law has expressly conferred this right.

5

However, in a modern, highly industrialised society, a plethora of offences do not, at

least in the ordinary sense of the phrase, affect any person individually in a substantial

and peculiar manner. For instance, corruption and related offences

6

on the one hand and

money laundering and related offences

7

on the other do not always affect one individual

more than they affect any other member of the public.

8

However, these offences have

the potential to erode the fabric of society and undermine democracy and the fulfilment

1

Marelie Greef, ‘Gerrie Nel and AfriForum Plan to Privately Prosecute Malema for Corruption’

(AfriForum, 19 April 2018) <https://www.afriforum.co.za/gerrie-nel-afriforum-plan-privately-

prosecute-malema-corruption/> accessed 8 May 2018. AfriForum describes itself as ‘[a] civil rights

organisation that mobilises Afrikaners, Afrikaans-speaking people and other minority groups in South

Africa and protects their rights.’ This organisation has a unit dedicated to private prosecutions. See

˂https://www.afriforum.co.za/en/˃ accessed 25 October 2019.

2

Amanda Khoza, ‘Afriforum to Privately Prosecute Malema’ (News24, 19 April 2018)

<https://www.news24.com/SouthAfrica/News/breaking-afriforum-to-privately-prosecute-julius-

malema-20180419> accessed 23 May 2018.

3

Simnikiwe Hlatshaneni, ‘SARS Bigwigs Facing Private Prosecution’ (The Citizen, 22 March 2018)

<https://citizen.co.za/news/south-africa/1863691/sars-former-hot-shots-face-private-prosecution/>

accessed 8 May 2018.

4

See Barclays Zimbabwe Nominees (Pvt) Ltd v Black 1990 (2) All SA 576 (A) 580; Telecel Zimbabwe

(Pvt) Ltd v Attorney-General, Zimbabwe NO Civil Appeal SC 254/11 2014 ZWSC 1 (28 January 2014)

contrasts the South African and Zimbabwean positions in this regard.

5

See National Society for the Prevention of Cruelty to Animals v Minister of Justice 2017 (1) SACR

284 (CC).

6

Prevention and Combating of Corrupt Activities Act 12 of 2004.

7

Prevention of Organised Crime Act 121 of 1998.

8

Levy v Benatar 1987 4 SA 693 (Z) 700.