The Supreme Court of Appeal (SCA) has left unresolved a “novel question of law” on whether a private prosecutor who has obtained a certificate not to prosecute is entitled to confidential representations made by an accused to the National Prosecuting Authority (NPA).
The SCA ruled that the private prosecutor failed to join the accused in the proceedings, which disposed of the matter.
This matter arose after Christo Johan Rose laid criminal charges against Elrico Esterhuizen. This resulted in the institution of criminal proceedings against Esterhuizen for attempted murder in the Vryburg regional court.
After his court appearance, Esterhuizen made certain representations to the senior public prosecutor, which resulted in the withdrawal of the criminal charges against him.
In October 2024, the director of public prosecutions in Mahikeng confirmed the senior public prosecutor’s decision not to prosecute Esterhuizen.
Rose initially sought such representations as well as the certificate not to prosecute from the senior public prosecutor in Vryburg. Later, Rose requested the representations from the Mahikeng director of public prosecutions as well. Rose further requested the Mahikeng director of public prosecutions to reconsider the senior public prosecutor’s decision not to prosecute the accused and to provide reasons therefor.
After no response, Rose instituted an urgent application in the North West high court in February 2025, requesting both the certificate and the representations.
The parties agreed that the certificate would be furnished to Rose and it was. The representations were, however, withheld.
In April 2025, Rose instituted a second urgent application, in which he persisted in obtaining the representations. The high court determined the merits of the application and found that Rose was not entitled to the said representations.
Rose then appealed to the SCA.
The SCA, in its judgment, noted that Rose did not join the accused as a party in the application before the high court.
The NPA contended that the non-joinder was fatal to the application as Esterhuizen had a direct and substantial interest in the outcome.
On appeal, the NPA persisted with the non-joinder point. Rose maintained that the accused’s participation in these proceedings was unnecessary, as the case turned on a question of law: whether a private prosecutor stands on the same footing as a public prosecutor.
In a unanimous judgment, acting judge of appeal Harshila Kooverjie said it was settled law that a party that has a direct and substantial interest in a matter should be joined.
She said Rose was at all relevant times aware of the high court’s view that Esterhuizen had a substantial interest in the matter, as well as the fact that the NPA had intended to persist with this issue on appeal.
“Despite these indications, the appellant maintained his stance throughout.”
However, Kooverjie said if Rose wished to persist with the matter, he was not barred from instituting a fresh application from the beginning.
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