Abstract

MUJUZI, Jamil Ddamulira. The history and nature of the right to institute a private prosecution in South Africa. Fundamina (Pretoria) [online]. 2019, vol.25, n.1, pp.131-169. ISSN 2411-7870.  https://doi.org/10.17159/2411-7870/2019/v25n1a6.

In 1828, legislation was enacted in South Africa to provide for the right to institute a private prosecution. Between 1828 and 1976, South African statutory law expressly provided that a victim of crime had a right to institute a private prosecution. However, this changed with the promulgation of the Criminal Procedure Act 51 of 1977. Section 7 of that Act provides for a list of people who may institute private prosecutions, but it does not expressly state that a victim of crime has such a right. Nevertheless, the courts have held that section 7 does provide for the right of a victim of crime to institute a private prosecution. The purposes of this article are manifold: to highlight the history of the right to institute a private prosecution in South Africa; to argue that although section 7 does not expressly provide for the right to institute a private prosecution, its drafting history could be relied on to contend for the existence of such right; to discuss the nature of the right to institute a private prosecution; to discuss the limitations on the right to institute a private prosecution; and to suggest ways in which this right may be strengthened.

Keywords : Bill of Rights; private prosecution; South Africa; Constitution of the Republic of South Africa; legal history.

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