What Can You Do If the NPA Declines to Prosecute?

Key takeaways

• You may still have legal options when the National Prosecuting Authority declines to prosecute, but the correct option depends on the result you want.
• If you want the prosecution decision reconsidered, the first route is usually a written representation through the NPA's internal review hierarchy.
• If you want to conduct a criminal case privately, section 7 of the Criminal Procedure Act sets a narrow, regulated route that ordinarily requires a certificate of nolle prosequi, standing, court process and security.
• If you say the prosecutorial decision was unlawful or irrational, a court review may be possible under the principle of legality. Courts exercise that power sparingly and do not simply substitute their own view of the evidence.

1. Confirm what the NPA decided

Do not treat every message saying a case will not proceed as a final decision by a Director of Public Prosecutions.

The docket may have been returned for more investigation, the matter may not have been enrolled at that stage, a lower-court prosecutor may have declined to prosecute on the material then available, or a DPP may have made a final decision after review. Those positions have different next steps.

Ask for a written communication that identifies:

• the police station and CAS number;
• the suspect and alleged offence considered;
• the prosecutor or office that made the decision;
• whether the decision is final or further investigation is outstanding;
• whether a higher NPA authority has already reviewed it; and
• the reasons that can lawfully be provided.

The Service Charter for Victims of Crime states that a victim may request reasons for a decision whether to prosecute. That does not mean every confidential document, witness statement or representation must be disclosed. Keep the decision letter and every later response in its original form.

If the case is still under investigation, send genuinely new evidence to the investigating officer with a dated covering note. Do not repeatedly resubmit the same material or contact the suspect to manufacture admissions.

2. Match the route to the outcome

These procedures are not interchangeable.

The criminal-law overview explains the public prosecution setting. A civil damages action follows a different purpose and procedure; the damages glossary introduces that distinction.

3. Ask the NPA to review the decision internally

Section 22(2)(c) of the National Prosecuting Authority Act authorises the National Director of Public Prosecutions to review a decision to prosecute or not to prosecute after consulting the relevant Director and considering representations from the complainant, accused and any other relevant person or party.

The NPA's published representations procedure gives a sequence for lower-court decisions:

1. direct the first review request to the Senior Public Prosecutor responsible for the court;
2. if still dissatisfied, escalate it to the Chief Prosecutor or DPP; and
3. approach the NDPP only after the DPP has reviewed the lower decision.

Check the current NPA page and contact channel before sending anything. Contact details and administrative procedures can change.

Build a focused representation

A review request should make it possible to identify the matter and the alleged error without speculation. Include:

• your name and capacity in relation to the complaint;
• the CAS number, court or case number if one exists, and the relevant NPA office;
• the suspect and offence considered in the decision;
• the decision letter and earlier review correspondence;
• a short chronology tied to supporting records;
• the particular evidence you say was overlooked, misunderstood or assessed against the wrong test;
• any new admissible evidence and an explanation of why it was not previously available; and
• the outcome requested.

The NPA Prosecution Policy says the evidential question is whether sufficient, admissible evidence provides a reasonable prospect of a successful prosecution. It also recognises that review is continuing and that fresh facts may affect an earlier decision. A useful representation therefore addresses evidence, admissibility and the policy test rather than relying only on the seriousness of the allegation.

Separate disagreement from misconduct. A representation challenges the prosecution decision. A complaint about corruption, dishonesty, improper disclosure or another ethical issue follows the NPA's complaints process and should contain concrete evidence.

4. Understand a certificate of nolle prosequi

Nolle prosequi is commonly used for a certificate recording that the State declines to prosecute the specified alleged offence. It is not an award of damages, a finding that the complaint is true, or permission to prosecute anyone on any charge.

Section 7(2) of the Criminal Procedure Act provides that a private prosecutor under that section cannot obtain court process summoning an accused unless the required certificate is produced. The certificate must relate to the statements or affidavits considered and the State's decision not to prosecute.

The 2023 High Court decision in Porrit v NPA explains that a certificate can be requested only once the relevant prosecutorial decision not to prosecute has been made. It also emphasises that the certificate process depends on the underlying statements or affidavits being considered. A missing docket, incomplete investigation or mismatch between the identified accused, offence and certificate can create a serious obstacle.

Who may have standing under section 7?

Section 7(1)(a) refers to a private person who proves a substantial and peculiar interest in the outcome arising from an injury personally suffered because of the alleged offence. The section also lists particular family and representative categories. Separate legislation may confer a statutory right of private prosecution under section 8.

Being concerned about an offence, representing the public interest or having made a report is not by itself the same as proving section 7 standing. The Constitutional Court's NSPCA judgment illustrates the distinction between the section 7 route and a prosecution right expressly conferred by another statute.

Standing and the scope of a certificate can be contested by the accused. Obtain advice before requesting or relying on a certificate, particularly where the complainant is a company, association, family member, representative, indirect victim or person not named in the original complaint.

The certificate has a short operational life

Section 7(2)(c) provides that the certificate lapses unless the relevant court process is issued within three months after the certificate date. Do not confuse that three-month period with a deadline for requesting the certificate, a civil prescription period or the duration of the later trial.

If a certificate has already been issued, record the exact issue date and obtain immediate advice about standing, charges, jurisdiction, drafting, security and service. A defective or overbroad summons can be set aside even though a certificate exists.

5. Private prosecution is a criminal case, not a private lawsuit

A section 7 private prosecution is conducted in the private prosecutor's name, but it remains criminal proceedings. The Criminal Procedure Act says it proceeds substantially as a State prosecution, with the accused brought before court by summons in a lower court or indictment in a superior court.

The private prosecutor assumes duties and financial risks that are absent from an ordinary complaint to the police.

Security and expenses

Section 9 requires security to be deposited before process commencing a section 7 prosecution is issued. One amount is prescribed as security that the charge will be prosecuted to conclusion without undue delay, and the court determines security for defence costs. The court may require additional security.

Sections 14 to 16 address process fees and costs. The private prosecutor ordinarily pays their own prosecution costs. If the accused is acquitted or the charge is dismissed, the court may order the private prosecutor to pay the accused's costs. If the prosecution was unfounded and vexatious, the Act directs the court to award appropriate costs at the accused's request.

Do not rely on a historical online estimate. Confirm the current prescribed security, court requirements, service fees and likely professional costs before deciding that the route is financially possible.

Evidence and fairness

The prosecution must prove the criminal charge under the ordinary criminal standard and comply with fair-trial rights. The certificate does not supply admissible evidence. Witness availability, authentication, expert proof, disclosure, privilege, hearsay and chain-of-custody issues still matter.

The 2026 Supreme Court of Appeal decision in Rose v NPA also demonstrates that a private prosecutor should not assume entitlement to confidential representations made to the public prosecutor. Rights of affected persons and correct joinder can determine whether disclosure relief is even considered.

Scope and purpose

The accused and the charge must fall within the lawful certificate and the private prosecutor's standing. In Maughan v Zuma; Downer v Zuma, summonses were set aside where the certificate and standing requirements were not met and the proceedings were found to be an abuse of process.

Private prosecution cannot lawfully be used to threaten, embarrass or pressure a person into paying a civil demand. Keep settlement discussions, evidence preservation and criminal procedure within lawful professional channels.

6. Judicial review tests the decision-making power

Prosecutorial decisions are not immune from court supervision, but review is exceptional. In NDPP v Freedom Under Law, the Supreme Court of Appeal held that decisions to prosecute or not to prosecute are reviewable under the rule of law, while stressing prosecutorial independence and the breadth of the discretion involved. The review is limited to legality and rationality rather than the wider merits appeal a disappointed complainant may expect.

A review application may examine questions such as whether:

• the authorised decision-maker exercised the power;
• the correct legal and policy framework was applied;
• relevant material was considered and irrelevant purposes excluded;
• the outcome was rationally connected to the information and purpose of the power;
• bias, bad faith or an ulterior purpose can be proved; and
• required procedures were followed.

It is not enough to show that another prosecutor might have reached a different conclusion. A review court does not conduct the criminal trial in advance. If a decision is set aside, the usual practical consequence may be reconsideration by the competent prosecuting authority, not an order that the suspect is guilty.

Delay can itself defeat public-law relief. The record, parties, remedy and interaction with an internal representation are technical questions. A person considering judicial review should obtain public-law advice promptly and avoid waiting for a civil or criminal deadline to become urgent.

The civil-review glossary introduces the court-supervision concept, while a lawyer must identify the actual review ground and suitable remedy from the record.

7. A civil claim against the alleged wrongdoer may be separate

The absence of a State prosecution does not automatically bar a civil case. A civil claim asks whether a defendant is legally liable for specified relief, usually compensation. It does not ask the civil court to impose a criminal sentence.

The claimant must identify a recognised cause of action and prove every element. For a delictual damages claim, courts identify conduct, wrongfulness, fault, causation and harm as distinct requirements. A prosecutor's refusal supplies none of those elements automatically.

Consider:

• who committed the conduct and who the legally correct defendant is;
• what duty, right or legal norm was breached;
• whether intention, negligence or another fault basis is required;
• what loss or injury can be proved;
• whether the conduct factually and legally caused that loss;
• whether another statutory scheme governs the remedy; and
• what evidence can be used lawfully in civil proceedings.

The civil court applies civil procedure and the applicable civil standard of proof. A criminal investigation may contain useful material, but access and admissibility require separate analysis. Preserve your own records instead of assuming the police docket will become your civil case file.

The civil-court process guide provides broader procedural context. It does not decide whether the facts establish a claim.

Do not wait for the criminal route to finish

Civil prescription can run while a complaint, representation, certificate request or prosecution is pending. Under sections 11 and 12 of the Prescription Act, many ordinary debts have a three-year period beginning when the debt is due, subject to knowledge rules, statutory exceptions and postponement provisions. Other causes of action can have different periods or conditions.

Use the prescription glossary as an issue prompt, then obtain a calculation for the actual claim. A letter to the NPA, a police report or a request for a certificate does not necessarily interrupt civil prescription.

8. Suing the NPA or a prosecutor is a different and difficult claim

A complainant does not acquire a damages claim against the State merely because the NPA declined to prosecute or because a reviewing authority later disagrees.

Section 42 of the National Prosecuting Authority Act provides that no person is liable for anything done in good faith under that Act. A claimant still has to identify a viable cause of action and establish all its elements, including why liability should be imposed for the particular exercise of public power.

Claims against an organ of state may also trigger the Institution of Legal Proceedings against Certain Organs of State Act. Section 3 ordinarily requires written notice within six months after the debt became due, subject to its knowledge rules and a possible condonation application. That notice regime operates alongside prescription and correct service requirements.

Do not send an informal demand and assume the statutory requirements have been met. If State liability is being considered, obtain advice immediately on the defendant, cause of action, good-faith protection, notice recipient, service method, due date, prescription and remedy.

9. Preserve the right evidence for each route

Create one indexed chronology and separate the records by function.

Decision and review records

• original complaint and sworn statements;
• CAS number and investigating officer details;
• correspondence transmitting the docket or further evidence;
• written prosecution decision and available reasons;
• each representation, receipt and review outcome; and
• a log of calls, meetings and promised follow-ups.

Evidence about the alleged offence

• original messages, emails, audio, video and photographs;
• source devices and export information where authenticity may matter;
• contracts, statements, invoices, medical records or expert material;
• witness names, contact information and short relevance notes; and
• an explanation of when, where and from whom each item was obtained.

Civil loss records

• proof of payments, repair costs, treatment expenses or lost income;
• valuations and calculations linked to source documents;
• steps taken to limit further loss; and
• correspondence relevant to acknowledgment, settlement or prescription.

Keep originals unchanged and work from copies. Record transfers of digital evidence. Do not edit screenshots, annotate source files, coach witnesses or publish allegations online. Public accusations can prejudice proceedings and create separate legal exposure.

10. A practical sequence

1. Obtain the written decision and clarify whether it is final, provisional or subject to further investigation.
2. Record the decision-maker, suspect, alleged offence, CAS number, reasons and date.
3. Decide whether the immediate goal is reconsideration, prosecution, public-law review or compensation.
4. Calculate the three-month certificate period if a certificate already exists, every civil prescription date, and any organ-of-state notice date.
5. Preserve original evidence and build a concise claim-to-document chronology.
6. Use the NPA's current representation hierarchy where reconsideration is sought.
7. Before requesting or using a certificate, assess standing, the exact charge, evidence, jurisdiction, security and costs.
8. Obtain specialist review advice before launching court process or contacting the proposed accused about proceedings.
9. Keep civil, criminal and complaints correspondence distinct so that each asks the correct decision-maker for relief they can lawfully grant.

The criminal-lawyer route helps identify practitioners for prosecution and criminal-procedure questions. Use the lawyer directory to compare assistance, and ask specifically about private prosecution, prosecutorial review, public-law review or civil damages rather than requesting undifferentiated “criminal help”.

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