Private prosecution: is justice attainable even if the state fails us?

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Members of the public, and specifically victims or those close to them, are often disheartened by the National Prosecuting Authority (“NPA”) and its decisions not to prosecute persons who have allegedly committed a criminal offence. The Criminal Procedure Act (“the CPA”), however, contains two sections that can be relied on to bypass the NPA, by privately prosecuting persons who have allegedly committed criminal acts. These sections have recently been shoved in the spotlight thanks to the successful private prosecution of Faizel Hendricks, who was found guilty in January 2022 of murdering his partner Rochelle Naidoo in 2005. This is the first time that an accused has been convicted after being privately prosecuted.

The first section that details the terms in which a person can be privately prosecuted is found in section 7 of the CPA, where it states that an individual may institute proceedings if a certificate has been issued by the Director of Public Prosecutions (“DPP”) confirming that the NPA does not intend to prosecute the alleged criminal. This certificate is also known as a certificate nolle prosequi. Section 7(1) of the CPA states the following:

“(1) In any case in which a Director of Public Prosecutions declines to prosecute for an alleged offence:

(a) any private person who proves some substantial and peculiar interest in the issue of the trial arising out of some injury which he individually suffered in consequence of the commission of the said offence;

(b) a husband, if the said offence was committed in respect of his wife;

(c) 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

(d) the legal guardian or curator of a minor or lunatic, if the said offence was committed against his ward,

May… either in person or by a legal representative, institute and conduct a prosecution in respect of such offence in any court competent to try that offence.”

The second is section 8 of the CPA, which makes provision for a private prosecution to be instated under a statutory right. Section 8(1) reads as follows:

“(1) Anybody upon which or person upon whom the right to prosecute in respect of any offence is expressly conferred by law, may institute and conduct a prosecution in respect of such offence in any court competent to try that offence.”

Section 8(2) further states that private prosecution under this section may only be instituted after consultation with the Attorney General, and only if the Attorney General has withdrawn his/her right to prosecute in respect of any specified offence or specified category of offences. Private prosecutions under section 8 can be done by natural or juristic persons and do not require a certificate as referred to in section 7 of the CPA.

Hendricks was prosecuted in terms of section 7 of the CPA, when Rochelle Naidoo’s parents instituted action after the Cape Town District Court, during its inquest in 2008, found that it could not determine who held the firearm at the fatal moment when Rochelle Naidoo was shot (Hendricks averred that she committed suicide). The DPP declined to prosecute and Rochelle’s parents subsequently instituted proceedings in the Malmesbury Regional Court, where Hendricks was found guilty of murder in July 2014 and sentenced to 15 years imprisonment. Hendricks appealed the verdict but was unsuccessful in his appeal as the Western Cape High Court confirmed the conviction and sentence in January 2022.

It is clear from sections 7 and 8 of the CPA, as well as Mr Hendricks’ conviction, that justice can be obtained by victims and/or their families in circumstances where the NPA decides not to prosecute a person who has allegedly committed criminal acts. However, this justice is neither swift nor affordable when one considers the formalities that must be complied with and the accused’s right to appeal, which can cause significant delays for the persons instituting the private prosecution as well as significant legal costs (which include expert witnesses’ fees, such as pathologists and ballistic experts, which would normally be paid for by the State). The private prosecution of Faizel Hendricks confirms this as it took the Naidoo family 10 years to finalise this matter to attain justice. Yusuf Asmall, Rochelle’s father, confirmed the high financial and personal costs involved in this matter when he stated that “[i]t’s been a painful journey. It was a costly affair”.

In conclusion, the CPA does provide possible avenues for victims and their families to attain justice in circumstances where the NPA decides not to prosecute. However, these avenues are only available to those who have significant resources and time, and are thus only available to a select group of South Africans.

Reference List:

  • Criminal Procedure Act

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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