Mind Map
Topic:
Revaluation for Classification of Persons Who Are Allowed to
Undertake Private Prosecution
Overview
Private Prosecution is a private prosecutorial process where private individuals
can prosecute an accused person in circumstances where the National
Prosecuting Authority declines to do so according to section 7 of the Criminal
Procedure Act Or people with a direct interest in a matter may institute private
prosecution proceedings, in accordance with section 8 of the Criminal
Procedure Act. In trying to attain justice, it is visible that limitations exist in who
may institute Private Prosecution, which begs the question if the main aim of
justice is prioritised considering South Africa’s unequal past.
Focused Background one
The classifications of people who are allowed to undertake private prosecution
include:
1. Any private person who proves a substantial and particular interest in
the issue of a criminal trial arising from an injury that person suffered
due to the offence in question
2. The spouse, child, or next-of-kin of a person who died because of that
crime
3. The legal guardian of a minor or mentally incapacitated person who was
the victim of the crime.
https://www.saflii.org/za/privateprosecution
Limitations:
1) A company/Juristic person is not allowed to institute Private
Prosecution as they are not a “person” under section 7 of the Criminal
Procedure Act.
2) Two or more people cannot privately prosecute the same charge if they
have been injured in the same offence, also, the law limits who can
launch and conduct a private prosecution. Someone can only pursue a
private prosecution if they can prove substantial interest in a matter.
https://www.repository.up.ac.za/bitstream/handle/2263/91368/Spies
_Private_2022
Section 7 of the Criminal Procedure Act allows a private individual to
prosecute a case if the Director of Public Prosecutions (DPP) declines to
prosecute. Section 8 of the Criminal Procedure Act provides for private
prosecutions in terms of a specific statutory provision for natural person
https://www.saflii.org/za/cases/privateprosecution
1) Case law: National Society for the Prevention of Cruelty to Animals v
Minister of Justice and Constitutional Development.
This case constitutionally challenged section 7(1) of the Criminal
Procedure Act, as it is unconstitutional as only allowing private persons to
institute private prosecutions.
2) Barclays Zimbabwe Nominees (Pvt) Ltd v Black
The respondent in this case raised the point that the company may not
privately prosecute him because under section 7 of the Criminal Procedure
Act, the company is not a “person”.
Focused Background Two
According to section 39 of the Constitution, courts must consider
international law and may consider foreign law when interpreting the Bill of
Rights.
https://www.cps.gov.uk/legal-guidance/private-prosecutions
Private prosecutions are permitted for companies in international courts.
The Supreme Court of the United Kingdom recently had a case R v Crown
Prosecution Service where commercial companies regularly undertake
private prosecutions as it has been an effective tool.
https://criminal-practice-law-sqe.co.uk/private-prosecutions-in-the-uk-a-
comprehensive-guide/
The case of R (Virgin Media Ltd) v Zinga [2014], was held in the United
Kingdom, where it was stated Private prosecution is a powerful tool,
providing a way to seek justice independently and hold wrongdoers
accountable.
Suggestion: Seeing that International countries do not limit who may
institute private proceedings, this has had a great impact as the main aim of
justice has been achieved. If South Africa can allow companies to privately
prosecute, many companies can attain justice, and subsequently feel safer
and more seen so that they may not be taken advantage of as people
currently can get away with using the law of section 7(1) of the Criminal
Procedure Act.
GAP: The objective of private prosecution is to assist South African’s to
ensure justice, in the event the National Prosecuting Authority is unable to
assist. To ensure justice for victims and legal recourse. However, how is it
that some parties are excluded from this pleasure? Why does justice have
limitations to it? Why is it that two people cannot attain their own justice
even if they were injured in the same offence?
Problem Statement: Private Prosecution in South Africa does not permit
Juristic persons to institute, which places entities at a major legal
disadvantage, additionally, the law places limitations on who may institute
and conduct a private prosecution. The issue of limitation and the
imbalance of the law is in question.
Criteria: Mark
awarded
Topic: Chosen topic has been included
Broad overview: General context is clear /5
First focused sub-section outlined with sources /5
Second focused sub-section outlined with sources /5
Logical gap has been identified /5
Brief problem statement logically flows from above /5
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