If the National Prosecuting Authority (NPA) is, in the assessment of Acting Chief Justice Raymond Zondo, incapable of prosecuting the wealth of corruption cases confronting the country, the inevitable question is: who will?
It was asked for years by academics, civil society activists and at least some disillusioned state prosecutors before Zondo stated the obvious. But as the law stands, the instances in which anybody other than the state can institute a prosecution are so narrow as to render the question almost rhetorical.
Section 7 (1) of the Criminal Procedure Act (CPA) says that, where the deputy director of public prosecutions declines to prosecute a particular matter, a prosecution can be brought by someone who can prove “some substantial and peculiar interest in the issue of the trial arising out of some injury which he [sic] individually suffered” as a result of the alleged crime.
How rarely it happens successfully is illustrated by the fact that last month the Western Cape high court handed down the first murder conviction secured by private prosecution, more than a century after an earlier incarnation of the CPA first allowed ordinary citizens to institute such actions.
The courtroom victory for the Asmall family, whose daughter was murdered by her boyfriend in Observatory in 2005, came a week after Zondo delivered the first part of his report on state capture.
He wrote: “It is of course well known that for many years the NPA has failed to prosecute cases of corruption, and specifically cases of corruption in the procurement process. The extent of that failure can be measured by reference to the almost complete absence of cases brought under the legislation applicable to crimes of this sort.”
Zondo concluded that this called for a re-appraisal of the structure of the NPA, as well as the constitutional and legislative context in which it is located, to understand its weaknesses, and consider how these could be remedied “presumably by legal reform”, but that it was for the president to initiate.
Deputy Chief Justice Raymond Zondo. (Photo by Veli Nhlapo/Sowetan/Gallo Images via Getty Images)
‘A constitutional crisis’
Stefanie Fick, the director of the accountability division at the Organisation Undoing Tax Abuse (Outa), said the weakness he articulated was nothing short of a constitutional crisis, and that unless a legal amendment opened the door a little further there was no scope for institutions to prosecute in the public interest.
“I think you have a constitutional crisis if you have an NPA that is constitutionally mandated to do prosecutions, but is unable to do so. Because what do you do?”
“Private prosecutions were designed, many years ago, for unhappy complainants who have a bigger interest than the public interest. In other words you can’t privately prosecute in the public’s interest, you can only prosecute for your own interest.”
Gideon Scheltema, the advocate who led the murder prosecution on behalf of the Asmall family, stressed that private prosecutions were exceptional and onerous, with a legal requirement that the prosecutor put up, at the outset, security for the costs of the accused’s defence.
Those who embarked on this route must bear in mind firstly that the court knows that the state had already on the basis of the available evidence decided not to prosecute, and secondly that the accused’s rights to a fair trial must be respected to the same extent as in a public prosecution.
“Private prosecutions are not earmarked for cases of corruption, fraud, perjury and matters of that nature. It is normally very serious common law crimes like rape or murder and the victim’s interest needs to be established very clearly because you get a certificate from the deputy director of public prosecutions’ office.”
The CPA allows for a second type of private prosecution in section 8 by conferring a right to prosecute to statutory bodies, without the requirement of a nolle prosequi (or “will not prosecute”) certificate. One such body is the National Society for the Prevention of Cruelty against Animals, for whom former state prosecutor Gerrie Nel acted unsuccessfully in the case it brought against Defence Minister Thandi Modise.
But Fick stressed that nowhere does the law provide for a private prosecution on the basis that a clear case exists and it lacks the capacity to bring a clear case to court.
“The NPA is not allowed to say I can’t prosecute because I don’t have the resources. The government must make sure that the NPA has enough resources, enough money and people to fulfil their constitutional obligation. They can’t say we will give it to Outa because we are useless,” she said.
“But if we are faced with this scenario, where the NPA can’t [prosecute] because the government has not given them what they need to do their job, and we can’t private prosecute because as a civil activist organisation, and we feel it is necessary and the facts are out there, what do you do?
“It is a question and an answer that we are grappling with every day.”
NPA overstretched
Criminal law expert advocate James Grant said he did not foresee the NPA “being able to prosecute a tenth of the criminal activity that Zondo has been able to identify”, given that it is already not able to cope with the cases of ordinary crime, or corruption not related to state capture.
Private prosecution was a useful provision in law even if it was expensive and required perseverance to carry off, he said.
“It is a wonderful thing to have in one’s law. It is a sort of backstop to leaving the citizenry with nothing except to take the law into their own hands, to have this mechanism they can use and it does work.
“Unfortunately it is incredibly expensive because the individuals who want to pursue a private prosecution are going to have to employ lawyers and immediately you could be looking at a bill of R300 000 to R500 000 easily, just for one single prosecution.”
He cautioned that it was not a resort for those frustrated with the state’s inability to prosecute graft, and that there would be obvious risks in allowing private prosecutions to be brought in the name of public interest.
“I don’t think that is going to qualify as things stand, and I don’t see that being a standard that can be relied on going forward because of that concern that behind public interest may just be a political motive.
“You will have to have some constraints on it because all a nolle prosequi certificate says is that the NPA looked into the matter and they have decided that they are not going to prosecute. If that then left it for anybody to prosecute, I would imagine that our courts could become overrun with spurious claims and especially in instances where people are funded in some organisational capacity.
“I expect a great deal of mischief can be made.”
Delegating to other state entities
Jean Redpath of the Dullah Omar Institute said the more realistic option available in the law as it stood was to allow the NPA to delegate authority to prosecute to another state entity with competent people.
“Instead of the NPA prosecuting tax cases, they can delegate to the South African Revenue Service. This is not unprecedented at all. In 2018, the Special Investigating Unit actually asked the NPA to delegate to them the power to prosecute,” she said.
“The NPA is now having referrals from everywhere on a huge number of matters, and data before parliament show there are very few prosecutions in relation to SIU matters. It is a way of reducing the burden and ensuring that at least some people are being prosecuted.”
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