Recent Case: Criminal Procedure

• Citation: (2023) 36 SACJ 498
• DOI: https://doi.org/10.47348/SACJ/v36/i3a8
• Published date: 13 March 2024
• Pages: 498-509
• Author: Watney, M.
• Date: 13 March 2024

RECENT CASES

Criminal procedure

MURDOCH WATNEY

University of Johannesburg

1 The abuse of private prosecution as part of the

Stalingrad trial delay strategy

The South African criminal justice system faces serious credibility

challenges on a wide spectrum. T he unacceptably high crime rate

coupled with low detection and disappointing statistics on successful

criminal i nvestigations contribute to what can be called a crime crisis (see

in general D Bruce ‘ANC call for more police won’t solve South Africa’s

crime crisis’ ISS, , 26 Januar y 2023, available at at https://issafrica.org/

iss-today/anc-call-for-more-p olice-wont-solve-south- africas-crime -

crisis#:~:text=ANC%20call%20for%20more%20police,Africa’s%20

crime%20crisis%20%2D%20IS S%20Africa&text=The%20African%20

National%20Congress’%20solutions,the%20real%20problems%20

facing%20policing ).In addition to these investigative challenges,

criminal cour t proceedings are often delayed, frustrated or entirely

derailed by what is commonly referred to as the ‘Stalingrad’ litigation

strategy. This challenge is not brought about by the proper exercise of

an accused person’s constitutional fair trial rights, but by an ingenious

manipulation and abuse of these rights and the applicable procedural

rules. Many examples of such abuse exist, the most recent being the

cynical application of s 7 of the Criminal Procedure Act 51 of 1977 (the

Act) which provides for private prosecutions (also see Moyo v Minister

of Justice and Constitutional Developm ent 2018 (2) SACR 313 (SCA);

M Watney ‘The prosecution’s duty to disclose: more reason to litigate’

(2012) 2 TSAR 320; Democratic Alliance v President of the Republic of

South Africa [2019] 1 All SA 681 (GP); M Watney ‘No title to prosecute:

grasping at straws or tactical move?’ (2022) TSAR 405at 410-417).

Apart from prosecutions on beha lf of the state, the Act provides in s 7

for a private prosecution subsequent to the issuing of a certicate n olle

prosequi, as well as a private prosecution by statutory right in term s of

s 8 (National Society for the Prevention of Cruelt y to Animals v Minister

of Justice and Constitutional Developm ent 2017 (1) SACR 284 (CC) at

para [32]; E Du Toit et al Commentary on the Criminal Procedure Act

https://doi.org/10.47348/SACJ/v36/i3a8

(2023) 36 SACJ 498

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