NPA ordered to pay costs incurred by AfriForum for private prosecution

The Mamelodi magistrate's court has ordered the National Prosecuting Authority (NPA) to pay the costs incurred by AfriForum’s private prosecution unit after the successful conviction of a man who assaulted his female neighbour.

The organisation said on Monday this was a landmark decision and marked an important milestone in the development of private prosecution in South Africa.

On November 12 the court found Irvin Thabo Ngobeni guilty of assaulting Nthabiseng Sebothoma. He was sentenced to three months in prison or a R6,000 fine, suspended for five years.

AfriForum said section 15(2) of the Criminal Procedure Act states that the court may order the state to pay the private prosecution’s costs and expenses if a private prosecution is initiated after the state declines to prosecute and the accused is convicted.

In this case, the private prosecutors were advocates Phyllis Vorster and Obed Tongoane.

Vorster argued that the NPA’s irrational decision not to prosecute Ngobeni created the need for private prosecution, which resulted in costs being incurred.

“It’s pertinent to point out that the NPA failed to monitor the prosecution with a view of joining the case when the facts became known. Even worse is the NPA’s failure to take charge of the prosecution for sentencing purposes. The NPA missed the opportunity to mitigate the costs associated with a private prosecutor,” Vorster said.

The case stems from an incident on September 23 2023, when Sebothoma was woken up by her neighbour in Moretele View in Tshwane.

Ngobeni claimed someone had thrown his car keys onto the roof of her house and that he needed access to the property to find them. When Sebothoma told him to return at daybreak, he became verbally abusive and threatened to kill her. When she denied him access to the property, he assaulted her by punching and kicking her, as well as scratching her and ripping her clothes.

Gerrie Nel, head of the AfriForum private prosecution unit, said the cost order was an indictment of the NPA’s inexplicable failure to prosecute without fear, favour or prejudice.

Nel said the order sent a message that were consequences when the criminal justice system failed victims.

“It is disturbing that our first three private prosecutions all involved gender-based violence, which the NPA chose not to prosecute. This demonstrates that the criminal justice system only pays lip service to its stated strategy of prioritising cases involving women and children,” Nel said.

The unit also filed an application with the Johannesburg magistrate's court for a costs order against Alexi Bizos and the NPA to cover the costs of his private prosecution. The court is expected to make a ruling on March 28.

The unit assisted Bizos' former wife, Monique van Oosterhout, to privately prosecute Bizos, 63, after he attacked her in 2015 and left her with six broken ribs.

The court found Bizos, son of the late struggle stalwart and lawyer George Bizos, guilty of assault and sentenced him to a R100,000 fine or 12 months' imprisonment as well as six months' correctional supervision, which includes 20 hours a month of community service at shelters for abused women.

TimesLIVE