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 The type of prosecution permissible when instituting and conducting prosecution for offences under the Legal Practice Act 28 of 2014 (LPA) or regulations made thereunder, is determined by the provisions of ss 6 and 8 of the Criminal Procedure Act 51 of 1977 (CPA) read with s 63(1)(i) of the LPA. The prosecution regime envisaged by s 6 of the CPA recognises three distinct forms of prosecution in our current legal system. They are the state, statutory, and on certificate nolle prosequi (National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development and Another (Corruption Watch as amicus curiae) 2017 (4) BCLR 517 (CC)).

The legal framework for prosecution is established through the Constitution, the National Prosecuting Authority Act 32 of 1998 (NPA Act) and the CPA. State prosecution is governed by the Constitution and the NPA Act. Section 179 of the Constitution provides for a ‘single national prosecuting authority in the Republic, structured in terms of an Act of Parliament’ and empowers the prosecuting authority to ‘institute criminal proceedings on behalf of the state’. Section 20 of the NPA Act gives effect to that power. The powers conferred by s 20(1) of the NPA Act relate to a prosecution instituted on behalf of the state (National Society for the Prevention of Cruelty to Animals at para 31).

‘[I]n South African law, there are two types of private prosecutions. First, private prosecution by an individual under section 7 of the [CPA] on the basis of a certificate issued by the Director of Public Prosecutions (DPP) – which is the focus of this article; and, secondly, private prosecution by statutory right under section 8 of the [CPA]. The latter type of private prosecution can be undertaken by both natural and juristic persons on the basis of specific pieces of legislation and requires no certificate from the DPP. In such a case, the DPP withdraws his right to prosecute and allows a statutory body or an individual to prosecute certain offences’ (Prof Jamil Ddamulira Mujuzi ‘The history and nature of the right to institute a private prosecution in South Africa’ (2019) 25(1) Fundamina 131).

Private prosecution on certificate nolle prosequi (s 7 of the CPA)

‘In any case in which a [DPP] declines to prosecute for an alleged offence –

(a) any private person who proves some substantial and peculiar interest in the issue … arising out of some injury which he individually suffered in consequence of the commission of the said offence;

(b) a husband, if the said offence was committed in respect of his wife;

(c) the wife or child or, if there is no wife or child, any of the next of kin of any deceased person, if the death of such person is alleged to have been caused by the said offence; or

(d) the legal guardian or curator of a minor or lunatic, if the said offence was committed against his ward, may, subject to the provisions of section 9 and section 59(2) of the Child Justice Act [75 of 2008], either in person or by a legal representative, institute and conduct a prosecution in respect of such offence in any court competent to try that offence’.

In Mullins and Meyer v Pearlman 1917 TPD 639 at 645 the court opined that the private prosecutor must show actual damages suffered. In Ellis v Visser 1954 (2) SA 431 (T) at 436-438, the full court in the Transvaal Provincial Division opined that ‘injury … must be construed … in its legal sense’ to mean ‘an invasion of a legal right’,  ‘an actionable injury’. If all that the private prosecutor can say ‘amounts to little more than that his feelings have been outraged and his good name injured,’ it should be interpreted restrictively. If the private prosecutor has no civil remedy, if he has suffered no actionable wrong then he has no title to prosecute, even if he has suffered prejudice. Furthermore, ‘interest in the issue of the trial’ means a direct interest.

‘The decision to institute a private prosecution under s 7 is entirely that of the private prosecutor to be properly taken only when he is able to meet the jurisdictional requirements for a private prosecution. A certificate is issued for a specific offence. It has a lifespan of three months after which it lapses. This helps to enhance certainty and prevent abuse of private prosecution. The court may interdict a private prosecution on various grounds including the private prosecutor’s lack of locus [standi] and under the Vexatious Proceedings Act 3 of 1956.  … In exercising its discretion the prosecuting authority must have regard to the nature and seriousness of the offence, the interests of the victim and the broader community and the circumstances of the offender’ (Nundalal v Director of Public Prosecutions KZN and Other (KZP) (unreported case no AR723/2014, 8-5-2015) (Pillay J) at para 21-23).

Private prosecution on expressly conferred right (s 8 of the CPA)

‘It has been argued that a private prosecution under section 8 “is not a true ‘private prosecution’ even though it is identified as a ‘private prosecution’ in the Criminal Procedure Act”’ (Mujuzi (op cit) at 143). A body or a person who intends exercising a right of prosecution under subs (1), shall exercise such right only after consultation with the DPP concerned and after the DPP has withdrawn his right of prosecution in respect of any specified offence or any specified class or category of offences with reference to which such body or person may by law exercise such right of prosecution. In such a case, the DPP withdraws their right to prosecute and allows a statutory body or an individual to prosecute certain offences. Section 8 requires that the right to private prosecution be ‘expressly conferred by law’ (National Society for the Prevention of Cruelty to Animals at para 32).

In situations where the legislation establishing a statutory body is vague on the question whether such a body may institute private prosecutions, the Constitutional Court interpreted that legislation so as to permitting the statutory body to institute private prosecution (see National Society for the Prevention of Cruelty to Animals). Section 63(1)(i) of the LPA expressly confers the right, ‘through any person authorised thereto in writing by the chairperson of the Board, to institute a prosecution for the misappropriation or theft of property or trust money, and the provisions of the laws relating to private prosecutions apply to such prosecution as if the Board is a public body’.

Section 179(2) of the Constitution entrenches the power to institute criminal proceedings on behalf of the State. ‘Foreshadowed in subsection 3 is national legislation to detail the implementation of the exercise by the prosecuting authority of its powers and its functions. National legislation prescribes its obligations when a person seeks a private prosecution’ (Nundalal at para 30). The statutory requirements for a private prosecution in s 8 are peremptory and must be strictly adhered to ensure a fair trial (Nundalal at para 32). The DPP might even intervene by way of application to stop a prosecution so that the state can commence or continue the prosecution (Mujuzi (op cit)).

Statutory prosecutions are conducted by public bodies or authorities, and they remain under the control of the DPP. The statutory private prosecutor under s 8 of the CPA cannot stop a prosecution without the DPP’s consent (s 6(b)). Private prosecutions are a departure from the basic law that criminal prosecutions must be conducted by a public prosecutor. ‘[A] decision by a [statutory body] to conduct a private prosecution has to be authorised … ; if not, the prosecution is invalid’ (Mujuzi (op cit) at 133).

Section 10 of the CPA provides:

‘(1) A private prosecution shall be instituted and conducted and all processes in connection therewith issued in the name of the private prosecutor.

(2) The indictment, charge-sheet or summons, as the case may be, shall describe the private prosecutor with certainty and precision and shall, except in the case of a body referred to in section 8, be signed by such prosecutor or his legal representative’.

The provisions of ss 8 and 10 are mandatory and must be adhered to ensure a fair trial. ‘Irrespective of whether the prosecution is public or private, for a fair trial an accused cannot be expected to mount any defence other than to stave off a conviction. Anything else would amount to shifting the goalposts in a private prosecution thus creating uncertainty about what standard an accused must meet. A standard that differs between public and private prosecution and from one private prosecution to the next will not be a foundation for a fair trial’ (Nundalal at para 47). ‘A criminal prosecution, private or public, has consequences potentially invasive and destructive of an accused’s substantive rights to, among other things, personal freedom and security and the rights to a fair trial, of which the right to be informed of one’s accuser and the nature of the accusations are paramount’ (Nundalal at para 30). Consequently, the obligation to satisfy the jurisdictional prerequisite of a statutory prosecution is fundamental to the rights of an accused to a fair trial. ‘[A]n accused in a private prosecution has the same rights as an accused in a public prosecution’ (Mujuzi (op cit) at 156).

‘The [CPA], by necessary implication, accepts that there may be a difference in approach towards attaining a conviction through a private prosecution and a public prosecution’ (S v Tshotshoza and Others 2010 (2) SACR 274 (GNP) at para 7). Section 9 requires of a private prosecutor to furnish security as determined by the Minister and over and above that, in an amount determined by the court in respect of the accused’s costs, which amount may be increased from time to time. Section 16 specifically provides that an accused in a private prosecution may be entitled to a favourable order in case of an unsuccessful prosecution. In the case of public prosecution, the accused is not entitled to an order for costs on his acquittal.

‘In terms of section 20(1) of the [NPA] Act the power to institute criminal proceedings, to carry out the necessary functions and to conduct or discontinue them vests in the prosecuting authority’ (Tshotshoza at para 16). In terms of s 20(5) of the NPA Act any prosecutor shall be competent to exercise any of the powers referred to in subs (1) to the extent that they have been authorised thereto by the National Director or by a person designated by him. In s 20(6) it is specifically provided that the written authorisation shall state the area of jurisdiction, the offences and the court or courts in respect of which such powers may be exercised. The powers to prosecute envisaged in ss 6 and 8 of the CPA are distinct and non-contemporary. The powers that vest in terms of s 20 of the NPA Act do not supersede but complement the powers that vest in terms of s 8 of the CPA (National Society for the Prevention of Cruelty to Animals at para 32).

The institution of a public prosecution for an offence, where the right to institute criminal prosecution is expressly conferred by law, is accordingly untenable and impermissible. The right to prosecute for offences in respect of a trust account conducted by a legal practitioner is expressly conferred by s 63(1)(i) of the LPA. Mujuzi (op cit) argues that the moment the DPP takes over a private prosecution, it becomes a public prosecution. The DPP has no locus standi to institute a private statutory prosecution. ‘[T]he right to a fair trial in terms of section 35(3) of the Constitution includes the right to a prosecutor that acts and is perceived to act without fear, favour or prejudice’ (Bonugli v Deputy National Director of Public Prosecutions and Others (T) (unreported case no 17709/2006, 1-2-2008) (Du Plessis J)). If the prosecution succeeds in disguising private prosecution as a public prosecution, the accused has all the more reason to harbour the perception that the prosecutor is biased (see the Tshotshoza case). Consequently, public prosecution for an offence where the right to prosecute is expressly conferred by law, is procedurally impermissible.

Sipho Nkosi BProc (UKZN) is a legal consultant at Integrity Governance Advisory in Ekurhuleni.

This article was first published in De Rebus in 2021 (Aug) DR 16.