Adv. Adv. Gerrie Nel, Head of AfriForum’s private prosecution unit, recently explained how private prosecution works and what such a unit entails.

The process in a nutshell

After a case is reported to the SAPS, the National Prosecuting Authority (NPA) must decide whether it will prosecute the offender. If the NPA declines to prosecute and AfriForum is of the opinion that there are grounds for a successful prosecution, the private prosecution unit may approach the NPA (in terms of section 7 of the Criminal Procedure Act) and apply for a nolle prosequi certificate. The certificate then gives anyone the right to institute prosecution in their own name.

Upon receipt of an application for a nolle prosequi certificate, the NPA may reconsider the case and decide to institute prosecution. If this is the case, AfriForum will not be entitled to a nolle prosequi certificate.

“Even if AfriForum’s private prosecution unit is already in the process of prosecuting a case, it is important to know that the NPA is compelled to take it over from us if it becomes clear that a successful prosecution is possible. This obligation has as foundation the state’s duty to prevent the payment of costs.

“AfriForum may decline this, but it is quite unlikely, as we will then be responsible for the legal costs in a case that the state offers to prosecute further at their cost,” Nel explained.

It is also very likely that the NPA will monitor a case that the unit is privately prosecuting, and – if it looks like the unit is going to win – will request to prosecute it once again, because they know that, if the unit wins, the legal costs will have to be paid to AfriForum. Nel points out that this would also be considered a success, as it will mean that the case is lawfully prosecuted.

Nel also mentioned that he had been asked before if the state would not want to lose such a case intentionally. He is convinced, however, that no prosecutor would willingly lose a case. He also explained that such a case is prosecuted in public and that AfriForum would follow it meticulously to ensure that justice prevails.

Legal costs

Once the unit is in possession of a nolle prosequi certificate, AfriForum must provide financial guarantees to prove that if will be able to pay the costs if the accused is found innocent. “If we lose, AfriForum will be responsible for all legal costs. Therefore, the choice of cases and the preparation for these cases are very important so that we can prosecute successfully,” Nel explained. The law requires that prosecution must commence within three months after the nolle prosequi certificate has been issued This emphasises proper preparation and careful consideration of which cases to take on.

Nel made it clear that the focus will not only be on cases of national interest, but that AfriForum would like to get involved in cases on local level where there are signs of selective prosecution.

Challenges

Nel said that, although the concept of private prosecution is unbelievably exciting, it will be a difficult and challenging road. “It has never been done before, and everything we do is pioneer work.”

He is preparing himself for extreme frustration in the collection of affidavits and evidence. People must realise that it is quite different from NPA prosecutors who have the whole police service at their disposal to collect affidavits and evidence. AfriForum will have to do this themselves. He realises that there will be parties and individuals in the process who would want to make it difficult for them.

Nel pointed out that, as soon as private prosecution is instituted, the prosecution will continue with the same process and rules of evidence as with other criminal cases. As the state does, the unit will carry the onus to proof an accused’s guilt beyond any reasonable doubt.

Hy said that the public and AfriForum members must realise that the unit will not disclose the names of accused people in the media. This would not only be inherently unfair, but would also put undue pressure on the unit to prepare for such a case. Once they are ready to apply for a certificate, however, the unit will identify the specific case.

According to Gerrie, the private prosecution unit – which is made possible by contributions from AfriForum members – is an historic turning point in the country’s legal process. “I think that in a year or two from now we would be looking back and wonder why a private prosecution unit was not established sooner,” he said.