By Christelle Terreblanche and Gaye Davis
Private prosecutions are rare in South African legal history and rarely succeed - perhaps one reason why the Democratic Alliance has decided to first seek a full judicial review of the decision to drop charges against Jacob Zuma.
Under the Criminal Procedure Act, any private person may launch a prosecution if the National Prosecuting Authority declines to prosecute or halts a prosecution and issues a certificate of nolle prosequi (we shall no longer prosecute).
The prosecution would then be initiated by summons.
But such a person would have to prove some substantial and peculiar interest in the issue - and would also have to prove they were a direct victim of the alleged crime.
The act is silent on how a private prosecution would obtain evidence. In the case of Zuma, this evidence is in the hands of the State.
A legal source said the only way to obtain the information would be through an application under the Promotion for Access to Information Act. By applying for a judicial review, the DA may be on firmer legal ground.
Constitutional law expert Pierre de Vos said that while the NPA had the discretion to decide whether to prosecute, it had to make that decision within the terms of the law.
"One could argue a review is necessary in terms of deciding whether the NPA met its constitutional obligations," De Vos said.
"Any decision (on whether to prosecute) would have to be based on the NPA's prosecutions policy spelt out in Section 179 of the constitution.
"The question would be, was that followed when the decision was taken - or was it made on non-legal, or political, grounds? As an organ of state, the NPA can act only in terms of the law."
Professor Marinus Wiechers, retired Unisa professor of constitutional law, said a class-action suit could be another option open to those who wanted to challenge the NPA's decision by way of private prosecution.
"The constitution does make provision for class-action suits, representing a broad public spectrum of interest, so it would not be totally far-fetched," he said.
Gauteng lawyer John Ngcebetsha said: "I think most people would rather want this to be aired in a public court. What we have is clearly a national constitutional crisis."