Private Prosecution Unit secures arrest warrant against Jaco Swart
AfriForum’s Private Prosecution Unit has secured a significant legal victory that has contributed to the development of the law related to private prosecution. Yesterday morning the Kuilsriver Magistrates Court issued an arrest warrant for convicted wife-beater Jaco Swart in a case where he is accused of assaulting a policewoman. The unit, led by Adv. Gerrie Nel, filed the application last Monday.
In terms of the Criminal Procedure Act a case needs to be properly enrolled. This entails, among other procedures, ensuring that the accused person is served with a summons to appear in court. But unlike the state, a private prosecutor does not have the power to arrest, and only a summons may be used to secure the accused person’s attendance in court. If the accused person fails to appear in court on the summons, the private prosecutor may apply for an arrest warrant.
In the case of Jaco Swart, the private prosecutor was unable to serve summons on the accused because he has fled the country. Last Monday in the Kuilsriver Magistrates Court, Adv. Nel called Warrant Officer Riaan Booysen, who is investigating a fraud case against Swart, to testify that the accused had fled to the United Kingdom unlawfully. He further testified about how his own efforts to arrest him were unsuccessful.
It has been established that Swart left South Africa through the Lebombo border post using a friend’s passport. It is understood he then entered Ireland, where South Africans don’t need a visa to visit, before making his way into the United Kingdom. He is believed to be working in Windsor. Booysen told the court that his request to the National Prosecuting Authority (NPA) to extradite Swart was turned down because it would entail “too much paperwork”.
Nel argued that a private prosecutor, who is only empowered to issue summons, should not be prejudiced by the NPA’s failure to fulfil its duty.
Magistrate Nokuzola Sibeko said in her judgment yesterday, that the “applicant before this Court has exhausted less invasive measures at her disposal for securing the attendance of the accused in order to have this matter dealt with in accordance with justice.
“The evidence adduced by the Applicant contains, to my satisfaction, the necessary evidence that an offence was committed, that the reasonable suspicion exists that the Accused committed the offence in question, and that such occurred within the jurisdiction of this court.
“In exercising my discretion, I am guided by what the proper administration of justice would dictate under the circumstances presented before me. It is my view that the private prosecutor bringing this application has complied with all the procedural and substantive requirements set out by the law,” said Sibeko before issuing the warrant of arrest.
The case was postponed indefinitely, to allow further efforts to secure Swart’s appearance in court to continue. The unit has already written to the British High Commission to inform them of Swart’s status in the United Kingdom. The hope is that he will be deported.
