CPR3701
CRIMINAL PROCEDURE
Assignment 1
1st SEMESTER 2020
NB: Detailed answer below, with full reference and footnotes.
, CPR3701 ASSIGNMENT 01
QUESTION 1
a) Locus standi on a private prosecution
In terms of section 7 of the Criminal Procedure Act 51 of 1977 (CPA) if the Director of Public
Prosecutions (DPP) has declined to prosecute for an alleged offence, the following persons
may subject to certain other procedural requirements, either in person or through a legal
representative institute and conduct a prosecution in respect of such offence in any court
competent to try that offence:
i. any private person who proves some substantial and peculiar interest in the issue of
the trial arising out of some injury which he individually suffered in consequence of
the commission of the said offences (7(1)(a)); or
ii. a husband, if the said offence was committed in respect of his wife (7(1)(b)); or
iii. the wife or child or, if there is no wife or child, any of the next of kin of any deceased
person, if the death of such person is alleged to have been caused by the said
offence (7(1)(c)); or
iv. the legal guardian or curator of a minor or lunatic, if the said offence was committed
against his ward (7(1)(d)).
In Attorney-General v Van der Merwe and Bornman1 it was said that restrictions are
necessary to prevent private persons from arrogating to themselves the function of a public
prosecutor and prosecuting in respect of offences which do not affect them in any different
degree than any other member of the public; to curb, in other words, the activities of those
who would otherwise constitute themselves public busybodies.
b) Application to the facts
Yes, Belligerent Ben has locus standi. Subsections 7(1)(a) and (c) with regards to anyone
who has some substantial and peculiar interest in the issue of the trial as well as the next kin
of the deceased qualifies Ben to have locus standi to institute a private prosecution.
1
Attorney-General v Van der Merwe and Bornman 1946 OPD 197 [201].
CRIMINAL PROCEDURE
Assignment 1
1st SEMESTER 2020
NB: Detailed answer below, with full reference and footnotes.
, CPR3701 ASSIGNMENT 01
QUESTION 1
a) Locus standi on a private prosecution
In terms of section 7 of the Criminal Procedure Act 51 of 1977 (CPA) if the Director of Public
Prosecutions (DPP) has declined to prosecute for an alleged offence, the following persons
may subject to certain other procedural requirements, either in person or through a legal
representative institute and conduct a prosecution in respect of such offence in any court
competent to try that offence:
i. any private person who proves some substantial and peculiar interest in the issue of
the trial arising out of some injury which he individually suffered in consequence of
the commission of the said offences (7(1)(a)); or
ii. a husband, if the said offence was committed in respect of his wife (7(1)(b)); or
iii. the wife or child or, if there is no wife or child, any of the next of kin of any deceased
person, if the death of such person is alleged to have been caused by the said
offence (7(1)(c)); or
iv. the legal guardian or curator of a minor or lunatic, if the said offence was committed
against his ward (7(1)(d)).
In Attorney-General v Van der Merwe and Bornman1 it was said that restrictions are
necessary to prevent private persons from arrogating to themselves the function of a public
prosecutor and prosecuting in respect of offences which do not affect them in any different
degree than any other member of the public; to curb, in other words, the activities of those
who would otherwise constitute themselves public busybodies.
b) Application to the facts
Yes, Belligerent Ben has locus standi. Subsections 7(1)(a) and (c) with regards to anyone
who has some substantial and peculiar interest in the issue of the trial as well as the next kin
of the deceased qualifies Ben to have locus standi to institute a private prosecution.
1
Attorney-General v Van der Merwe and Bornman 1946 OPD 197 [201].
