The Big Read: Too many rivers to cross?
It was an odd decision by rock star prosecutor Gerrie Nel to resign from the National Prosecuting Authority to join the controversial AfriForum to pursue private prosecutions on its behalf.
AfriForum has a dubious political mandate and history, and is not legally permitted to conduct private prosecutions. It will only be able to assist private individuals to prosecute in very narrow circumstances.
The NPA, representing the state, normally prosecutes criminal suspects. It must decide whether to prosecute or not to prosecute in an impartial manner. Its members must also adhere to prosecuting policy and policy directives.
If the prosecution of criminal suspects is in effect privatised, the law will not be applied equally to all. Suspects who fall foul of private individuals with pots of money - or of private organisations with their own political agendas - might be prosecuted while other suspects might escape justice.
This would be unfair and pose a threat to the constitutional order.
It is not clear that the NPA always makes decisions on who to prosecute or not in an impartial and competent manner (as its catastrophic decision to prosecute Finance Minister Pravin Gordhan clearly demonstrated).
But the privatisation of prosecutions would strike at the heart of the promise in the constitution that everyone has the right to equal protection and benefit of the law.
Sections 7 and 8 of the Criminal Procedure Act (CPA) provide for limited exceptions to the rule that the NPA, representing the state, should prosecute criminal suspects.
Section 8 of the CPA deals with private prosecutions by bodies that have a statutory right to institute such prosecutions - and is not applicable to AfriForum, which is not a statutory body.
In terms of section 7 of the CPA individuals may launch a private prosecution once the NPA has declined to prosecute a suspect. The private prosecution can then be conducted in person or with a legal representative. AfriForum may hope to aid such individuals.
But section 7(1) of the CPA limits the types of people permitted to pursue the private prosecution of a criminal suspect to the following categories:
Any private person who proves some substantial and peculiar interest in the issue of the trial arising out of some injury suffered in consequence of the commission of the said offence;
A husband, if the said offence was committed in respect of his wife;
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
The legal guardian or curator of a minor or lunatic, if the said offence was committed against his ward.
The effect is to permit private prosecutions only when private and personal interests are at stake.
While AfriForum would be entitled to assist a private individual to prosecute an accused person, this will only be the case when that private individual had a direct interest in the case.
In cases when public officials or private businessmen are suspected of corruption, but the NPA declined to prosecute them, it would be an enormous challenge for AfriForum to convince a court that a private individual had a "substantial and peculiar interest" in the alleged corrupt activities which arose "out of some injury which he individually suffered".
Gerrie Nel will have his work cut out to prove that there was a causal link between the alleged corrupt act and some injury suffered by an individual.
While corruption by public officials or private businessmen will often affect all South Africans in a general sense, it will be difficult to prove that a specific corrupt act injured a specific person in a specific manner.
The Supreme Court of Appeal decided in 1990 in the case of Barclays Zimbabwe Nominees (Pvt) Limited v Black that the term "private person" should be interpreted as meaning only a natural person, and expressly excluded a company or a juristic person (like AfriForum). In that case the SCA held that a corporate body as such has no human passions and there can be no question of the company, as such, resorting to violence.
It was submitted, however, that the temptation to resort to self-help "is not diminished by the fact that the loss sustained relates to a share-holding rather than to some other form of asset".
If, however, Section 7(1)(a) were to be read as including a company then it would only be an injury suffered by the company as such which could give rise to a private prosecution - and not an injury suffered by an individual shareholder or group of shareholders. These would not necessarily coincide.
In terms of section 9 of the CPA a private prosecutor must pay a deposit of R2500 as well as an amount determined by the court as security for the costs which may be incurred in respect of the accused's defence.
In a complex case in which the accused hired expensive lawyers this amount could run into several hundred thousand or even millions of rands.
In terms of section 15 of the CPA the costs and expenses of a private prosecutor must be carried by the private prosecutor himself unless the accused is convicted.
The court may order the convicted person to pay the costs and expenses of the prosecution, including the costs of any appeal against such conviction or any sentence. But the court may also order the state to carry the cost for the prosecution.
In terms of section 16, when an accused charged in terms of section 7 is acquitted, the court acquitting the accused may order the private prosecutor to pay the costs incurred by the accused person.
Lastly, in terms of section 13 of the CPA the National Director of Public Prosecutions, or a local public prosecutor acting on the instructions of the director, may intervene and take over the case at any stage in order to complete the prosecution.
Given the legal rules applicable to private prosecutions, it is clear that Gerrie Nel might not only have made a mistake to associate himself with a right-wing group like AfriForum, but might also have made a mistake in taking on a difficult or arguably even an impossible job.