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.