Vonnisbespreking: Privaat vervolgings as meganisme vir die ontwikkeling van ’n grondwetlike regstaat National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development 2017 1 SACR 284 (KH); 2017 4 BCLR 517 (KH)

Abstract

In recent case law it became evident that private prosecutions might be the remedy to unprosecuted criminals in South Africa. South Africa recently obtained its very own private prosecuting unit when the human rights organisation AfriForum hired Advocate Gerrie Nel to join forces and to prosecute alleged criminals. In this discussion the fundamentals of private prosecutions in South Africa will be explored. The historical development and commencement of private prosecutions in a South African context will be explained with specific reference to case law from both the pre- and post-apartheid perspectives. The focus will then be on the decision of the Constitutional Court under discussion (“NSPCA case”) which will be elaborated on, explained and evaluated. In this case the question whether the Criminal Procedure Act 51 of 1977 discriminates against juristic persons arose. This aspect of the judgment will also be explored further. Lastly, some crime statistics in South Africa will be examined as well as whether private prosecutors can somehow assist the National Prosecuting Authority in their quest to prosecute all crimes and keep South Africans safe. The conclusion is that the NSPCA case is correct. The court found that the NSPCA has the legal capacity to prosecute. However, the court did not express itself on the question whether section 7(1)(a) of the Criminal Procedure Act is in accordance with the Constitution as it clearly discriminates against juristic persons by omitting them from the wording of the section. It is submitted that provision should be made to allow juristic persons to prosecute so that the capacity to prosecute privately in South Africa can be extended. Of course, juristic persons will also have to comply with the requirements of section 7(1)(a) and they will be able to prosecute only after a nolle prosequi-certificate has been issued to them by the National Prosecuting Authority.