South Africa Exhibits the Pitfalls of Private Prosecutions for Corruption

In March 2018, after several years of investigation stemming from allegations of corruption and mismanagement, South Africa’s National Prosecuting Authority (NPA) announced that it would not pursue charges against former South African Revenue Service Commissioner Tom Moyane. But this was decision short lived. A few weeks later, the NPA abruptly reversed course, explaining that it had reopened its investigation into Moyane and was reconsidering its decision not to prosecute. In the interim, the South African civil rights group Corruption Watch had publicly requested from the NPA a certificate of nolle prosequi—a document formally affirming the NPA’s decision not to prosecute. Obtaining such a certificate was a preliminary and necessary legal step for Corruption Watch to launch its own private prosecution of Moyane—which, under South African Law, Corruption Watch would have been able to do if the NPA formally declined to prosecute. Corruption Watch was calling NPA’s bluff, saying, in effect, “prosecute Moyane or else we will.”

Corruption Watch’s implicit threat stems from Section 7 of South Africa’s Criminal Procedure Act (CPA), which permits a citizen to criminally prosecute another person or entity if the NPA formally declines to prosecute. These prosecutions are similar to civil suits but with all the trial rights and potential penalties associated with a state prosecution. Moreover, at any time during a private prosecution the NPA may request permission from the supervising court to step back in and take over the case. South Africa is not unique in this regard: There are provisions for private prosecutions in other countries—especially Commonwealth countries—including the UK, Canada, Australia, Zimbabwe, and Kenya, as well as in China and Israel.

Many commentators in the international community have been optimistic about the potential of private prosecutions, particularly in combating corruption (see here, here, and on this blog here). And forces inside South Africa have been especially enthusiastic; in 2017, the South African civil society organization AfriForum launched its own dedicated private prosecutions unit focused on prosecuting corrupt government officials, with other organizations expressing similar interest. Much of this optimism stems from sheer frustration with the current prosecution regime in South Africa, a country that has long been plagued by selective prosecution, especially in the area of corruption.

South Africa could certainly use more pressure on the NPA to act; the country would also benefit from more resources, whatever the source, devoted to investigating and prosecuting corruption cases. And the fact that the threat of private prosecution appears to have spurred the NPA to action in the Moyane case is encouraging. Nevertheless, South Africa’s recent flirtation with private prosecutions actually illustrates why countries—including and perhaps especially South Africa—should be cautious about embracing organized, comprehensive private prosecution regimes to supplement traditional state prosecution.

As an initial matter, it’s worth noting that despite the excitement about Section 7, successful private prosecutions have been very rare in South Africa, with only one Section 7 prosecution (a murder trial) ever resulting in a conviction. The dearth of successful Section 7 prosecutions may be attributable to the substantial legal impediments to such actions. First, would-be prosecutors must deposit funds with the court to cover costs for both the judiciary and defense in the event that the prosecution is unsuccessful. This might prove less of a hindrance for a well-funded civil society organization than for an individual citizen, but other obstacles remain. One is legal standing: in contrast to some other Commonwealth countries, private prosecutions under Section 7 may only be pursued by those having a “substantial and peculiar interest” in a given case—typically victims or their next of kin. Organizations hoping to prosecute corruption charges would need to identify a specific victim of the alleged corruption—a challenge in of itself—and then demonstrate that the organization represents the victim. Apart from the standing issue, the investigations required for corruption cases are far more difficult for private prosecutors than for government prosecutors. Although under South African law a private prosecutor can subpoena witnesses to testify at trial and obtain evidence by requiring the accused to share all relevant documents, these tools are far weaker than the investigative power of the police or the legal leverage prosecutors have through plea bargaining or threatening to charge related offenses.

But even if we put the legal and practical difficulties to one side, it is not clear whether having a parallel private prosecution regime is ultimately a step in the right direction, for four reasons:

  • First, private prosecutions can distract from efforts to bolster the efficacy and legitimacy of state prosecution. Instead of focusing on efforts to improve the prosecuting operations by the state, a robust private prosecution regime can divert scarce resources, attention, and talent to the private sector. In one illustrative example, renowned NPA prosecutor Gerrie Nel—of Pistorius prosecution fame—left the NPA to join AfriForum’s new private prosecutions unit. Moreover, corruption investigator Paul O’Sullivan admitted when AfriForum’s unit was launched that this development amounted to a privatization of the criminal justice system, explaining that “[w]e will, in other words, run a parallel activity to the national prosecuting authority.” The NPA certainly has its work cut out for it in terms of restoring its beleaguered reputation and eliminating mismanagement in its ranks. But this task will likely only prove more difficult with the rise of competing prosecution bodies, especially if it leads public officials and activists to give up on reforming the NPA.
  • Second, private prosecutions can be expensive for the civil society groups that bring them, requiring resources not only to investigate and compensate prosecutors but also to provide funds for the courts and for a “reasonable” defense of the accused. Though high-profile private corruption prosecutions may make headlines, these efforts may also divert scarce civil society resources that could have been used to fight corruption in other ways. And given that the odds of a private prosecution actually succeeding are relatively low, it’s not clear that this is the best use of those resources.
  • Third, private prosecutions are open to abuse and politicization—especially for corruption charges. AfriForum, for example, appears to have focused its private prosecution efforts almost exclusively on rival political leaders, including Moyane, Julius Malema (leader of the far-left Economic Freedom Fighters party), and John Block (former chair of the African National Congress). Putting aside the merits of each of these prosecutions, the choice of targets has cast AfriForum’s private prosecutions unit in an overwhelmingly partisan light and likely will ensure that any future financial support to the group will come only from supporters who agree with its political slant. Predictably enough, AfriForum opponent Black First, Land First (BLF) announced the opening of its own private prosecutions unit. In a press release announcing the move, BLF called out AfriForum by name, arguing that “[t]heir targets are all black people or people who are or perceived to be of a certain political affiliation.” South Africa appears headed toward a system of further politicization of corruption prosecutions, all under the guise of supplementing the weak NPA, which will further delegitimize the system.
  • Fourth, parallel prosecution might distort decision-making within the NPA. In a properly functioning department, decisions on when and whom to prosecute or investigate would be made based on the evidence and the availability of resources. But if the NPA expects that someone whom they decline to prosecute would immediately be investigated and prosecuted by a partisan political organization, the NPA might err on the side of keeping an investigation open—or even pursuing a half-hearted prosecution. Such decisions could be made corruptly (to dishonestly protect a guilty party) or benevolently (to keep a seemingly innocent party out of the cross-hairs of a politicized private prosecution). This kind of calculus may have occurred in the Moyane case, with the NPA “reconsidering” its decision not to prosecute in order to avoid giving Corruption Watch the legal green light to pursue a private prosecution. Of course, there’s a more optimistic possibility: Perhaps the existence of private prosecutions would enable the NPA to push “difficult” or politically sensitive cases to groups outside the government, restricting the NPA’s activity to cases with clear guilt or less partisan ramifications, which might help the NPA rebuild its credibility in the eyes of the South African people. But it’s unclear how leadership in the NPA will respond to the pressure—or option—of private prosecutions, and there’s certainly no assurances that it will be with less partisan motivations than the current decisions to prosecute or not.

It remains to be seen how South Africa’s burgeoning culture of private prosecutions will develop, as well as the effect on the operation of the NPA. But there are certainly reasons to believe that outsourcing prosecution may only exacerbate the troubles plaguing South Africa’s justice system.

12 thoughts on “South Africa Exhibits the Pitfalls of Private Prosecutions for Corruption

  1. I had no idea this existed in South Africa, thanks! Now that you have extensively looked into this issue, do you lean towards thinking that allowing citizens to criminally prosecute another person or entity in cases of corruption is a good idea (beyond South Africa maybe)? I have discussed this with colleagues in the past, it seems like such a possibility in a legal system indeed holds the promise for a stronger stance against corruption and maybe even solves the problem of potentially corrupt anti-corruption agencies that refuse to open an investigation. At the same time, it challenges the standard criminal system a bit – corruption has been usually understood as a crime where the entire society is hurt, not a particular victim.

    I have always leaned more towards not having the option for private criminal prosecutions in cases of corruption, but rather introducing / encouraging the practice of private civil claims for damages suffered from acts of corruption. I guess I always thought we should hit the corrupt where it hurts the most – their assets. Criminal prosecutions bear different burden of proof and might be either harder to win or not have monetary consequences for the corrupt… But I may rethink my stance too!

    • Kees, thanks for this great post. I’m replying to Ruta’s comment here because, after your reading your post, I found myself thinking about the same question she asked you. In a vacuum, outside of the particular South African context, you do think the idea of supplementing public prosecutions with a private prosecution option is a good thing? I think my inclination is to say no, that we don’t want private parties wielding the coercive power of the criminal law and that it’s better to have (hopefully) dispassionate professionals do so… but certainly there are legal systems that have operated differently (and successfully). This is a wonky example but I believe in Ancient Rome there were no public prosecutions and criminal suits had to be brought by a private party. Regardless, after reading your post, I found myself wondering what your thoughts were on this issue more generally. Perhaps what you learned about private prosecution regimes in other countries informed your view?

      Additionally, and also in response to Ruta’s second comment above, I want to add that my inclination too is to say that civil suits should be the remedy available to private parties who have been victimized by corruption. However, as I think about it, it doesn’t seem like a private civil suit on its own would necessarily be effective. One person who’s hit up by a corrupt police officer for a 100 Rand bribe will have insufficient incentive to bring a civil suit, and no lawyer will have sufficient incentive to represent that person in her civil suit. We’d need some sort of class action mechanism to surmount the difficulty of providing remedies for small-scale corruption through private civil suits. I assume—though I don’t know—that South Africa has some sort of class action procedure, however, in the corruption context, it seems that there might be significant issues identifying who is a member of the class (it’s harder to determine everyone who was asked for a bribe by one venal official than everyone who, say, bought a Volkswagen). Having said this, I still think civil suits may be the most appropriate private remedy, but there are definitely issues to be worked out. Would be curious to hear if you (or Ruta!) have any additional thoughts.

      • Thanks, Ruta and Jason. I learned quite a bit as well in researching this issue, beyond what I already knew about the development of private prosecutions in South Africa. My instincts are the same as both of yours; beyond administrability, I’m wary of private prosecutions in general as a matter of first principles, believing that the coercive power of criminal enforcement (to borrow Jason’s phrase) is best left to the state. At the risk of simplifying things, my understanding is that private prosecutions used to be the norm in early England for crimes with personal victims (e.g. petty theft and violence), while crimes against the Crown were prosecuted by the government. We care about corruption as a crime in large part for its harm to institutions and society and not just the individual victims, as Ruta mentioned. This is why we see bribery as not just as a type of theft but as a wholly distinct offense. If the private/public prosecution lines of early England still existed today, I think we’d consider corruption a crime worthy of prosecution by the state.

        Historical and philosophical musings aside, it’s important to note that we are talking about supplementing public prosecutions, not replacing them. One issue underlying the concerns in my post is that the line is not necessarily clear, as private prosecutions may detract from the public prosecution regime. Even so, if a public prosecution regime was so inept, I think that private prosecutions could be considered, but I still lean against it for the reasons mentioned in the post and by both of you above. None of my research into other countries has made me any more optimistic about handing criminal prosecution tools to private citizens, especially for something as politically-charged as corruption accusations.

        I like what you both mentioned about civil suits, although I agree with Jason about the hurdles to finding and incentivizing victims of petty corruption. One possibility would be to allow civil society organizations to sue on behalf of their members or the public. Of course, this starts to sounds just like the private prosecutions regime I argued against, but I think the distinction between criminal prosecution (with imprisonment as a possibility) and civil suits for monetary damages is hugely important. [South Africa actually has a whole different set of quasi-private prosecutions under Section 8 of the CPA (rather than Section 7), whereby certain statutory bodies are allowed to prosecute on behalf of the public for certain offenses such as environmental crimes. I left it out of my post because corruption-related offenses are not included and those prosecutions are still under the ultimate supervision of the NPA, unlike the recent corruption investigations.] Another road is to bolster punitive damages in such civil suits, so that individual victims could be incentivized to pursue that 100 Rand bribery claim. I’m sure there are other considerations, but those two options came to mind.

  2. This is fascinating–thanks, Kees! One implication that I could see playing out is that the ability to bring private prosecutions could exacerbate the growing divide in South Africa between the “haves” and the “have nots.” Indeed, in April 2018, the World Bank named South Africa as the country with the greatest income inequality (https://www.npr.org/sections/goatsandsoda/2018/04/02/598864666/the-country-with-the-worlds-worst-inequality-is). As such, I could see a world in which the only actions brought by private citizens are by the very wealthy. This could have undesirable implications for notions of fairness and equal justice.

    On a separate point, I was curious if any statistics were available about the types of cases that have been brought by private prosecution in South Africa. You mentioned that the only conviction has been in a murder case–are most of the cases being brought murders? How many corruption cases have been brought? I guess what I’m wondering about is whether corruption has been relatively prioritized or deprioritized, compared to other crimes, among private parties bringing prosecution. Additionally, I had no idea that other countries such as Canada and the UK had private prosecution schemes–if you have any suggested articles on the prevalence of private prosecution in other countries, I’d love to read them. Thanks again for a quite interesting post.

    • Thanks, Ross! That’s a good point about the “haves” vs. “have-nots.” It remains to be seen to what extent civil society organizations will fund any “have-nots” who they think will have proper standing for a corruption prosecution. But there is danger in this as well, especially if that funding moves beyond legal costs.
      One thing I could have highlighted even more in my post is that private prosecutions are still extremely rare in South Africa. Almost all of the private prosecutions I’ve read about have involved violent crimes. The South African press often references the famous murder conviction via private prosecution from 2015, which I linked to in the article. There was also an (in)famous trial in 1989, when 13 police officers were acquitted in a private prosecution (google “Trojan Horse Massacre” for more); but even that case pre-dated the current South African prosecution. The ongoing corruption private prosecutions are all still in the very early stages. But the lack of success with even violent crimes in the past few decades makes the aggressive moves on private prosecutions for corruption all the more suspect.

      This best comparative article I’ve come across is “The Right to Institute a Private Prosecution: A Comparative Approach” by Jamil Ddamulira Mujuzi of South Africa. It’s available on HeinOnline with a university subscription.

  3. Thanks for the great post!

    I think your comment about politicization is interesting. If the NPA’s corruption prosecutions tend to be politicized already (I don’t know if this is true, but I imagine is possible based on how governments in other countries use corruption investigations) then I think one benefit of private prosecutions is that it gives politically disempowered groups the ability to “fight fire with fire.” The problem, as Ross mentioned above, is that this power is only going to accrue to politically disadvantaged groups who are also relatively rich. We might have some worries about who the exact winners are in that situation.

    I’d also be curious to learn more about the role of the courts in the system. A private prosecution for corruption against the party in power will probably only be successful if the judge is relatively independent. I wonder how often this is the case. (Again, I don’t know much about South Africa, so I don’t have a strong intuition either way.)

    • The independence of judges is certainly an important factor. My understanding is that the SA judiciary stands up pretty well when stacked against other actors in the system, such as the beleaguered NPA. A worry is that private prosecutions could threaten the independence of judges by virtue of a corruption prosecutions becoming totally politicized. One could imagine an extreme scenario where the political party in power only brings corruption charges against its political enemies, while its political allies are only charged via zealous private prosecutions. This could put even more pressure on the judiciary (and juries) to withstand getting dragged into the politics of any given case—especially when the motives to bring a prosecution at all are largely political.

  4. Great, well-written post Kees, which addresses a very important issue.

    You mentioned correctly that the option of private prosecution exists, among others, in Israeli law, where it is referred to as קובלנה, meaning “complaint”. Interestingly enough, the ability to initiate private complaints is extremely circumscribed, limited to a particular short list of offences. When it comes to corruption offences listed in the Israeli Penal Law (including bribery and other offences in the public service), the state has a monopoly over prosecutions, as the option of private complaints simply does not exist in regard to them. Furthermore, the consent of Israel’s Attorney General is needed for filing such private complaints against employees of the state for acts which they allegedly conducted while in performance of their duty. Also, it is worth noting that every now and then bills proposing to abolish private complaints are presented in Israel’s parliament. (See, for example: https://www.nevo.co.il/law_word/Law15/memshala-1017.pdf.)

    Besides that, I was wondering whether you know how often South Africa’s National Prosecuting Authority makes use of its power to ask the court to take over a case which was originally initiated by private prosecutors (generally and in the context of corruption), and how frequently courts approve these requests.

    And again, great post.

    • Thanks, Guy, for adding the very interesting color on the Israeli system – especially on the legislative moves to abolish the practice.
      As I mentioned briefly in my response to Ruta and Jason above, private prosecutions have been extremely rare. I didn’t see any cases where the NPA sought to intervene and take over a prosecution. More common perhaps is the episode I described at the outset of my post, where the prosecuting authority reacts preemptively to private prosecutors waiting in the wings. I think the dearth of interventions stems from the small number of private prosecutions over the years.

  5. Thanks for such an interesting post! You raised an important point about a private prosecution having to pay for the other side’s defense in cases where the prosecution is unsuccessful. To what extent would you expect this to limit abuse? Or might it just accentuate the problem you identify with private prosecutions only benefiting those with the resources to bring them?

    Separately, and following on the comments of others above, I’m intrigued by the discussion of politicization and abuse. Normally political motives are a problem with law enforcement because the party acting is the state. But when the actor isn’t the state, is it really that bad if one party prosecutes another with a political goal in mind? (In civil suits, partisan motives are so common as to seem unremarkable. It doesn’t strike me as a problem, for instance, if a political party sues a state over voting rights.) In fact, if we take some partisanship in state prosecutions as an—undesirable—given, then countervailing partisan motives in private prosecutions might be a valuable corrective. Why not enlist private political motives to correct law enforcement’s failures, just as we enlist them to help with so many other policy problems? A 1955 YLJ comment, “Private Prosecution: A Remedy for District Attorneys’ Unwarranted Inaction,” suggests policy reasons for allowing personal grievances into the enforcement of criminal law; I think there’s a reasonable argument that these policies extend to political grievances.

    The real problem lies, rather, where procedural protections insufficiently shield the innocent from abuses of subpoena and discovery power, which you mention are weaker than state investigatory powers. So I’d be curious to know more about how far South African law allows meritless private prosecutions to go.

    • Having to pay for the costs of an unsuccessful prosecution should serve as some form of deterrent to frivolous prosecutions, in the same way as having to pay attorney’s fees in meritless civil actions. You’re right to point out that this perhaps won’t deter those with deep pockets who see the money as well spent if the entire prosecution was primarily meant to harass an opponent. But I think it’s less a problem specific to the private prosecution regime and more applicable to legal systems generally working best for those with the greatest means.

      You raise a fair and powerful counterargument about balancing out partisanship—and one that I think is implicit in permitting any system of private prosecution. I suppose my worry about fighting fire with fire is engulfing the whole system in flames. As my exchange with Ruta and Jason above alluded to, I admittedly hold a presumptive suspicion against private actions for particularly criminal enforcement, which society by and large hands over to the government – although I’d be the first to admit that the line between civil and criminal enforcement gets very blurry in certain circumstances (such as prosecuting corporations). I see it all as a matter of balancing; private prosecutions may field some prosecutions that have been dropped by the state, wrongly, for political motivations, and pursuing those would be a public benefit. My argument was not meant to suggest there are no benefits, just that the countervailing costs—particularly in the corruption context—probably outweigh those benefits, as South Africa is starting to exhibit.

      In terms of blocking frivolous actions, it’s really a matter of discretion for judges (to dismiss them) and the NPA (in deciding to take over a private prosecution). I’m not sure how to judge the efficacy of those protections in the abstract. But there have been documented abuses of private prosecutions in South Africa, including an unlicensed casino owner launching a private prosecution to force someone to pay an illegal debt and a woman instituting a private prosecution with murder charges against a person whom she had in fact contracted to murder her ex-husband (she previously pleaded guilty to doing so). No system should be judged by its extremes, and those nefarious actions were ultimately halted. But there are individuals already abusing the system for regular crimes. I imagine it could and would be even worse for politicized corruption matters.

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