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[2015] ZASCA 206
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National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development (20781/2014) [2015] ZASCA 206; 2016 (1) SACR 308 (SCA) (4 December 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 20781/2014
In
the matter between:
NATIONAL
SOCIETY FOR THE
PREVENTION
APPELLANT
OF
CRUELTY TO ANIMALS
and
MINISTER
OF JUSTICE AND CONSTITUTIONAL
FIRST RESPONDENT
DEVELOPMENT
NATIONAL
DIRECTOR OF PUBLIC
SECOND RESPONDENT
PROSECUTION
Neutral
citation:
National
Society for the Prevention of Cruelty to Animals v Minister of
Justice and Constitutional Development
(20781/2014)
[2015] ZASCA 206
(4 December 2015)
Coram:
Maya
DP, Petse, Saldulker and Mbha JJA and Van der Merwe AJA
Heard:
19
November 2015
Delivered
4
December 2015
Summary:
Constitutional
law
-
constitutional
challenge to Act s 7(1)(
a
)
of the
Criminal Procedure Act 51 of 1977
- whether the section is
unconstitutional insofar as it allows only private persons to
institute private prosecutions and not juristic
persons - whether the
differentiation is rationally connected to a legitimate governmental
purpose.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Fourie J sitting as court of
first instance).
The
appeal is dismissed.
JUDGMENT
Saldulker
JA (Maya DP, Petse and Mbha JJA and Van Der Merwe AJA concurring):
[1]
This appeal
concerns
a constitutional challenge to s 7(1)
(a)
of
the Criminal Procedure Act 51 of 1977, (the CPA), to the extent that
it allows only a private person to institute a private
prosecution and not a juristic person. The Gauteng Division of the
High Court, Pretoria, (Fourie J), dismissed an application by
the
appellant, the National Society for the Prevention of Cruelty to
Animals
,
against the first respondent, the Minister of Justice and
Constitutional Development (the Minister), and the second respondent,
the National Director of Public Prosecutions (the NDPP) to declare
the provisions of s 7(1)
(a)
of
the CPA invalid and unconstitutional to the extent that they prohibit
juristic persons from instituting and conducting private
prosecutions
merely because they are not private persons.
[2]
The appellant is a juristic person, created in terms of s 2 of the
Societies for the Prevention of Cruelty to Animals Act 169
of 1993,
(the SPCA Act). The objects of the appellant are set out in s 3 of
the SPCA Act and include:
(i)
determining, controlling and co-ordinating the policies and standards
of societies, in order to promote uniformity;
(ii)
preventing the ill-treatment of animals by promoting their good
treatment by man;
(iii)
taking cognisance of the application of laws affecting animals and
societies and making representations in connection therewith
to the
appropriate authority;
(iv)
doing all things reasonably necessary for or incidental to the
achievement of the aforegoing objectives.
[3]
The appellant is managed and controlled by a board consisting of
directors elected in accordance with a constitution and a director
nominated by the minister.
[1]
In
terms of s 6 (1) of the SPCA Act, the appellant shall for the
purposes of s 8
[2]
of
the Animal Protection Act 71 of 1962 (the Animal Protection Act) be a
society for the prevention of cruelty to animals. The Animal
Protection Act criminalises certain acts of cruelty to animals. The
duties, powers and functions of the appellant are set out in
s 6 of
the SPCA Act, which include the appointment of suitably qualified
persons as inspectors, conferring upon inspectors certain
functions
and powers which the appellant may deem necessary, including the
power to enter premises, search and seize animals, material,
substances or other articles on such premises.
[4]
The Minister is charged with the administration of the
Criminal
Procedure Act 51 of 1977
. The NDPP is cited in its representative
capacity as head of the National Prosecuting Authority (the NPA)
responsible for the prosecution
of crimes on behalf of the State. The
NPA is established in terms of the National Prosecuting Authority Act
32 of 1998 (the NPA
Act) which established a single national
prosecuting authority in compliance with s 179 of the
Constitution.
[3]
[5]
The
respondents did not oppose the appellant’s application in the
court below. They, however, filed ‘explanatory affidavits’
and made submissions before us, akin to that of an amicus curiae. I
will return to this aspect later.
The
appellant’s contentions
[6]
The appellant seeks an order declaring s 7(1)
(a)
of
the CPA unconstitutional. Its case is summarised as follows: s
7(1)
(a)
differentiates
between natural persons on one hand and juristic persons on the other
hand. There is no good reason for differentiating
between the two
classes of persons. As a result, the differentiation fails to serve a
legitimate governmental purpose and is therefore
irrational and
non-compliant with the rule of law as an articulated standard in s
1(c) of the Constitution. Further, the differentiation
fails to
render both natural and juristic persons equal before the law and
specifically denies juristic persons equal benefit of
the law
rendering the impugned provision non-compliant with the articulated
standard in s 9(1) of the Constitution. The consequential
relief
claimed in the notice of motion by the appellant was to excise
the words ‘private’ and ‘individual’
from the
provisions of s 7 (1)
(a)
of
the CPA. However, during argument counsel for the appellant appeared
to be content with only the word ‘private’ being
excised
from the section.
Background
[7]
The appellant has, as stated, a policing function to prevent cruelty
to animals. During November 2010, the appellant was made
aware of a
religious ritual involving a slaughtering of a camel as a sacrifice
by a group of Islamic
worshippers
in Lenasia. In compliance with its statutory obligations, an
inspector of the appellant visited the venue where the
appellant
contends the inspector witnessed the ‘cruel and inhumane’
treatment of the animal. To prevent the animal
from suffering
further, and ‘in an act of compassion’, the inspector
shot the camel to relieve it of its misery. As
the inspector was of
the opinion that the treatment of the camel by
certain
of the worshippers constituted an offence in terms of the Animal
Protection Act, the matter was referred to the prosecuting
authorities. According to the appellant, despite the overwhelming
evidence it furnished to the prosecutors, the prosecuting authority
declined to prosecute. The appellant’s request for a
certificate
nolle
prosequi
(refusal
to prosecute) so that it could take up the criminal case and
privately prosecute the offenders, was refused by the prosecutor.
The
reason being that the appellant was a juristic person and not a
‘private person’ as required by s 7(1)
(a)
of
the CPA. It is as a result of this refusal, among others, by the
public prosecutor, which may also arise in the future, that
the
appellant seeks to have the impugned provision declared
unconstitutional.
[8]
The statutory provisions regulating private prosecution have been in
place for almost 100 years. The provisions of s 7(1) of
the CPA are
framed in almost identical terms to the old Criminal Procedure and
Evidence Act 31 of 1917. They retain the limitation
that only a
private person is allowed to institute a private prosecution and read
as follows:
‘
(1)
In any case in which a Director of Public Prosecutions declines to
prosecute for an alleged offence –
(a)
Any
private person who proves some substantial and peculiar interest
in the issue of the trial arising out of some injury
which he
individually suffered in consequence of the commission of the said
offence;
(b)
a
husband, if the said offence was committed in respect of his wife;
(c)
the
wife or child or, if there is no wife or child, any of the next of
kin of any deceased person, if the death of such person is
alleged to
have been caused by the said offence; or
(d)
the
legal guardian or curator of a minor or lunatic, if the said offence
was committed against his ward, may, subject to the provision
of
section 9 and
section 59(2)
of the
Child Justice Act, 2008
, either in
person or by a legal representative, institute and conduct a
prosecution in respect of such offence in any court competent
to try
that offence.’
[9]
Section 7(2)
of the CPA, provides for the issuing of a certificate by
the prosecuting authority to the effect that he or she has perused
the
statements and declines to prosecute on behalf of the State. The
prosecuting authority is obliged to furnish a certificate called
nolle
prosequi
to
someone who wishes to prosecute privately.
Section 9
provides for
security to be deposited by a private prosecutor, whereas
s 10
, read
with
s 12
, determines the process and manner of a private
prosecution.
[10]
Section 8
of the CPA regulates private prosecution by a ‘body’
under statutory right and reads:
‘
(1)
Any body upon which or person upon whom the right to prosecute in
respect of any offence is expressly conferred by law, may
institute
and conduct a prosecution in respect of such offence in any court
competent to try that offence.
(2)
A body which or a person who intends exercising a right of
prosecution under subsection (1), shall exercise such right only
after consultation with the attorney-general concerned and after the
attorney-general has withdrawn his right of prosecution in
respect of
any specified offence or any specified class or category of offences
with reference to which such body or person may
by law exercise such
right of prosecution.
(3)
An attorney-general may, under subsection (2), withdraw his right of
prosecution on such conditions as he may deem fit, including
a
condition that the appointment by such body or person of a prosecutor
to conduct the prosecution in question shall be subject
to the
approval of the attorney-general, and that the attorney-general may
at any time exercise with reference to any such prosecution
any power
which he might have exercised if he had not withdrawn his right of
prosecution.’
[11]
In the context of the prevention of cruelty to animals, the
Prevention of Cruelty to Animals Act 8 of 1914 (the Prevention
of
Cruelty to Animals Act) applied. This Act was repealed by the Animal
Protection Act in 1962. Before its repeal, s 12 of the
Prevention of
Cruelty to Animals authorised the society for the prevention of
cruelty to animals to privately prosecute offenders.
Section 12
provided as follows:
‘
(1)
Any society for the prevention of cruelty to animals may, by any
person authorised thereto in writing under the hand of the
chairman
or secretary thereof, prosecute for any offence against this Act and
the provisions of any law relating to private prosecutions
shall
apply to all such prosecutions.
(2)
A magistrate may, by writing under his hand, authorise any officer of
such a society to exercise within his district all or
any of the
powers conferred by this Act upon a police officer and in the
exercise of such powers the officer of the society shall
when
required produce for inspection such documents of authority. The
magistrate may for good cause revoke any such authority.’
It
appears therefore that historically, the predecessor of the appellant
had the right specially conferred by statute, to privately
prosecute
offenders. This power is not conferred by the Animal Protection Act
or the SPCA Act.
[12]
The appellant is a public body carrying out its functions in the
interest of the public. In terms of s 6(2)
(e)
of the
SPCA Act, the appellant has the power to defend or institute legal
proceedings connected with its functions, including such
proceedings
in an appropriate court of law or prohibit the commission by any
person of a particular kind of cruelty to animals,
and assist a
society in connection with such proceedings against it or by it.
Thus, it is clear from the provisions of the SPCA
Act, that it does
not confer on the council or the society the right to privately
prosecute any offender.
Constitutional
challenge
[13]
As stated above, the appellant contends that s 7(1)
(a)
of
the CPA is unconstitutional on the basis that it violates subsecs
1
(c)
and
9(1) of the Constitution. Significantly, the appellant does not
challenge the provisions of s 8 of the CPA. The appellant asserts
that the right to bring a private prosecution ought to be capable of
enforcement by any person, both a natural and a juristic person.
[14]
The rule of law is a founding value entrenched in s 1
(c)
of
the Constitution. It encapsulates the principle of legality and
the requirement that the exercise of public power may not
be
arbitrary but must be rationally connected to a legitimate
governmental purpose.
[15]
For purposes of this enquiry, if the differentiation inherent in
section 7(1)
(a)
of
the CPA fails to serve a legitimate governmental purpose then the
differentiation is irrational and falls foul of the rule of
law. In
Prinsloo
v Van der Linde and another
[4]
it
was held that when Parliament enacts legislation that differentiates
between groups or individuals it is required to act in a
rational
manner. The court said:
'In
regard to mere differentiation the constitutional State is expected
to act in a rational manner. It should not regulate in an
arbitrary
manner or manifest "naked preferences'' that serve no legitimate
governmental purpose, for that would be inconsistent
with the rule of
law and the fundamental premises of the constitutional State
[5]
.
. . .
[16]
The provisions of s 9(1) of the Constitution read: ‘[e]veryone
is equal before the law and has the right to equal protection
and
benefit of the law.’
The
test to determine whether s 9(1) has been violated was set out as
follows in
Prinsloo
:
‘
[25]
. . . [t]he purpose of this aspect of equality is, therefore, to
ensure that the State is bound to function in a rational manner.
This
has been said to promote the need for governmental action to relate
to a defensible vision of the public good, as well as
to enhance the
coherence and integrity of legislation. In Mureinik's celebrated
formulation, the new constitutional order constitutes
'a bridge away
from a culture of authority . . . to a culture of justification.
[26]
Accordingly, before it can be said that mere differentiation
infringes s 8 it must be established that there is no rational
relationship between the differentiation in question and the
governmental purpose which is proffered to validate it. In the
absence
of such rational relationship the differentiation would
infringe s 8. But while the existence of such a rational relationship
is
a necessary condition for the differentiation not to infringe s 8,
it is not a sufficient condition; for the differentiation might
still
constitute unfair discrimination if that further element, referred to
above, is present.’
[17]
In
Glenister
v President of the Republic of South Africa & others,
[6]
the
Constitutional Court said:
‘
Under
our Constitution, national legislative authority vests in
Parliament. However, in the exercise of its legislative
authority,
“Parliament is bound only by the Constitution, and
must act in accordance with, and within the limits of, the
Constitution”.
But, like all exercise of public power, there
are constitutional constraints that are placed on Parliament. One of
these constraints
is that “there must be a rational
relationship between the scheme which it adopts and the achievement
of a legitimate governmental
purpose”. Nor can Parliament act
capriciously or arbitrarily. The onus of establishing the absence of
a legitimate governmental
purpose, or of a rational relationship
between the law and the purpose, falls on the objector. To survive
rationality review, legislation
need not be reasonable or
appropriate.
’
(Footnotes
omitted.)
[18]
In
Weare
& another v Ndebele NO & others
[7]
after
accepting the high court’s finding that s 9(1) can be applied
to juristic persons, the court considered whether differentiating
between natural persons on the one hand and juristic persons on the
other was rationally connected to the legitimate aim by government
of
regulating gambling. The court held that legislation which
differentiated between classes of persons was considered not to
violate s 9(1) of the Constitution if it was rationally linked to the
achievement of a legitimate government purpose.
[19]
Counsel for the appellant properly conceded that the regulation of
private prosecutions is a legitimate governmental purpose.
Therefore,
the question is whether the provisions of s 7(1)
(a)
of the
CPA are rationally connected to this purpose. The rationality
threshold is low. The connection must not be arbitrary but
must be
based on a reason that does not have to be the most efficient or the
only reason. Put differently, the question is whether
there is an
acceptable reason for the limitation of private prosecutions
contained in s 7(1)
(a)
.
This question must be answered within the context of the whole of s 7
and s 8 of the CPA, s 179 of the Constitution and the provisions
of
the NPA Act.
[20] Section 179
of the Constitution reads:
‘
(1)
There is a single national prosecuting authority in the Republic,
structured in terms of an Act of Parliament, and consisting
of-
(a)
a National Director of Public Prosecutions, who is the head of the
prosecuting authority, and is appointed by the President,
as head of
the national executive; and
(b)
Directors of Public Prosecutions and prosecutors as determined by an
Act of Parliament.
(2)
The prosecuting authority has the power to institute criminal
proceedings on behalf of the state, and to carry out any necessary
functions incidental to instituting criminal proceedings.
(3)
National legislation must ensure that the Directors of Public
Prosecutions -
(a)
are appropriately qualified; and
(b)
are responsible for prosecutions in specific jurisdictions, subject
to subsection (5).
(4)
National legislation must ensure that the prosecuting authority
exercises its functions without fear, favour or prejudice.
(5)
The National Director of Public Prosecutions -
(a)
must
determine, with the concurrence of the Cabinet member responsible for
the administration of justice, and after consulting the
Directors of
Public Prosecutions, prosecution policy, which must be observed in
the prosecution process;
(b)
must
issue policy directives which must be observed in the prosecution
process;
(c)
may
intervene in the prosecution process when policy directives are not
complied with; and
(d)
may
review a decision to prosecute or not to prosecute, after consulting
the relevant Director of Public Prosecutions and after
taking
representations within a period specified by the National Director of
Public Prosecutions, from the following:
(i)
The accused person.
(ii)
The complainant.
(iii)
Any other person or party whom the National Director considers to be
relevant.
(6)
The Cabinet member responsible for the administration of justice must
exercise final responsibility over the prosecuting authority.
(7)
All other matters concerning the prosecuting authority must be
determined by national legislation.’
[21]
In
terms of s 32(1)
(a)
of the
NPA Act, a member of the prosecuting authority shall serve
impartially and exercise, carry out or perform his or her powers,
duties and functions in good faith and without fear, favour or
prejudice and subject only to the Constitution and the law. Sections
21(1) and 22(2)
(a)
of the
NPA Act provide that the NDPP must determine prosecuting policy and
issue policy directives, which must be observed in the
prosecuting
process. In terms of s 22(2)
(b)
of the
NPA Act, the NDPP may intervene in any prosecuting process when
policy directives are not complied with. Section 22(2)
(c)
of the
NPA Act provides that the NDPP may review a decision to prosecute or
not to prosecute after consulting the relevant Director
of Public
Prosecutions and after taking representations, within the periods
specified by the NDPP of the accused person, the complainant
and any
other person or body who the NDPP considers to be relevant.
[22]
In
Democratic
Alliance & others v Acting National Director of Public
Prosecutions & others,
[8]
this
court held at paras 23 to 32 that in a constitutional state such as
South Africa there were by definition legal limits to the
exercise of
public power: the government, like everyone else, was bound by and
equal before the law. The power to enforce the rule
of law resided in
the judiciary through its powers of review under the rule of law,
which extended beyond the confines of a review
of 'administrative
action' under the Promotion of Administrative Justice Act 3 of 2000
(PAJA). When it decided to discontinue a
prosecution, the NDPP
exercised a public power which was subject to a rule of law review,
even if it did not constitute administrative
action.
And
at para 27 the court said:
‘
While
there appears to be some justification for the contention that the
decision to discontinue a prosecution is of the same genus
as a
decision to institute or continue a prosecution, which is excluded
from the definition of “administrative action”
in terms
of s 1(ff) of PAJA, it is not necessary to finally decide that
question. Before us it was conceded on behalf of the first
and third
respondents that a decision to discontinue a prosecution was subject
to a rule of law review. That concession in my view
was rightly made.
. . .’
[23]
In
National
Director of Public Prosecutions & others v Freedom Under Law,
[9]
this
court held that the same policy considerations underlying the
exclusion of a decision to institute or to continue to prosecute
from
the ambit of PAJA applied to a decision not to prosecute or to
discontinue a prosecution.
At
para 27 the court said:
‘
(a)
It
has been recognised by this court that the policy considerations
underlying our exclusion of a decision to prosecute from a PAJA
review are substantially the same as those which influenced the
English courts to limit the grounds upon which they would review
decisions of this kind.
(b)
The
English courts were persuaded by the very same policy considerations
to impose identical limitations on the review of decisions
not to
prosecute or not to proceed with prosecution.
(c)
In
the present context I can find no reason of policy, principle or
logic to distinguish between decisions of these two kinds.
(d)
Against
this background I agree with the obiter dictum by Navsa JA
in
DA and Others v Acting NDPP
,
that decisions to prosecute and not to prosecute are of the same
genus, and that, although on a purely textual interpretation
the
exclusion in s 1(ff) of PAJA is limited to the former, it must be
understood to incorporate the latter as well.
(e)
Although
decisions not to prosecute are — in the same way as decisions
to prosecute — subject to judicial review, it
does not extend
to a review on the wider basis of PAJA, but is limited to grounds of
legality and rationality.’
[24]
Thus, all decisions by the prosecuting authority to prosecute or not
to prosecute must be taken impartially, without fear,
favour or
prejudice. They must also adhere to prosecuting policy and policy
directives. It goes without saying that the aim of
prosecuting policy
and policy directives must be to serve the interests of justice for
the benefit of the public in general. And
decisions to prosecute or
not to prosecute may be reviewed, either by the NDPP under the NPA
Act or by the courts under the rule
of law.
[25]
It follows that a decision of the prosecuting authority not to
prosecute, which of course is a prerequisite for a private
prosecution in terms of s 7(1) of the CPA, must be made for a
good reason. Against this background the conclusion that private
prosecutions should be limited to exceptional cases, cannot be
faulted. The exceptions are those found in subsecs 7(1) and
8 of
the CPA.
[26]
The effect of s 7(1) of the CPA is to permit private prosecutions
only where private and personal interests are at stake. This
is
explained in
Attorney
General v Van der Merwe and Bornman
[10]
where
the court said:
‘
The
object of the phrase [substantial and peculiar interest] was clearly
to prevent private persons from arrogating to themselves
the
functions of a public prosecutor and prosecuting in respect of
offences which do not affect them in any different degree than
any
other member of the public; to curb, in other words, the activities
of those who would otherwise constitute themselves public
busybodies.
The interest the legislature had in mind may be pecuniary, but may
also be such that it cannot sound in money - such
imponderable
interests, for example, as the chastity and reputation of a daughter
or ward, the inviolability of one’s person
or the persons of
those dear to us. Permission to prosecute in such circumstances was
conceived as a kind of safety-valve. An action
for damages may be
futile against a man of straw and a private prosecution affords a way
of vindicating those imponderable interests
other than the violent
and crude one of shooting the offender. The vindication is real: it
consoles the victim of the wrong; it
protects the imponderable
interests involved by the deterrent effect of punishment and it sets
at naught the inroad into to such
inalienable rights by effecting
ethical retribution. Finally it effects atonement, which is a social
desideratum.’
[27]
In
Barclays
Zimbabwe Nominees (Pvt) Limited v Black
[11]
the
question arose as to whether or not a company was entitled to bring a
private prosecution. Milne JA said, at 724 G, that the
term ‘private
person’ should be interpreted as meaning only a natural person,
and expressly excluded a company or a
juristic person. And at 726F-J
he said:
‘
A
corporate body as such has no human passions and there can be no
question of the company, as such, resorting to violence. It was
submitted, however, that the temptation to resort to self-help “is
not diminished by the fact that the loss sustained relates
to a
share-holding rather than to some other form of asset”. If,
however, s 7(1)
(a)
were
to be read as including a company then it would only be an injury
suffered by the company as such which could give rise to
a private
prosecution and not an injury suffered by an individual shareholder
or group of shareholders. These would not necessarily
coincide.
The
general policy of the Legislature is that all prosecutions are to be
public prosecutions in the name and on behalf of the State.
See
ss 2
and
3
of the
Criminal Procedure Act. The
exceptions are firstly where
a law expressly confers a right of private prosecution upon a
particular body or person (these bodies
and persons being referred to
in
s 8(2))
and, secondly, those persons referred to in
s 7.
There may
well be sound reasons of policy for confining the right of private
prosecution to natural persons as opposed to companies,
close
corporations and voluntary associations such as, for example,
political parties or clubs.’
[28]
In the final analysis, private prosecutions in terms of
s 7
of the
CPA are only permitted on grounds of direct infringement of human
dignity. This is the reason for
s 7(1)
(a)
of
the CPA and for the exclusion of juristic persons other than those
mentioned in
s 8
from instituting private prosecutions. Human dignity
is a foundational value of our Constitution. To allow for private
prosecutions
other than in terms of s 8 of the CPA only on grounds of
direct infringement of human dignity, is for the reasons mentioned,
rationally
related to the legitimate government purpose of limitation
of private prosecutions. I therefore find that s 7(1)
(a)
of the
CPA is not unconstitutional.
[29]
Another
aspect requires attention. It is unfortunate that the respondents
failed to deal with the merits and provide this court
with the
rationale for the limitation of private prosecutions. The first
respondent is charged with the administration of the
Criminal
Procedure Act. The
second respondent was cited as head of the single
national prosecuting authority responsible for the institution of
criminal proceedings
on behalf of the State. The government and the
respondents have a constitutional duty to the courts, to the
legislature and the
citizens of this country to be open and
accountable in a manner that promotes the rule of law.
Our
courts have on many occasions referred to the special duty that rests
on the government in constitutional litigation.
[12]
As was said by Cameron J in
Van
Niekerk v Pretoria City Council,
[13]
government
cannot ‘play possum’ by simply rolling over and playing
dead when a constitutional challenge is brought against
a statute.
[30]
As to the costs aspect, both parties did not seek costs. In
accordance with the principle set out in
Biowatch
Trust v Registrar, Genetic Resources & others
[14]
no
order as to cost is made.
[31]
The following order is made:
The
appeal is dismissed.
_________________
H
Saldulker
Judge
of Appeal
APPEARANCES:
For
the Appellant
K Hopkins (with S Freese and L Nkoana)
Instructed by:
Marston & Taljaard
c/o Friedland Hart Solomon & Nicolson, Pretoria
Honey Attorneys,
Bloemfontein
For
the Respondents:
L Montsho – Moloisane SC (with
VD Mtsweni)
Instructed by:
The State Attorney,
Pretoria
The
State Attorney, Bloemfontein
[1]
In terms of s 1 of the SPCA Act which
contains the definitions, reference to ‘Minister’ means
the Minister of Agriculture.
[2]
Section 8 of the Animal Protection
Act sets out the powers of officers of society for prevention of
cruelty to animals.
[3]
The NPA Act
repealed the whole of the Attorneys-General Act 92 of 1992.
Historically, South Africa had attorneys-general (head
of
prosecution) at various divisions of the high courts. There was no
single national prosecuting authority, and the attorneys-general
acted independently of each other.
[4]
Prinsloo
v Van der Linde & another
[1997]
ZACC 5
;
1997 (3) SA 1012
(CC) para 25.
[5]
See para 25.
[6]
Glenister v
President of the Republic of South Africa & others
[2011] ZACC 6
;
2011
(3) SA 347
(CC) para 55.
[7]
Weare & another v Ndebele &
others
[2008] ZACC 20;
2009 (1) SA 600 (CC).
[8]
Democratic Alliance & others v
Acting National Director of Public Prosecutions &
o
thers
[2012] ZASCA 15; 2012 (3)
SA 486 (SCA).
[9]
National
Director of Public Prosecutions & others v Freedom Under Law
[2014] ZASCA 58
;
2014 (2) SACR 107
(SCA) paras 25 – 27.
[10]
Attorney
General v Van Der Merwe and Bornman
1946
OPD 197
at 201.
[11]
Barclays
Zimbabwe Nominees (Pvt) Limited v Black
[1990]
ZASCA 92; 1990 (4) SA 720 (A).
[12]
See
Permanent
Secretary, Department of Welfare, Eastern Cape v Ngxuza & others
[2001] ZASCA 85
;
2001 (4) SA 1184
(SCA) paras 14 and 15;
Van
der Merwe & another v Taylor NO & others
[2007] ZACC 16
;
2008 (1) SA 1
(CC) paras 71 and 72).
[13]
Van Niekerk v Pretoria City
Council
1997 (3) SA 839
(T) at 850A-C.
[14]
Biowatch
Trust v Registrar, Genetic Resources & others
[2009] ZACC 14
;
2009 (6) SA 232
(CC)
paras 21 – 25.