The right to prosecute privately in South Africa: a precarious right indeed!

South African criminal procedure acknowledges that it is not every crime that can be prosecuted at the public instance. The decision to prosecute is ultimately made by the Attorney General who may refuse to prosecute if he thinks that the available evidence is not sufficient for a conviction, or that it is not in the public interest to commit the public resources to a prosecution. Such a decision might be contrary to the wishes of the victim of the crime or the interests of some other person who had a stake in the case. The law gives them a right to institute a prosecution at their own instance, in their own name, at their own expense, and, to some extent, at their own risk. The right to prosecute privately has been hailed as ‘a legal safety valve’ which is intended to suppress or accommodate the primitive urge to resort to self-help. The present article examines this right with a view to determining its enforceability. The author examines first why it may become necessary to utilize the right. He then considers who the prospective beneficiaries of this right are, highlights the problems which could arise in the enforcement of the right, and makes suggestions for improving the utility of private prosecution in South Africa. Notes, ref.

Title: The right to prosecute privately in South Africa: a precarious right indeed!
Author: Goredema, Charles
Year: 1993
Periodical: Lesotho Law Journal: A Journal of Law and Development
Volume: 9
Issue: 1
Pages: 25-43
Language: English
Geographic term: South Africa
Subject: criminal procedure
Abstract: South African criminal procedure acknowledges that it is not every crime that can be prosecuted at the public instance. The decision to prosecute is ultimately made by the Attorney General who may refuse to prosecute if he thinks that the available evidence is not sufficient for a conviction, or that it is not in the public interest to commit the public resources to a prosecution. Such a decision might be contrary to the wishes of the victim of the crime or the interests of some other person who had a stake in the case. The law gives them a right to institute a prosecution at their own instance, in their own name, at their own expense, and, to some extent, at their own risk. The right to prosecute privately has been hailed as ‘a legal safety valve’ which is intended to suppress or accommodate the primitive urge to resort to self-help. The present article examines this right with a view to determining its enforceability. The author examines first why it may become necessary to utilize the right. He then considers who the prospective beneficiaries of this right are, highlights the problems which could arise in the enforcement of the right, and makes suggestions for improving the utility of private prosecution in South Africa. Notes, ref.