Would putting private prosecutions out on tender make NPA less useless?

Adding to the growing list of disappointing state organs, it appears that the National Prosecuting Authority is losing much of the goodwill it has left after dilly-dallying on high profile prosecutions for what feels like forever.

So maybe it’s time to turn to rich people for help.

The weird thing about the rich community of South Africa, is that over and above paying taxes, rates, and a bunch of other things, they don’t appear to mind springing for private parallel services.

Public hospitals are for the plebs, the police have nothing on their private security, and why send your kids to a public school when even government officials with means won’t?

Also Read: Income and consumption inequality makes SA most unequal in the world

It just seems that if you want results, you need to ignore the offerings of the state despite paying for it, and go for your own private solutions.

Seemingly, Afriforum has for years been toying with this idea of institutionalizing a practice of private prosecutions.

Now they’re focusing once again on Nomgcobo Jiba after 7 years of back and forth, following a successful review application of the NPA’s decision not to prosecute putting their ambitions of private prosecution on hold.

Here’s the thing though. If the NPA really starts to suck and private prosecutions increase, what happens when a private prosecution is successful?

Put differently, what happens when private organisations start doing the work of the NPA in the vacuum of their inability, should that ever happen?

Criminal law is a strange aspect of our law. In civil cases, you have the financial incentive of winning and possibly winning with costs.

As we learned with Oscar, Panayiotou and a bunch of other matters, you can have the most expensive legal team and still get the same result as a legal team that cost you a couple of cheeseburgers. Yeah maybe the element of life behind bars vs freedom is a bigger consideration than money for the accused, but let’s look at the prosecution.

What does a successful prosecution bring? A fine that goes to the state, or some time for the convicted person?

Maybe that brings satisfaction to the prosecution, private or public, but it certainly doesn’t bring any financial incentive, nor does it fill the expensive hole caused by the prosecution to get the justice.

So, is it in our interest to allow for privatising of prosecutions funded by people with particular interests? I mean, it will probably get a lot of effective prosecutions done on the high end, leaving the NPA to deal with the little matters, but then what will the public perception of the judicial system be to the layman?

Do we put tenders out to prosecute? Maybe, but then I wouldn’t be surprised if those tenders go right back to members of the NPA anyway. I mean this is the South African way.

So what do we do? How about, ceding some of the NPA budget to successful private prosecutions? I mean, if they’re getting paid to do a job they’re not doing, that money should go to whoever is doing the work, right? Surely.

More than that, it will probably light a fire under the NPA to do the work the public expects of them, and is paid for by the public purse.

Perhaps if we offer an avenue for private prosecutions to have a financial incentive , we’ll have a far more effective pipeline of prosecutions. Perhaps we won’t.

What is certain is that the current situation is both untenable, unsustainable and frankly, if it continues this way, potentially unequal, looking at the various interests and their financial backing.

Sure, we’ve had the ability to privately prosecute for decades but it’s never been this close to becoming an institutionalised consideration. Now that we’re on the cusp, we need an honest conversation about how we want them to operate and how dockets go from the cops to the private prosecutors.

Maybe it will uncover some systematic problems. Maybe it will cause more prosecutions.

Maybe it will make the NPA move more efficiently because we wouldn’t be here if the public believed that they did.