Page 90 - Q&A Book.indd

What to do to privately prosecute?

Adriaan van Rensburg
January 2017

“In 2016 my son was assaulted in ‘n bar, however the state
decided not to prosecute the particular person. Lately I’ve
heard a lot in the news about private prosecution. How does
it work?”

While a large percentage of the South African public only recently heard
of private prosecution, it is not a new concept, and has been in existence
for almost a century, even though it is seldom used.
In terms of Section 7 of the Criminal Procedure Act a private person
may prosecute another person privately should the Director of Public
Prosecutions/National Prosecution Authority decide not to prosecute.
Should such a decision be taken, a nolle prosequi certificate will be
issued. This certificate is then valid for three months, which means that a
person considering private prosecution has to take the necessary legal
steps within three months from date of issue.
A person considering private prosecution must also note that he/she
should have an essential and particular interest in the case, and that
he/she must have suffered personal damages as a result of the alleged
offence. Private prosecution also makes provision for spouses to institute
such prosecution on behalf of each other, as well as for parents to act
on behalf of their children and guardians on behalf of minors.
Two or more persons may however not institute private prosecution
under the same charge, unless both parties suffered damages due to
the same alleged offence.
Litigation Futhermore private prosectution must be instituted in the name of the

private prosecutor, and the process documents issued in the name
of, and at the expense of, the private prosecutor. As with civil cases, a
private prosecution is also reported in the name of the parties involved,
for example Van Rensburg v Francisco.

A person being priately prosecuted may however not be arrested for
the relevant charge, but may only be summonsed to appear before the
court. Furthermore he/she enjoys the same rights as an accused being
prosecuted by the state. The attorney general kan also intervene at any
time and take over the prosecution, and then all proceedings in the
private prosecution has to be stopped.

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