South Africa’s prosecution service - the National Prosecuting Authority - does not have the capacity to adequately deal with the case load swamping the country’s criminal courts. Between 2001 and 2002 the number of investigated cases referred to court increased by almost 50%. Between 1996 (the first year for which accurate figures are available) and 2002, the number of criminal cases referred to court increased by a massive 110%. Over the same period the number of prosecutions and convictions increased by, respectively, only 51% and 58%.

While the state can employ more prosecutors, it is expensive to train new recruits and pay them high enough salaries to keep experienced and skilled prosecutors in the state’s employ. Moreover, in a country with extraordinarily high levels of violent crime such as murder, rape and robbery, the focus of the prosecution service’s efforts will be devoted to prosecuting crimes of violence.

Crimes which require specialised prosecutorial skills for their effective prosecution, such as intricate commercial crimes, simply do not receive the attention they deserve in South Africa’s cash-strapped criminal justice system. The prosecution of offences which are not high on the agenda of senior criminal justice officials, such as environmental offences and offences against animals, are also unlikely to receive adequate attention by the state’s prosecutors.

An unexplored way of facilitating the prosecution of both intricate and low-priority cases (from the point of view of the criminal justice system), is to make it easier for crime victims and public-interest groups to institute private prosecutions. It is, for example, likely that, given the choice, many financial institutions would happily forego relying on overworked public prosecutors and prefer to pay competent private counsel to prosecute persons suspected of defrauding them of large sums of money. Similarly, many non-governmental organisations (NGOs) would be willing to pay for the prosecution of people suspected of, for example, polluting the environment or committing acts of cruelty against animals.

International Practice

A number of countries permit some form of private prosecution. In England, victims perform about 3% of criminal prosecutions. In Germany, private prosecutions are permitted in two circumstances. Firstly, a class of minor offences, including violations such as domestic trespass, can be prosecuted by victims. Secondly, a crime victim can demand that the public prosecutor pursue a case, and if the demand is refused, the victim can appeal to the court. If the court orders a prosecution, the victim can act as a ’supplementary prosecutor’ to ensure that the public prosecutor adequately presents the case. In Mexico, crime victims have the right to appoint a lawyer to assist the public prosecutor’s office with the criminal investigation and trial, and to adduce evidence.

In a report on private prosecutions, produced by the Law Reform Commission of Canada in the mid 1980s, a case is made for expanding the use of private prosecutions. While the report focuses on the Canadian criminal justice system, the arguments presented by the Commission are appropriate to South Africa as well. The Commission argues that a criminal justice system that makes full provision for the private prosecution of criminal offences has advantages over one that does not:

In any system of law, particularly one dealing with crimes, it is of fundamental importance to involve the citizen positively. The opportunity for a citizen to take his case before a court, especially where a public official has declined to take up the matter, is one way of ensuring such participation.

The Commission felt that certain kinds of offences are more likely to motivate individuals or public interest groups to launch a private prosecution. For example, offences relating to the protection of consumers, the environment or animals are likely to bring forth citizens who are committed to the enforcement of the values contained in this type of legislation. At the same time these types of offences - usually of the regulatory kind - are most likely to be given a lower priority by the state prosecution service.

In another comment applicable to South Africa, the Commission concludes that society benefits where formal, positive citizen interaction with the justice system results in some additional control over official discretion:

The form of retribution which is exacted by the citizen’s resort to legal processes is clearly preferable to other unregulated forms of citizen self-help. Further, the burgeoning case-loads which our public prosecutors routinely shoulder are, in some small measure at least, assisted by a system which provides an alternative avenue of redress for those individuals who feel that their cases are not being properly attended to within the public prosecution system.

South Africa

As in many other common law jurisdictions, South African legislation provides for private prosecutions. However, private prosecutions are possible under very limited circumstances only. Not surprisingly, they hardly ever occur.

In South Africa a private prosecution is permitted only if a Director of Public Prosecutions declines to prosecute a case at the instance of the state. Moreover, private prosecutions are possible only in a limited number of circumstances, specified by statute. In essence, only a private person who proves some ’substantial and peculiar interest in the issue of the trial arising out of some injury which he individually suffered’ can institute a private prosecution. Companies and legal persons cannot do so.

Companies are loath to wait long periods for the finalisation of fraud cases involving their employees. Numerous, drawn-out court appearances are bad publicity, and costly as staff members have to spend time at court to testify. The loss to such companies is especially harsh if the prosecution is unsuccessful. Firms which are prepared to spend large sums of money on private investigators to track down a fraud suspect among their employees, are likely to be willing to pay for an experienced and competent commercial lawyer to conduct the criminal prosecution of their cases as well - in particular if they were assured of a speedier finalisation of the trial, and a greater chance of obtaining a conviction. Commercial insurance policies could even be adapted to cover the additional costs of a private prosecutor.

Most prosecutors enter their profession directly from law school. The typical academic qualification of a prosecutor is a bachelor degree in the social sciences, followed by a law degree. Prosecutors have little or no training in subjects such as forensic accounting, computer science or the natural sciences. As a result, computer related fraud cases, intricate commercial crimes and environmental offences are often not prosecuted, or prosecuted unsuccessfully, because of the lack of technical knowledge on the part of prosecutors.

Such specialised prosecutions could be undertaken by lawyers sourced from private sector law firms. Bruce Benson, an economist from Florida State University, and author of To Serve and Protect: Privatization and Community in Criminal Justice, argues that there are advantages in specialisation, and the use of specialised personnel:

One reason that the private sector might be expected to do well what the government criminal justice system does badly is that consumers generally have narrowly focused concerns. Thus, when they pay a private firm to alleviate those concerns, they can hire someone with expertise. When resources specialize in their area of comparative advantage, economic efficiency is enhanced. More is produced with the same resources, or fewer resources are needed to produce the same level of output.

There are many law firms in South Africa which specialise in, for example, commercial crime or environmental issues. Using private prosecutors to deal with commercial or environmental offences could be of benefit to the economy and society as a whole. Diverting the prosecution of selected cases to private prosecutors will permit state prosecutors to concentrate their efforts on other priority crimes which strongly undermine public safety.

The law governing private prosecutions in South Africa needs to be amended to permit companies and legal persons, and public-interest groups such as the Society for the Prevention of Cruelty to Animals (SPCA) or the environmental organisation EarthLife Africa, to institute private prosecutions. Legislative changes should also be undertaken to make it easier for individual crime victims to institute private prosecutions.

For example, it may be prudent to explore the benefits of amending the law to permit private prosecutions which are not conditional upon a Director of Public Prosecution’s decision not to prosecute in a matter. In cases where there is an identifiable victim of a crime, the decision whether to institute a private prosecution should be left to the victim - the person who stand to lose the most from a bungled prosecution.

A widespread critique of private prosecutions is that such prosecutions are accessible only to those with the means to pay for them. Such a critique is misconstrued, however. Private prosecutions do not damage the rights of poorer victims of crime who have to rely on the public prosecution system. Private prosecutions reduce the workload of public prosecutors, allowing the latter to concentrate their limited resources on cases where, inter alia, poor people have been victimised by crime. Moreover, concerned citizens, victims’ rights groups (such as rape crisis centres), and NGOs can assist indigent crime victims obtain the services of a private prosecutor.

Private prosecutors for selected commercial crime prosecutionsParadoxically, while legislation severely restricts private prosecutions in South Africa, the state is using private lawyers to prosecute serious commercial crimes on behalf of the National Prosecuting Authority (NPA). For some time the Specialised Commercial Crime Unit of the NPA has been outsourcing the prosecution of selected cases falling within the jurisdiction of the Specialised Commercial Crime Court in Pretoria (which has been operating since 1999).The NPA has, on a number of occasions, made use of private legal counsel to prosecute particularly difficult and complicated commercial crimes tried at the Specialised Commercial Crime Court.The Specialised Commercial Crime Court is supported by Business Against Crime (BAC). Through BAC-facilitated negotiations between the NPA and the business sector, a trust fund has been set up so that money donated by the private sector - primarily banks and other financial institutions - is available to the NPA to pay private lawyers to conduct prosecutions on its behalf. In cases where the prosecution service lacks the skills or the confidence to prosecute a particularly intricate commercial crime, the NPA may use the money in the trust fund to hire senior counsel in private practice to assist the state in the prosecution of such cases.By all accounts the Specialised Commercial Crime Court has performed well. During 2001, the two magistrates of the court handed down judgments in 171 cases, with 88% resulting in a conviction. Each case was finalised in an average of two days of court time. Nationally the average regional court takes about four days to complete a trial, and this includes simpler-to-prosecute and adjudicate violent crimes. While it is not possible to determine the extent to which private sector lawyers have assisted the NPA to boost its performance in respect of prosecutions at the Specialised Commercial Crime Court, there is general agreement that using such specialists for the prosecution of selected cases has been a success.

Safeguards

Even in terms of the liberal private prosecutions regime proposed above, it should remain the state’s responsibility to ensure that all such prosecutions are regulated to safeguard the rights of suspected offenders, victims and the general public. Any system of private prosecutions must contain sufficient safeguards to guarantee the preservation of rights and the observance of the rule of law. Fortunately no significant changes to the law would be necessary to provide such safeguards. The Criminal Procedure Act contains a number of statutory protections to prevent persons misusing the presently limited right to institute a private prosecution:

• A private prosecutor must deposit with a court a fixed sum of money, and an amount the court may determine, as security for the costs which the accused person may incur in respect of his defence on a charge brought by a private prosecutor. Where a private prosecutor fails to prosecute a charge against an accused person without undue delay these sums of money are forfeited to the state.
• In a private prosecution the accused person cannot be arrested, and may be brought to court only by way of a summons.
• A court may set aside a private prosecution which is irregular or vexatious or constitutes an abuse of the process of court. If a court is of the opinion that a private prosecution is unfounded and vexatious, it must award to the accused person, at his request, such costs and expenses as the court deems fit.
• Where an accused person is acquitted a court may order the private prosecutor to pay to the accused person the whole or part of the latter’s costs and expenses incurred in connection with the prosecution.

Conclusion

Some may have ideological misgivings about widening the use of private prosecutions, as the prosecution of offenders has traditionally been a key responsibility of the modern state. The present South African reality, however, demands cost-effective alternatives to prosecuting cases solely by state-employed prosecutors. As has been pointed out above, a small number of commercial crime prosecutions involving millions of rands have already been successfully prosecuted by private counsel at the Specialised Commercial Crime Court in Pretoria.

Easing the use of private prosecutions generally, and permitting the use of private prosecutions by legal persons and public interest organisations has a lot of merit. By instituting private prosecutions, individual crime victims improve their chances of obtaining a speedy conviction against an accused person. Accused persons benefit as their trials are finalised more rapidly than would otherwise be the case. Crimes not involving identifiable victims such as environmental offences and offences against animals, would undergo vigorous and determined prosecution by experienced lawyers hired by relevant public interest NGOs. Finally, private prosecutions would alleviate some of the pressures on the state-run prosecution system, as state prosecutors are able to devote more time to other cases they have to deal with.

Martin Schoenteich
Martin Schoenteich was formerly a senior researcher at the Institute for Security Studies in Pretoria. He now works for the Open Society Foundation in New York. He writes in his personal capacity.