When the NPA chooses not to prosecute, how does a victim achieve justice?

JOBURG – 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.

 Garry Hertzberg, practising attorney at Dewey Hertzberg Levy and host of the Laws of Life with Garry Hertzberg on Cliffcentral.com

Not all reported cases make it to court. Sometimes crime victims are left with unanswered questions when they are told that their docket is back from court and no prosecution will take place.

Garry Hertzberg, practising attorney at Dewey Hertzberg Levy, takes us through how this happens and what crime victims or complainants can do if they find themselves in such a situation.

Hertzberg explains that in criminal matters, it is usually the state that prosecutes.

“This means that the state brings the case before a court and presents the evidence to try and get a conviction. ”

The National Prosecuting Authority is not mandated to bring every case before a court; it has the discretion to prosecute or not, and they base this decision mainly on the availability of evidence.

If it does happen that the NPA choose not to prosecute, how then does a victim achieve justice?

Hertzberg highlights that the South African Criminal Procedure Act (CPA) makes provision for private prosecutions. The NPA issues a declaration stating that it will not prosecute.

“Once this is done, the victim then has three months to institute proceedings. 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.”

He, however, pointed out that before the private prosecutor can go ahead he or she must make a deposit with the court as security that the charge will be prosecuted without delay.

According to Hertzberg, the state will pay the expenses of the private prosecutor if a conviction is secured in this way, but conversely, if the accused is acquitted, the court could order that his or her expense be paid by the private prosecutor.

The NPA can stop a private prosecution if it wants to prosecute the matter itself. Also if the accused in a private prosecution pleads guilty, the prosecution must be continued by the state prosecutor.

“This process can be very expensive, and the risks are great but it may be well worth it in the end to secure a well-deserved conviction,” Hertzberg concluded.