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National Environmental Management Act, 1998 (Act No. 107 of 1998)

Chapter 7 : Compliance, Enforcement and Protection

Part 3 : Judicial Matters

33. Private Prosecution


(1) Any person may—
(a) in the public interest; or
(b) in the interest of the protection of the environment, institute and conduct a prosecution in respect of any breach or threatened breach of any duty, other than a public duty resting on an organ of state, in any national or provincial legislation or municipal bylaw, or any regulation, licence, permission or authorisation issued in terms of such legislation, where that duty is concerned with the protection of the environment and the breach of that duty is an offence.


(2) The provisions of sections 9 to 17 of the Criminal Procedure Act, 1977 (Act 51 of 1977) applicable to a prosecution instituted and conducted under section 8 of that Act must apply to a prosecution instituted and conducted under subsection (1): Provided that if—
(a) the person prosecuting privately does so through a person entitled to practice as an advocate or an attorney in the Republic;
(b) the person prosecuting privately has given written notice to the appropriate public prosecutor that he or she intends to do so; and
(c) the public prosecutor has not, within 28 days of receipt of such notice, stated in writing that he or she intends to prosecute the alleged offence,
(i) the person prosecuting privately shall not be required to produce a certificate issued by the Attorney-General stating that he or she has refused to prosecute the accused; and
(ii) the person prosecuting privately shall not be required to provide security for such action.


(3) The court may order a person convicted upon a private prosecution brought under subsection (1) to pay the costs and expenses of the prosecution, including the costs of any appeal against such conviction or any sentence.


(4) The accused may be granted an order for costs against the person prosecuting privately, if the charge against the accused is dismissed or the accused is acquitted or a decision in favour of the accused is given on appeal and the court finds either:
(a) that the person instituting and conducting the private prosecution did not act out of a concern for the public interest or the protection of the environment; or
(b) that such prosecution was unfounded, trivial or vexatious.


(5) When a private prosecution is instituted in accordance with the provisions of this Act, the Attorney-General is barred from prosecuting except with the leave of the court concerned.