Since the handover of the first report from the Zondo Commission, we have been inundated with questions about the possibility of private prosecutions. Not only of individuals who were exposed for their involvement in looting the country, but also companies. But it isn’t that easy. Here’s why.

Private prosecution is a procedure in terms of the Criminal Procedure Act. It allows private individuals to prosecute an accused person in circumstances where the National Prosecuting Authority (NPA) declines to do so. In terms of the Criminal Procedure Act (CPA), only people with a direct interest may institute private prosecution proceedings. 

Not just anybody is seen as a person with direct interest. The law defines it as: 

- Any private person who proves a substantial and particular interest in the issue of a criminal trial arising from an injury that person suffered due to the offence in question;

- The spouse, child or next-of-kin of a person who died as a result of that crime;

- The legal guardian of a minor or mentally incapacitated person who was the victim of the crime.

Currently, the law states that only individuals as listed above can privately prosecute. It does not make provision for entities such as private companies or associations (such as OUTA) to conduct private prosecutions. This dilemma is also compounded by the fact that entities cannot necessarily suffer an “injury” from a particular crime committed. This injury (as it currently stands) is a personal injury that cannot be transferred to an entity – it sticks to the person suffering from it.

Legally, a person that qualifies to institute private prosecution proceedings may do so in his or her own name, but can approach a legal representative to help them.  

Before private prosecution can happen, the NPA must first decide not to prosecute, and then issue a nolle prosequi certificate to confirm that it declines to prosecute. 

Where does that leave civil society when it comes to privately prosecuting state capture offenders? 

The Criminal Procedure Act will need to be amended. It is OUTA’s view that, when this law was made, the legislator could not reasonably have foreseen the current political climate, state capture or the rampant corruption the NPA is faced with.  We believe that there is a case to be made for civil society to privately prosecute on an ad hoc basis in certain instances. The current situation warrants a change in the law to allow for a bigger scope for private prosecutions, whether the NPA declines to prosecute because of capacity constraints or lack of political will. 

We argue that the scope of who may institute private prosecution proceedings must be extended to include private entities as well as private individuals. However, the specific crimes under which civil society may privately prosecute needs to be limited to crimes committed by the state (i.e. municipalities, state-owned institutions, etc). As the public does hypothetically suffer “injury” from crimes committed by state-owned institutions due to the involvement of public funds or property, civil society may have a compelling case to ensure that provision be made for such private prosecution. 

The Criminal Procedure Act needs to expand on the interest that an affected person suffered due to a particular crime. Additionally, the Criminal Procedure Act also needs to classify the public as affected persons in instances where crime is committed by the state.

However, any changes to laws should always be approached with caution, especially when it comes to prosecution, as extending such powers could easily be abused.  We must remember that the NPA has the exclusive power to prosecute, and that we as civil society fund them through our taxes to do their jobs and protect us.