“I charge you by the law.” (William Shakespeare in The Merchant of Venice)

Victims of crime are entitled to see the perpetrators brought to justice. Feeling that the justice system has failed you can cause significant psychological harm and feelings of victimisation.

So, what happens if you believe that you are the victim of a crime, which you duly report to the police – only to be told that the NPA (National Prosecuting Authority) has declined to prosecute?

You could of course console yourself with the thought that “well, at least I tried” and walk away unfazed. But if you feel strongly enough about it, you are not without legal remedy – in appropriate cases you could be advised to go the private prosecution route.

A significant SCA (Supreme Court of Appeal) judgment last year provides an excellent example of just such a case.

Neighbours at war in an upmarket suburb

The scene here is Kloof Road in Cape Town’s Bantry Bay, renowned for its prime location on the Atlantic Seaboard, luxurious houses, and panoramic sea views.

The protagonists are next-door neighbours, whose acrimonious relationship and long history of disputes was founded in the one owner’s renovations, and the other’s strenuous objections to them. Who will eventually win that particular battle remains for another court to determine, but in the course of these disputes the one owner, a senior attorney, accessed his neighbour’s confidential credit records using a colleague’s login details.

This tactic backfired when the neighbour laid criminal charges against her adversary, saying that he had unlawfully and covertly accessed her personal and private information without the required authority or consent. She later added charges of fraud and defeating or obstructing the administration of justice, alleging that during the consequent investigation he had variously and falsely claimed firstly to have not accessed her data, then to have had her consent, then to have acted as her attorney, and lastly to have accessed her records inadvertently.

The media’s reporting of this high-profile spat created what the Court later described as a “public spectacle”, and the trial courts will have to wade through a web of hotly-contested and conflicting evidence in their search for the truth. 

But for now, our interest lies in the fact that the NPA declined to prosecute on any of these charges. Undeterred, the neighbour initiated a private prosecution, a move hotly contested by her opponent all the way up to the SCA. 

What must you prove to launch a private prosecution?

The SCA, in ultimately allowing the neighbour to proceed, set out our law on the matter. 

The starting point is always the NPA issuing a certificate nolle prosequi (a fancy Latin term meaning simply that the State declines to prosecute), for it is that certificate which opens the door to you to have a go at it yourself. As a side note here, legislation specific to the SPCA, SARS and a few other specialised entities allows them to prosecute specified matters without a nolle prosequi certificate – but the rest of us need one.

Once you’ve got your nolle prosequi certificate you must prove that:

• You have an interest in the issue of the trial.
• Your interest is substantial and peculiar to you. 
• Your interest arises from some injury individually suffered by you. 
• Your injury was suffered as a consequence of the commission of the alleged offence.

In deciding whether or not to grant your application, the court will also consider whether private prosecution would offend public policy. If you are shown to be acting maliciously, vindictively, vexatiously, or without foundation, your application will fail. 

Essentially, the Court performs a balancing act between your right to have your dispute “resolved by application of the law and decided in a fair public hearing before a court”, and the accused person’s “right not to be subjected to unfounded and vexatious private prosecution.”

In this case, the Court allowed the private prosecution to continue, commenting that the accused would now have the opportunity to vindicate his innocence at trial.

Think before you leap 

Before you charge blithely down this route, bear in mind that private prosecution carries, in the Court’s words, “enormous financial risk”. So be very confident of your prospects of success and bear in mind that:

• Even if you win it’s a costly exercise, because you are now paying your own legal team and a private prosecutor out of your own pocket rather than relying on state officials to do the job for you.
• If you lose and the trial court finds your prosecution to be unfounded and vexatious (a real risk after the NPA declined to proceed), you risk punitive costs and compensatory orders. If the accused can prove you acted without reasonable cause and with malice, you could also be liable for damages in a separate civil claim for malicious prosecution.

Considering a private prosecution? We’ll help you weigh up the pros and cons.

Disclaimer: The information provided herein should not be used or relied on as 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 us for specific and detailed advice.

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