PRIVATE PROSECUTION IN SOUTH AFRICA: SOME LESSONS FROM THE UNITED KINGDOM TO PREVENT ABUSE?

Abstract

The Criminal Procedure Act 51 of 1977 provides for private prosecution and the process to be followed in instituting such proceedings. While private prosecutions are rare in South Africa, the few prosecutions that were instituted reveal lax mechanisms that allow for abuse or potential abuse of the process. The key problem, it is submitted, is the ease with which such a prosecution may be instituted and the apparent lack of judicial oversight at the beginning of the process. To illustrate the significance of this lack of judicial oversight, the South African approach is compared with that of the United Kingdom where private prosecution may only be instituted by application in a magistrates’ court, thereby enabling a judicial officer to assess the case before it commences. Following a discussion on the implications of the lack of judicial oversight, it is recommended that mechanisms be introduced to ensure proper judicial oversight right at the beginning of the process as the current approach that requires of the accused persons to approach the court after the process has been instituted is a fertile ground for abuse of the process. It is expressly recommended that the clerk of the court should be required and equipped to conduct a preliminary assessment regarding the presence or otherwise of the jurisdictional requirements, especially those administrative in nature. In terms of the recommendation, the registrar is excluded because the recommendation proposes that the process should commence in the magistrates’ court. As an additional measure, it is recommended that a judicial officer should assess the prosecution for its soundness in law as well as for compliance with the substantive jurisdictional requirements. Put differently, it is suggested that private prosecution in South Africa should commence by application in the magistrates’ court in a manner similar to the process in the United Kingdom.