{"id":11340,"date":"2025-06-25T12:56:33","date_gmt":"2025-06-25T10:56:33","guid":{"rendered":"https:\/\/dotnewsconnect.co.za\/law\/?p=11340"},"modified":"2025-06-25T15:52:42","modified_gmt":"2025-06-25T13:52:42","slug":"private-prosecution-neighbours-at-war","status":"publish","type":"post","link":"https:\/\/dotnewsconnect.co.za\/law\/2025\/private-prosecution-neighbours-at-war\/","title":{"rendered":"Private Prosecution: Neighbours at War"},"content":{"rendered":"\n
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\u201cI charge you by the law.\u201d (William Shakespeare in The Merchant of Venice)<\/p>\n<\/blockquote>\n\n\n\n

Victims of crime are entitled to see the perpetrators brought to justice. Feeling that the justice system has failed you can cause significant psychological harm and feelings of victimisation.<\/p>\n\n\n\n

So, what happens if you believe that you are the victim of a crime, which you duly report to the police \u2013 only to be told that the NPA (National Prosecuting Authority) has declined to prosecute?<\/p>\n\n\n\n

You could of course console yourself with the thought that \u201cwell, at least I tried\u201d and walk away unfazed. But if you feel strongly enough about it, you are not without legal remedy \u2013 in appropriate cases you could be advised to go the private prosecution route.<\/p>\n\n\n\n

A significant SCA (Supreme Court of Appeal) judgment last year provides an excellent example of just such a case.<\/p>\n\n\n\n

Neighbours at war in an upmarket suburb<\/h6>\n\n\n\n

The scene here is Kloof Road in Cape Town\u2019s Bantry Bay, renowned for its prime location on the Atlantic Seaboard, luxurious houses, and panoramic sea views.<\/p>\n\n\n\n

The protagonists are next-door neighbours, whose acrimonious relationship and long history of disputes was founded in the one owner\u2019s renovations, and the other\u2019s strenuous objections to them. Who will eventually win that particular battle remains for another court to determine, but in the course of these disputes the one owner, a senior attorney, accessed his neighbour\u2019s confidential credit records using a colleague\u2019s login details.<\/p>\n\n\n\n

This tactic backfired when the neighbour laid criminal charges against her adversary, saying that he had unlawfully and covertly accessed her personal and private information without the required authority or consent. She later added charges of fraud and defeating or obstructing the administration of justice, alleging that during the consequent investigation he had variously and falsely claimed firstly to have not accessed her data, then to have had her consent, then to have acted as her attorney, and lastly to have accessed her records inadvertently.<\/p>\n\n\n\n

The media\u2019s reporting of this high-profile spat created what the Court later described as a \u201cpublic spectacle\u201d, and the trial courts will have to wade through a web of hotly-contested and conflicting evidence in their search for the truth. <\/p>\n\n\n\n

But for now, our interest lies in the fact that the NPA declined to prosecute on any of these charges. Undeterred, the neighbour initiated a private prosecution, a move hotly contested by her opponent all the way up to the SCA. <\/p>\n\n\n\n

What must you prove to launch a private prosecution?<\/h6>\n\n\n\n

The SCA, in ultimately allowing the neighbour to proceed, set out our law on the matter. <\/p>\n\n\n\n

The starting point is always the NPA issuing a certificate nolle prosequi <\/em>(a fancy Latin term meaning simply that the State declines to prosecute), for it is that certificate which opens the door to you to have a go at it yourself. As a side note here, legislation specific to the SPCA, SARS and a few other specialised entities allows them to prosecute specified matters without a nolle prosequi <\/em>certificate \u2013 but the rest of us need one.<\/p>\n\n\n\n

Once you\u2019ve got your nolle prosequi<\/em> certificate you must prove that:<\/p>\n\n\n\n