Whether Advocate Gerrie Nel, who resigned from the NPA this week to set up a prosecutions wing for lobby group AfriForum, will be able to operate as planned depends on AfriForum clearing several legal obstacles. The Criminal Procedure Act sets stringent requirements before a private prosecution can begin, notes a TimesLIVE analysis of what is required before a prosecution can proceed.

Although the law states a private person may institute and conduct a prosecution in respect of an offence if the Director of Public Prosecutions declines to prosecute‚ the law limits the people who can launch and conduct a private prosecution. These include any private person who can prove some peculiar and substantial interest in the issue of the trial arising out of some injury which the person individually suffered.

The cases that had been suggested AfriForum would prosecute include those involving acting Police Commissioner Khomotso Phahlane‚ Hawks head Berning Ntlemeza and SAA board chair Dudu Myeni. However‚ the main hurdle for the private prosecution of these cases will be for the individuals in these cases to show some injury which they had personally suffered as a result of that offence.

But, says the report, the requirements of a private prosecution do not end there.

The law also requires the private prosecutor not to issue any process unless he deposits with the Magistrate’s Court money as security that he will prosecute the charge against the accused to the conclusion without delay. If the accused is not happy with the amount deposited as security‚ he could require the prosecutor to deposit the additional amount.

The law also states that where the charge against the accused is dismissed or the accused is acquitted‚ the court may order the private prosecutor to pay to the accused the whole or part of any costs and expenses incurred in connection with the prosecution. And where the court is of the opinion that a private prosecution was unfounded and vexatious‚ it shall award to the accused at his request such costs and expenses incurred in connection with the prosecution.

Full TimesLIVE report