The Director of Public Prosecutions in KwaZulu-Natal is considering a request by former President Jacob Zuma’s legal team for a letter that it will not prosecute state advocate Billy Downer, SC.
The National Prosecuting Authority spokesperson Mthunzi Mhaga confirmed this on Monday.
Downer is the main prosecutor in Zuma’s corruption trial.
Zuma applied for him to be removed from the case but lost the matter. Zuma is charged with fraud and corruption in relation to the arms deal and his case returns to court on Tuesday.
The former president’s legal team is requesting a nolle prosequi certificate.
This certificate would give them the go-ahead to prosecute Downer privately. Without it, a private prosecution cannot proceed. Zuma claims that Downer is biased against him.
The process to obtain a nolle prosequi certificate — which refers to a certificate issued by the Director of Public Prosecutions (DPP) confirming the State’s decision not to institute a prosecution against a particular person — is an essential step that must be followed by anyone intending to institute a private prosecution.
Zuma’s defence is still intent on having Downer removed as prosecutor in Zuma’s high court corruption trial in the Pietermaritzburg high court, despite the dismissal in October 2021, of Zuma’s special plea in that regard.
Judge Piet Koen ruled that Zuma had failed to show that Downer wasn’t entitled to prosecute him on various grounds, and found Zuma’s allegations of bias against him were not based on facts.
KwaZulu-Natal advocate, Gideon Scheltema, SC, who was involved in South Africa’s second private prosecution for murder in 2010 (and the only successful one), confirmed that it is both costly and “highly complex” to launch a private prosecution.
Scheltema represented Pietermaritzburg couple, Yunus and Sara Asmall who in 2010 launched a private prosecution in Cape Town against Faizel Hendricks, for the murder of their daughter, Rochelle Naidoo, who was shot dead in her flat on June 28, 2005.
Hendricks was found guilty and in 2016 was jailed for 15 years. In January this year the Western Cape High court confirmed the conviction and sentence on appeal. Following the trial Scheltema wrote a book about the case.
He said on Monday that it is the first successful private prosecution in 100 years in South Africa.
“Private prosecutions have been on the law books since 1917,” he said.
The Hendricks case was the second private prosecution for murder in South Africa, and the first and only successful one. The first private prosecution was instituted two decades earlier by the families of three young people who were killed by security forces in 1985 in what became known as the “Trojan Horse” case in Cape Town.
But in that case all 13 accused were acquitted.
After the DPP in the Cape withdrew the murder charge against Hendricks and a formal inquest in 2008 ruled the cause of Naidoo’s death as inconclusive, Sara Asmall decided to take the unusual step to privately prosecute Hendricks.
Scheltema said another reason that private prosecutions are so scarce is that it is extremely difficult for any private prosecutor to guarantee the impartiality of the prosecution. In SA an accused is entitled to a prosecution that is independent and impartial.
He said another factor is the cost. It is expensive because the individual wanting to prosecute must provide security for the costs of the trial including security for any “reasonable costs” that may be incurred by the defence.
There is also strict criteria to be met before a private prosecution is allowed.
In order to embark on a private prosecution the Criminal Procedure Act requires the individual launching the prosecution to have a “substantial and peculiar interest” and another prerequisite is the certificate nolle prosequi to be issued by the DPP stating the DPP has declined to prosecute in the matter after examining all the available evidence.
If the certificate is issued by the DPP the private prosecutor has three months in which to launch a private prosecution.