Over the last few months, the words “private prosecution” have been making headlines, and it’s solely because controversial lobby group AfriForum launched the country’s first private prosecutions unit.

But what exactly is a private prosecution? Well, in most cases, South Africa’s National Prosecuting Authority (NPA) decides whether or not to go ahead with prosecuting someone. If the NPA rejects the case, the law does allow for someone to pursue a private prosecution, even though it isn’t specifically detailed in the Constitution.

The two types of private prosecutions

The first type involves a victim of crime (or a person authorised to represent the individual, like a relative for example) instituting a case after the NPA rejected and issued a certificate known as a nolle prosequi (a formal notice of abandonment by a plaintiff or prosecutor of all or part of a suit).

The second category is private prosecution by a human being (natural person) or a group of human beings, a corporation, a partnership, an estate, or other legal entity on the basis of specific pieces of legislation (no certificate is needed from the NPA) under Section 8 of the Criminal Procedure Act.

In this case the private prosecutor does not have to be a victim of crime.

This is what allows AfriForum’s unit, headed by Adv. Gerrie Nel, to pursue private prosecutions (since their inception, they’ve pursued legal action against EFF leader Julius Malema and former president Jacob Zuma’s son, Duduzane.

 Are private prosecutions worth it?

One of the most prominent obstacles for anyone pursuing a private prosecution is proving that they have suffered an injury (whether physical or financial).

It also requires a private prosecutor to make a deposit to the magistrate’s court to ensure that the case will be dealt with timeously. The exact amount is determined by the Minister of Justice.

In the event that the case isn’t concluded or dragged out for some reason, that deposit will go to the state. This is also the case if the charge is dismissed because the private prosecutor didn’t show up in court on the prescribed date.

What if the case is dismissed or the accused acquitted?

In addition to the above-mentioned deposit being forfeited to the state, the court can order the private prosecutor to pay the costs, or part of the costs and expenses incurred during the trial. This will go directly to the accused.

And if the accused is convicted?

In this case, the court can order that any costs or expenses incurred by the private prosecutor be reimbursed by the state.

What is the success rate of private prosecutions?

As of 2018, there have only been two private prosecution cases; one in 2016 was successful and the other, in 1988, was unsuccessful, so there really isn’t enough information to determine whether or not private prosecutions are worth it.