Private Prosecution Between Presidents

Nadine Meintjes – Candidate Attorney

In recent months, the words “private prosecution” have been making headlines, particularly involving Former President Jacob Zuma’s institution of private prosecutions.

In South Africa, the National Prosecuting Authority (“NPA”) is the only institution legally authorised to institute a criminal prosecution against a person. In the event that the NPA declines to prosecute, a person directly affected by the crime, may institute a private prosecution.

By way of example, Former President Zuma instituted a criminal complaint against Advocate Billy Downer. The NPA declined to prosecute Advocate Downer. As a result of the refusal by the NPA to Prosecute Advocate Downer, Former President Jacob Zuma, aggrieved by this decision, elected to invoke the provisions of the Criminal Procedure Act 51 of 1977 (“the Act”) and institute a private prosecution.

What is a private prosecution?

Private prosecution is a procedure in terms of Section 7 of the Act, whereby private individuals can prosecute an accused person in circumstances where the NPA declines to do so. The private individual and their legal representatives act as the prosecutor.

Who may institute private prosecution proceedings?

In terms of the Act, only people with a direct interest may institute private prosecution proceedings, namely:

  • 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;
  • The spouse, child or next-of-kin of a person who died as a result of that crime;
  • The legal guardian of a minor or mentally incapacitated person who was the victim of the crime.


What is nolle prosequi certificate?

nolle prosequi certificate is a formal certificate issued by the NPA confirming that it declines to prosecute. This certificate is necessary in order for private individuals to institute a private prosecution. When the NPA declines to prosecute, a nolle prosequi certificate must be requested from the NPA by the person who wishes to institute private prosecution proceedings.

The alleged private prosecution between Former President Zuma and President Ramaphosa

During December 2022, Former President Jacob Zuma instituted a private prosecution against President Ramaphosa.

President Ramaphosa approached the Johannesburg High Court on an urgent basis to interdict Former President Zuma from instituting private prosecution against President Ramaphosa.

President Ramaphosa’s legal representatives argued that the prosecution of the Former President Zuma was unlawful as Former President Zuma had not complied with Sections 7 and 9 of the Act and that Former President Zuma had not met the requirements to institute valid private prosecution.

The urgent application of President Ramaphosa was heard before Deputy Judge President Roland Sutherland and Judges Edwin Molahlehi and Marcus Senyatsi. The Court granted President Ramaphosa an interim interdict on 16 January 2023, interdicting the further progress of Former President Zuma’s private prosecution against President Ramaphosa, pending President Ramaphosa’s challenge to the private prosecution against him.

Join us for our Facebook Live discussion on Friday to gain insight into the outcome of the urgent application of President Ramaphosa, where our team will unpack the Judgment.

Facebook Live Event


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