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 private prosecution

If a person is certain that justice has not been done, there is always the option to follow the route of Private Prosecution

We had an interesting question sent to us yesterday by email.

 “In September 2017 my youngest son was assaulted in a bar and he laid a charge against the perpetrator. We have now been told by the investigating officer that the senior public prosecutor has declined to prosecute. My son wants to proceed and we would like to know how one goes about a private prosecution. Can you possibly advise as to whether or not this is a possibility and, if so, what is the process and how would he go about it?”

Today we will answer this question in part in this blog.

While a large percentage of the South African public may never have heard of a private prosecution, it is not a new concept; and has been in existence for almost a century, even though it is seldom used in South African law. 

In terms of Section 7 of the Criminal Procedure Act a private person may prosecute another person privately should the Director of Public Prosecutions (DPP) and/or the National Prosecution Authority (NPA) itself decide not to prosecute an accused person who has been formally charged with a criminal offence by a complainant. 

Should such a decision be taken, a nolle prosequi certificate will be issued by the DPP. This certificate is then valid for a period of three months, which means that any person considering a private prosecution has to take the necessary legal steps within three month period from the date of issue of the nolle prosequi certificate being issued. 

A person considering a 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 of interested parties to institute such a 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 a private prosecution against an accused under the same charge unless both of the parties have each suffered damages due to the same alleged offence by the alleged offender. 

Furthermore, a private prosecution 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 actual parties involved, for example, Van der Merwe v Smith.  

A person being privately prosecuted may however not be arrested for the relevant charge, but may only be summoned to appear before the court. Furthermore, he/she enjoys the same rights as an accused being prosecuted by the state. The DPP can also choose to intervene at any time and take over the prosecution, and then all the proceedings up to that time and that decision of the DPP in the private prosecution will cease and be stopped.


Before a person may be privately prosecuted, the private prosecutor has to pay in an amount at the Magistrates Court in which court’s jurisdiction the crime had been committed. This payment serves as security and is determined by the Minister of Justice. Currently, this amount is R2500, but it can be amended from time to time, with the particular court also by rights to determine a different amount. This amount can be forfeited should the private prosecutor fail to pursue the private prosecution against an accused to its end, or where he/she fails to show up and proceed with his/her private prosecution when it is placed on the court roll for a hearing of the trial.

If the private prosecutor fails to, without a valid reason, show up for the trial, the charge against the accused will be dismissed and he/she may not be privately prosecuted again for the same offence. The DPP may, however, prosecute the accused of that charge. If the accused pleads guilty on the day of the trial, the National Prosecuting Authority will take over and the entire process and will then proceed to prosecute the accused person thereafter. 

Private prosecution is a time consuming and expensive process, but if a person is certain that justice has not been done, there is always the option to follow this route. Should you consider it, it’s advisable to consult a criminal law specialist to determine the merits of a private prosecution before deciding to follow this route.

Please visit our website at www.legaladviceoffice.co.za or send us an email to This email address is being protected from spambots. You need JavaScript enabled to view it. with your legal questions.

About our author:

Hugh Pollard (Legal Consultant), has a BA LLB and 42 years’ experience in the legal field. 22 years as a practicing attorney and conveyancer; and 20 years as a Legal Consultant.

082-0932304 (Hugh’s Cell Number)

This email address is being protected from spambots. You need JavaScript enabled to view it.

www.legaladviceoffice.co.za

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