Quick answer
An NPA decision not to prosecute does not give a proposed private prosecutor automatic access to representations made by the accused. The Criminal Procedure Act creates a private-prosecution route in defined circumstances, including a certificate commonly called a nolle prosequi certificate, but access to the prosecution file is a separate question governed by PAIA, confidentiality, privilege, prosecutorial functions and the rights of affected people.
How to use this guide
The 2025 High Court judgment in Rose v National Prosecuting Authority rejected access to the accused's representations on its record. The Supreme Court of Appeal dismissed the later appeal in 2026 because the accused had not been joined; it did not decide the substantive access entitlement. Any current advice must preserve both propositions and should not present the unresolved issue as a final appellate rule.
Confirm the statutory private-prosecution route first
Section 7 of the Criminal Procedure Act permits a private prosecution by a private person only within its requirements. The person ordinarily needs a substantial and peculiar interest arising from injury individually suffered, and the Director of Public Prosecutions must have declined to prosecute and issued the statutory certificate. Other legislation can create different private-prosecution authority, so identify the exact route rather than using section 7 as a universal label.
Obtain the written decision, certificate, date of issue, complainant statements, docket references and communications with the prosecutor. Verify who intends to prosecute and in what capacity. A company, family member, estate or representative may raise standing and authority issues that cannot be solved by transferring the certificate informally.
Timing is critical. Section 7 contains a three-month consequence tied to institution of the private prosecution after the certificate, subject to the exact statutory text and facts. Section 9 addresses security. Have counsel calculate the steps from the actual certificate and proposed process; further correspondence or an access request should not be assumed to suspend that period.
Separate the certificate from the information file
The certificate records that the prosecuting authority has declined to prosecute at the instance of the State and can enable the defined private route. It does not convert the entire docket, internal deliberations or material supplied by another person into the proposed prosecutor's property.
Create a request schedule that distinguishes material already supplied by the complainant, the decision and reasons communicated by the NPA, the certificate, public court records, police-held material, internal prosecutorial records and third-party representations. Different holders, exclusions and procedural rights may apply. A focused schedule is more useful than a demand for “the whole docket including every representation.”
The NPA's PAIA manual identifies categories and the institutional process for access requests. PAIA requires the correct body, form and requested record to be identified, and contains grounds for refusing access. The requester should anticipate notice or participation where disclosure may affect another person's confidential information, safety, privacy, legal privilege or fair-trial interests.
Treat accused representations as contested material
Representations made to a prosecutor may contain admissions, denials, legal submissions, confidential material, information about witnesses or privileged communications. The NPA manual indicates that accused representations are treated on a without-prejudice basis. That official position does not by itself decide every future dispute, but it is a strong warning against promising disclosure.
In the High Court Rose decision, the proposed private prosecutor sought access after the NPA declined to prosecute. The court's merits reasoning rejected entitlement to the accused's representations, including because of their confidential character and the unfair advantage disclosure could create. That judgment remains important primary authority at that level.
However, the Supreme Court of Appeal's 2026 judgment disposed of the appeal for non-joinder of the accused, whose rights would be directly affected. The SCA expressly did not resolve the merits. A sound article must therefore say that the High Court ruled against access, while the later appellate result rests on joinder and leaves the substantive question undetermined at SCA level.
Join people whose rights the order would affect
If a court application seeks disclosure of a person's representations, that person may have a direct and substantial interest in the order. The latest Rose judgment is a concrete reminder that an access applicant cannot treat the record holder as the only necessary respondent when another person's rights are centrally at stake.
Joinder is not a technical box that guarantees success after correction. It ensures that an affected person can be heard. Questions about notice, redaction, confidentiality regimes, privilege and fair-trial risk remain. Obtain procedural advice before launching an application or attaching sensitive material to public court papers.
Request what is lawfully useful, not merely interesting
A proposed prosecutor can begin with material already lawfully held: original complaint, exhibits supplied, witness contact details obtained appropriately, medical or financial records for which the person has authority, the written declination, certificate and public documents. Preserve provenance and do not coach witnesses to align with a preferred narrative.
Ask the NPA to identify the available access channel and request categories necessary for the proposed prosecution. Explain the right relied on and why access is required where PAIA calls for it. If only part of a record is protected, severability or redaction may be relevant, but neither should be promised without applying the Act to the actual content.
Do not obtain leaked docket material, impersonate an official, induce breach of confidentiality or publish an accused person's representations. Unlawfully sourced evidence can create criminal, civil, privacy, professional and trial-fairness problems. Keep the prospective criminal process separate from online campaigning or pressure on witnesses.
Assess whether private prosecution is viable
The prosecutor carries practical and legal responsibilities that differ from being a complainant. Counsel should examine standing, the offence and charge, territorial jurisdiction, admissible evidence, witness availability, prosecutorial independence, security, service, disclosure duties, costs and possible adverse consequences. The certificate does not prove guilt and the NPA's refusal does not mean a private prosecution must fail.
Ask whether further investigation can lawfully fill a real evidential gap, whether the contemplated charge matches the evidence, and whether another remedy addresses the underlying harm more appropriately. Civil litigation, review, professional complaints and criminal prosecution have distinct purposes and burdens; one route should not be used to evade the safeguards of another.
Important limitation
This is general South African legal information. Standing, the certificate, time, security, charge, evidence, PAIA exclusions, joinder, confidentiality, privilege, fair-trial rights and forum need advice on the exact record.
FAQs
Does a nolle prosequi certificate include the prosecutor's full file?
No. The certificate enables a defined private-prosecution route when statutory requirements are met. Access to other records must be assessed separately under the applicable information-access, confidentiality and procedural rules.
Did the Supreme Court of Appeal decide that accused representations are secret?
No. In the 2026 Rose appeal, the SCA dismissed the matter for failure to join the accused and expressly did not decide the substantive access question. The earlier High Court ruling against access remains a separate part of the history.
Can a PAIA request extend the three-month certificate period?
Do not assume so. The Criminal Procedure Act timing must be calculated from the certificate and actual institution step. Run access work and prosecution preparation without sacrificing the statutory position.
May the proposed prosecutor publish the representations if someone leaks them?
That is unsafe. Confidentiality, privilege, privacy, fair-trial rights, source legality and court restrictions may apply. Preserve the material securely and obtain advice before using or disclosing it.
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Legal note
This article is general legal information for South African readers. It is not legal advice. Speak to a qualified legal professional about your specific facts before taking action.