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[2015] ZAKZPHC 25
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Nundalal v Director of Public Prosecutions KZN and Others (AR723/2014) [2015] ZAKZPHC 25 (8 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NO: AR 723/2014
In the matter
between:
ARNOLD
DENZIL
NUNDALAL
.....................................................................................
APPLICANT
and
THE
DIRECTOR OF PUBLIC PROSECUTIONS
KZN
..............................
FIRST
RESPONDENT
PRIVATE
PROSECUTOR, NIEMESH
SINGH
........................................
SECOND
RESPONDENT
THE
REGIONAL MAGISTRATE, A MAHARAJ
NO
................................
THIRD
RESPONDENT
THE CLERK OF THE
“U” REGIONAL COURT,
DURBAN
.......................................................................................................
FOURTH
RESPONDENT
JUDGMENT
Date of hearing: 27
March 2015
Date
of judgment: 8 May 2015
D.
PILLAY J
Constitution
of the Court
[1]
This
application for review serves before a full court of three judges by
order of the erstwhile judge president granted on 28 November
2014.
As a review of the administrative decisions of the first respondent,
Director of Public Prosecutions KZN (DPP), and of the
fourth
respondent, Clerk of ‘U’ Regional Court (the clerk), it
should serve before a single judge sitting as a court
of first
instance.
[1]
It should take the
form of an application on notice of motion.
[2]
[2]
As
a purported review of the decision of the third respondent regional
magistrate, it should also follow r 53 read with r 6 of the
Uniform
Rules of Court. However, if it is not a review but a criminal or
civil appeal, then it must serve before a full bench of
not fewer
than two judges.
[3]
[3]
Two
or more judges constitute a full bench and three judges make up a
full court.
[4]
This terminology
is often used interchangeably
[5]
creating unnecessary confusion as might also have happened in this
case. In terms of s 1 of the Superior Courts Act 10 of 2013
‘full
court’ means a Division of the High Court consisting of three
judges.
[6]
Why after
representation by the parties to the erstwhile judge president this
matter now serves before a full court is unclear.
Be that as it may
both parties confirmed at the outset of the hearing that the court is
properly constituted.
Background
[4]
The second respondent private prosecutor,
Niemesh Singh, seeks to prosecute the applicant, Arnold Denzil
Nundalal, privately on
charges of defeating the ends of justice and
making a false statement. The private prosecutor obtained a
certificate of
nolle prosequi
from the DPP. He caused the clerk to issue a criminal summons. The
regional magistrate who presided at the criminal trial dismissed
in
limine
challenges to the certificate,
the non-payment of security in terms of s 9(1)(b) of the Criminal
Procedure Act 51 of 1977 (CPA)
and the validity of the summons. In
this application the applicant seeks to review and set aside the
nollle
,
the summons and the ruling of the regional magistrate. Do these
reviews fall under the Promotion of Administrative Justice Act
3 of
2000 (PAJA) or the common law exclusively, read with r 53? This
application was brought exclusively under the common law read
with
the review provisions in s 22 of the Superior Courts Act and r 53 of
the Uniform Rules of Court.
Reviews
under PAJA
[5]
Bato Star Fishing (Pty) Ltd V Minister
Of Environmental Affairs And Others
[2004] ZACC 15
;
2004
(4) SA 490
(CC) offers the short answer to the question above:
‘
There
are not two systems of law regulating administrative action - the
common law and the Constitution - but only one system of
law grounded
in the Constitution. The Courts' power to review administrative
action no longer flows directly from the common law
but from PAJA and
the Constitution itself.’
Thus
it is to PAJA that I turn.
[6]
Section 1 of PAJA excludes from the
definition of ‘administrative action’ any decision taken
or any failure to take
a decision by an organ of state excluding:
‘
(ee)
the judicial functions of a judicial officer of a court…
(ff)
a decision to institute or continue a prosecution.
’
[7]
Subsection (ee) would exclude the regional
magistrate’s ruling from the definition of ‘administrative
action’.
Therefore it is not subject to PAJA. As for the
summons the clerk is not a judicial officer performing judicial
functions when
he or she issues a summons. Section 1 of Superior
Courts Act defines ‘judicial officer’ to mean any person
referred
to in s 174 of the Constitution of the Republic of South
Africa, 1996 which deals with the appointment of judicial officers.
The
act of issuing a summons in a private prosecution is
therefore administrative action of an organ of state as defined in s
1(a)
of PAJA.
[8]
The converse of a decision to institute or
continue with a prosecution (i.e. to refuse to prosecute) is not
excluded under sub s
1(ff) of PAJA. The DPP’s decision to
issue a certificate is an administrative decision. Merely because the
decision
to issue a certificate takes place in the context of
criminal law does not strip it of its essential character as an
administrative
act. In
Buthelezi
and Others v Attorney General, Natal
1986 (4) SA 377
(D) three judges of this division found that an
accused had a right to a hearing before the prosecution issues a
certificate refusing
bail in term of s 30(1) of the Internal Security
Act 74 of 1982. Applying the
audi
alteram partem
principle the court
acknowledged that the decision to issue that certificate was
administrative. Issuing a
nolle
also
involves prosecutorial discretion. Accordingly PAJA applies to review
and set aside the certificate.
Uniform
Rule 53
[9]
Section
22 of the Superior Courts Act prescribes a limited range of 4 grounds
of review of proceedings of any Magistrates’
Court.
[7]
The applicant has not pleaded any ground of review. None of the 4
grounds apply to the ruling of the regional magistrate. Because
the
applicant challenges the reasoning and result it is at most an
appeal.
[10]
However, the issues before the regional
magistrate are the same issues before this court. Any decision of
this court will be binding
on the regional court. Furthermore the
record of the proceedings in that court is before a full court. The
respondent has not objected
in terms of either r 30 or 30A to the
procedure, form and non-compliance with the Uniform Rules pertaining
to reviews from the
Magistrates’ Court. All the issues are
conveniently consolidated in one application and can be disposed of
simultaneously.
The
Certificate
[11]
I
deal first with the review of the certificate and the summons under
PAJA before turning to consider the decision of the regional
magistrate. The proper procedure for reviewing administrative action
is prescribed in PAJA and its rules. Section 6(2) lists the
grounds
on which administrative actions may be reviewed. Section 7 prescribes
a time limit of ‘not later than 180 days’
from which the
person concerned who was informed of the administrative action,
became aware of the action and the reasons for it
or might reasonably
have been expected to have become aware of the action and the
reasons.
[8]
[12]
Whenever
administrative action is challenged the starting point is to
ascertain the reasons for the decision. Without reasons the
decision
cannot be tested for rationality
[9]
and reasonableness
[10]
and
therefore justification, both standards being set by the CC.
[13]
Additional to the reasons must be the
record of the material that served before the decision-maker on the
basis of which she decided
to issue the certificate. Neither the
DPP’s reasons nor the record of the proceedings are before this
court. What the court
has is a copy of the certificate, and
correspondence and memoranda from senior counsel and attorneys for
the private prosecutor
exchanged with the DPP. Without the DPP’s
reasons for issuing the certificate there is no clarity as to why she
issued the
certificate and whether these documents informed her
decision.
[14]
The applicant invited the DPP in his notice
of motion to dispatch the record and reasons to the registrar of the
high court. She
did not respond. The applicant did not follow through
with an application to compel the DPP to produce the record with
reasons
to support its application to review and to set aside the
certificate. If he had and it transpired that the reasons were that
there
was insufficient evidence or that the matter was
de
minimis,
both of which are distinct
possibilities in this case, the applicant would have been able to
make short shrift of the private prosecution.
[15]
Another defect in this review is that this
application was launched on 11 October 2013. The DPP issued the
certificate on 24 August
2012. This was considerably more than the
180 days prescribed in s 7(1)b of PAJA. No application for
condonation for the delay
accompanies this application for review.
[16]
Notwithstanding the glaring procedural
flaws the private prosecutor has not objected to the application on
the grounds that the
applicant has not complied with the above 2
procedural requirements of PAJA. In fact neither counsel seemed to be
aware that PAJA
would apply in an application to set aside the
certificate and the summons. Counsel for the applicant doubted its
application.
[17]
Had the private prosecutor resisted the
application with a challenge to these defects, the challenge might
have been dispositive
of this aspect of the application. As he failed
to do so and as there are more pressing substantive considerations
the application
survives notwithstanding its procedural defects.
[18]
Turning
to the substantive complaint about the certificate the applicant’s
challenge is that the private prosecutor failed
to satisfy the
jurisdictional prerequisites for a private prosecution
[11]
by furnishing the DPP with proof that he had some substantial and
peculiar interest in the issue of the trial arising out of some
injury that he suffered as a result of the commission of the
offence.
[12]
The DPP failed to
apply her mind to the jurisdictional prerequisites for instituting a
private prosecution.
[13]
She
hastily issued the certificate as a result of the private prosecutor
threatening to obtain a mandamus against DPP.
[14]
So it was submitted for the applicant.
[19]
Erroneously,
the applicant and his counsel conflate the jurisdictional
prerequisites for a private prosecution
[15]
with the circumstances in which the DPP may decline to prosecute. A
certificate is quiet simply confirmation that the DPP declines
to
prosecute, nothing more nothing less. It is not a tarot foretelling
that the private prosecutor has ‘substantial and peculiar
interests’ and has been injured personally as a consequence of
the offence.
[20]
Du
Toit interprets s 7(2)(b) of the CPA to require the prosecuting
authority to issue the certificate provided that the requisites
in s
7(1) are met.
[16]
Respectfully this is not what s 7(2)(b) states. Section 7(2)(b)
states:
‘
The
attorney-general
[17]
shall, in any case in which he declines to prosecute, at the request
of the person intending to prosecute, grant the certificate
referred
to in paragraph (a).’
[21]It
merely refers to the person intending to prosecute in s 7(1). The
scheme of s 7 is such that
the
DPP must issue the certificate before the private prosecutor can
begin a prosecution. It is not as Du Toit seems to suggest
that the
DPP has to issue the certificate because the private prosecutor has
established the requisite interest.
Whether
the private prosecutor has such an interest does not inform the DPP’s
decision to issue the certificate. Noting that
‘private
prosecutions were unusual and a departure from the basic law that
criminal prosecutions must be conducted by a public
prosecutor’
a single judge held
in
Singh
v Minister Of Justice And Constitutional Development And Another
that
the prosecuting authority is not obliged by the provisions of s 7(2)
to issue a certificate.
[18]
The
prosecutor’s obligation is to decide whether the statements can
result in a conviction for the State. The certificate
in terms of s
7(2)(a) is
prima
facie
proof that the DPP has seen the statements or affidavits found in the
case but he declines to prosecute.
[19]
Whether the private prosecutor fulfills the jurisdictional
requirements is not the DPP’s concern. Nor is it her concern
what the person requesting the certificate plans to do with it. For
employment or other purposes he could request it simply as proof
that
he is freed from prosecution. Contrast this with the DPP’s
extensive powers to be consulted and to appoint the prosecutor
when
issuing a certificate under s 8(2) in a private prosecution under
statutory right. She could instruct a local senior prosecutor
to hold
a watching brief to inform her if and when the prosecution is
instituted. She might even intervene by way of application
to stop a
prosecution so that the State can commence or continue the
prosecution.
[20]
However, the decision to institute a private prosecution under s 7 is
entirely that of the private prosecutor to be properly taken
only
when he is able to meet the jurisdictional requirements for a private
prosecution.
[22]
A
certificate is issued for a specific offence. It has a lifespan of
three months after which it lapses.
[21]
This helps to enhance certainty and prevent abuse of private
prosecution.
[22]
The court may interdict a private prosecution on various grounds
including the private prosecutor’s lack of
locus
and
under the Vexatious Proceedings Act 3 of 1956.
[23]
[23]
Paragraph
4(c) of the NPA Manual Policy, a public Government Document,
[24]
requires a prosecutor to prosecute if there is sufficient evidence
for reasonable prospects of a conviction. In exercising its
discretion the prosecuting authority must have regard to the nature
and seriousness of the offence, the interests of the victim
and the
broader community and the circumstances of the offender.
[25]
[24]
Du
Toit summarises the circumstances in which the prosecuting authority
may decline to prosecute.
[26]
If a prosecutor declines to prosecute a possible inference is that
there is no
prima
facie
case to justify the continuation of the prosecution. A
prima
facie
case is one in which the allegations are supported by statements and
real and documentary evidence upon which a court should convict.
Even
if
prima
facie
evidence exists a prosecutor may refuse to prosecute on the grounds
of the triviality of the offence.
[27]
Prosecutors are urged to distinguish between
prima
facie
weak cases from stronger ones and to decline to prosecute in weak
cases
[28]
in order to avoid
congesting court rolls and to preserve public resources.
[29]
Not every insult to dignity that founds a civil action is necessarily
serious enough to justify a criminal prosecution.
[30]
Persisting with a weak case in order to influence an accused to pay
an admission of guilt fine to be rid of the worry, inconvenience
and
expense of fighting a criminal charge and not because of being guilty
is improper because an admission of guilt fine remains
on the
criminal record as a previous conviction with potentially serious
consequences. Thus a prosecution for even a trivial offence
is a
serious matter.
[25]
These are the considerations that should
have informed the prosecutor’s decision not to continue with
the prosecution of the
applicant. Whether the private prosecutor has
a substantive and peculiar interest and has suffered any injury
personally from the
offence are neither considerations nor
prerequisites for issuing a certificate. Without the DPP’s
reasons and the record
that served before her this court can make no
definitive findings on what considerations informed her decision to
issue the certificate.
To say that the private prosecutor’s
threats of a mandamus induced her to issue the certificate is pure
speculation.
[26]
A
point not raised by either party is the right to a hearing before the
prosecutor decides to issue the certificate. Prosecution
policy
anticipates input from both the victim and the offender in deciding
on whether to prosecute or not.
[31]
There is no evidence that the applicant participated in the
production of the DPP’s decision to issue the certificate.
Ordinarily
he should have been pleased not to be facing a public
prosecution. He seeks to set aside the certificate because it is a
jurisdictional
prerequisite for a private prosecution. Setting it
aside would spare him of that prosecution.
[27]
Without the reasons and the record serving
before the DPP being filed in this application the court finds that
the applicant has
failed to set up the legal and evidential basis for
reviewing and setting aside the certificate in terms of s 7(2) of the
CPA.
The certificate stands.
The
Summons
[28]
The
applicant challenges the issuing of the summons on formal, procedural
and substantive grounds.
[32]
They are:
a)
The
summons was not issued in the name of the private prosecutor.
[33]
b)
The
summons does not describe the private prosecutor with certainty and
precision.
[34]
c)
The
summons is not signed.
[35]
d)
The
summons was issued before the private prosecutor produced the
certificate to the clerk.
[36]
e)
The
summons was issued before the private prosecutor deposited with the
Magistrates Court, Durban an amount determined by that court
as
security for the costs which may be incurred in respect of the
applicant’s defence to the charge.
[37]
f)
The
summons was issued without the private prosecutor proving some
substantial and peculiar interest in the issue of the trial arising
out of some injury that he individually suffered in consequence of
the commission of the offence.
[38]
[29]
The first three grounds attack the private
prosecutor’s non-compliance with the formalities of a validly
issued summons. The
latter three grounds attack the private
prosecutor’s non-compliance with the jurisdictional
requirements for a private prosecution.
Sections 7 and 9 prescribe
these jurisdictional prerequisites that must exist before the clerk
issues a summons. Whether a private
prosecutor has a substantial and
peculiar interest and has suffered an injury personally as a result
of the offence is not only
the most important substantive statutory
prerequisite for a private prosecution but also the crux of the
dispute between the parties.
Without it the private prosecution
collapses altogether. I will return to the jurisdictional
requirements after disposing of the
formal procedural challenges.
Procedural
challenges to summons
[30]
Constitutionally
established under s 179 of the Constitution the prosecuting
authority’s importance in the administration
of justice is
entrenched. It has the potential to trench on rights in the Bill of
Rights. Subsection 2 entrenches its power
to institute criminal
proceedings on behalf of the State. Foreshadowed in subsection 3 is
national legislation to detail the implementation
of the exercise by
the prosecuting authority of its powers and its functions. National
legislation prescribes its obligations when
a person seeks a private
prosecution. The statutory requirements for a private prosecution in
s 7 seek to avoid frivolous and vexatious
prosecutions for the same
reasons discussed above that public prosecutors may decline to
prosecute. Usually they must be adhered
to strictly to ensure a fair
trial. A criminal prosecution, private or public, has consequences
potentially invasive and destructive
of an accused’s
substantive rights to, amongst other things, personal freedom and
security and the rights to a fair trial,
of which the right to be
informed of one’s accuser
[39]
and the nature of the accusations
[40]
are paramount. As a general proposition the obligation to provide an
accused with the name, description and signature of the private
prosecutor would be fundamental to the rights of an accused to a fair
trial, not least because the CPA prescribes them.
[31]
Section 10 of the CPA provides:
‘
10.
Private prosecution in name of private prosecutor
(1)
A private prosecution shall be instituted
and conducted and all process in connection therewith issued in the
name of the private
prosecutor.
(2)
The indictment, charge-sheet or summons, as
the case may be, shall describe the private prosecutor with certainty
and precision
and shall, except in the case of a body referred to in
section 8, be signed by such prosecutor or his legal representative’
[32]
Manifestly, the name, description and
signature of the private prosecutor must be evident from the summons.
The use of the word
‘shall’ in s 10(1) and 10(2) is
imperative and peremptory. Reasons for such statutory prescription
becomes obvious
with reference to s 35 of the Constitution and
s 20
of the
National Prosecuting Authority Act 32 of 1998
. Section 35 of
the Constitution lists the rights of everyone who is arrested for
allegedly committing an offence, who is detained
and who is an
accused person facing a trial. The right to fair trial in subsection
3 of the Constitution includes the rights to
be informed of the
charge with sufficient detail to answer it.
[33]
The face of the summons does not disclose
who the prosecutor is but that it is a private prosecution. The only
reference to private
prosecution and the identity of the private
prosecutor emerges in an addendum to the charge sheet. Neither the
charge sheet nor
the addendum to it provides any description of the
private prosecutor. Given that the parties knew each other these
defects in
the summons are not fatal, notwithstanding the
peremptoriness of s 10. Besides, the non-compliance can be cured with
a request
for further particulars.
[34]
The private prosecutor concedes that he did
not sign the summons but contends that this was not a material
defect. The signature
to the charge sheet could be a material
requirement. Without it a private prosecutor could disassociate
himself from the prosecution
e.g. if an applicant sued for malicious
prosecution. The signature indicates that the process is valid,
serious and that the accused’s
attendance in court is
required. An accused may justifiably ignore an unsigned summons
resulting in inconvence to the court
and the administration of
justice. However the private prosecutor’s failure to issue and
serve a signed summons can be remedied
by him signing and having it
re-served on the applicant. This defect too is not fatal in the
circumstances of this case.
Production
of Certificate
[35]
Did the private prosecutor lodge a
certificate when he lodged his summons for issue by the clerk?
Section 7(2)(a) of the CPA
states:
‘
No
private prosecutor under this section shall obtain the process of any
court for summoning any person to answer any charge unless
such
private prosecutor produces to the officer authorized by law to issue
such process a certificate signed by the attorney-general
that he has
seen the statements or affidavits on which the charge is based and
that he declines to prosecute at the instance of
the State.’
[36]
Manifestly, production of the certificate
is a peremptory statutory prerequisite for a private prosecution.
[37]
On 21 November 2012 the applicant received
the summons directing him to appear in ‘U’ Regional Court
Durban. At his
first appearance on 12 December 2012 he established
that the private prosecutor had not lodged a certificate with the
clerk when
issuing the summons.
[38]
When the hearing commenced in the regional
court on 24 June 2013 the applicant’s counsel invited the
private prosecutor to
disclose the process he had followed in having
the summons issued against the applicant. The legality of the process
was already
in issue. His counsel declined to provide the information
despite the fact that his client bore the onus of proving that he had
complied with all the jurisdictional prerequisites for a private
prosecution.
[39]
The
private prosecutor bore the onus of proving that he had lodged the
certificate with the clerk when he sought to have his summons
issued
against the applicant. In rebuttal the applicant filed an affidavit
by the clerk of the court denying any knowledge of the
summons in the
case against the applicant.
[41]
The
private prosecutor’s defence that the clerk would never have
issued the summons without seeing the certificate is speculation.
To
discharge his obligation all he had to do was produce the certificate
bearing the clerk’s stamp. If he had a stamped certificate
he
would
have
produced it. Clearly he did not have it. He would have ensured that
the certificate bore the clerk’s stamp if he was
mindful that
lodging the certificate was a statutory requirement in terms of s
7(2)(b). He was unable and refused to produce a
certificate stamped
by the clerk or some other proof that he had lodged the certificate
prior to or simultaneously with having
the summons issued.
[40]
The private prosecutor’s failure to
lodge the certificate is non-complainace with a jurisdictional
requirement amounting to
a material defect in the private prosecution
of the applicant.
Security
Deposit
[41]
Did the private prosecutor deposit security
with the court? At his appearance on 12 December 2012 the
applicant established
that the private prosecutor had not deposited
any amount as security for costs as required under s 9(1)(b) of the
CPA. His attorney
agreed with the attorney for the private prosecutor
that the latter would secure an amount of R90 000 privately for
costs.
The applicant persisted that the private prosecutor had to
lodge security in the magistrate’s court prior to issuing a
summons,
with that court determining the amount of the security for
costs.
[42]
Again failing to appreciate his statutory
obligation the private prosecutor vented that by their agreement the
applicant had waived
this statutory provision which was permissible.
Haranguing on that the applicant was making a mockery of his own
agreement, thus
demonstrating how desperate he was to avoid the
merits of the prosecution at all costs, the private prosecutor
irrelevantly questioned
how the applicant had ascertained that
security had not been determined by the court and that the moneys had
not been paid into
court.
[43]
If
the private prosecutor had obtained a determination by the court and
paid the moneys into the court before issuing the summons
as he was
statutorily obliged to there would have been no need for any extra
curial agreement between the attorneys after the summons
had been
issued. Correspondence commencing on 24 January 2013 and continuing
until 8 April 2013 illustrate the negotiations between
the attorneys
to settle the amount of the security for costs. Finally reserving all
the applicant’s rights his attorney accepted
an undertaking
that the funds would be retained in the trust account of the private
prosecutor’s attorney.
[42]
[44]
On the facts the private prosecutor failed
to lodge security as prescribed in s
9(1)(b) of the CPA. The negotiations between the attorneys was a
stopgap measure to safeguard
the interests of the applicant who would
otherwise have no security at all.
[45]
The
private prosecutor’s failure to lodge security in the
magistrate’s court is non-compliance with a jurisdictional
requirement amounting to a material defect in the private prosecution
of the applicant.
[43]
Substantial
and peculiar interest and injury
[46]
What is the meaning of substantial and
peculiar interest in the context of s 7(1) which provides as follows?
‘
7.
Private prosecution on certificate
nolle
prosequi
(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 provisions 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. ‘
[47]
The
Concise Oxford English Dictionary defines ‘substantial’
to mean ‘
of
considerable
importance
,
size
,
or
worth
’
.
[44]
‘
[S]ubstantial’
occurs in many statutes. It is unhelpful to suggest as counsel for
the applicant did that ‘substantial’
means the same as it
does in ‘substantial and compelling circumstances’ to
avoid the imposition of a prescribed minimum
sentence. ‘Substantial’
must garner its meaning from the particular context in which it is
used. In the context of
s 7
‘substantial’ must refer to
the interest being such as to be capable of resulting in a
conviction. A public prosecution
will not commence or continue unless
a conviction is possible.
[45]
There is no rational basis for setting a different threshold for a
private prosecution.
[46]
Irrespective of whether the prosecution is public or private, for a
fair trial an accused cannot be expected to mount any defence
other
than to stave of a conviction. Anything else would amount to shifting
the goal posts in a private prosecution thus creating
uncertainty
about what standard an accused must meet. A standard that differs
between public and private prosecution and from one
private
prosecution to the next will not be a foundation for a fair trial.
[48]
Correlatively,
if the private prosecutor fails to prove that he has a substantial
interest then no private prosecution can ensue.
An example of an
insubstantial interest is, if the issue is
de
minimis
or frivolous and vexatious.
[47]
The
interest does not have to be of such a nature as to give rise to a
civil claim.
[48]
[49]
‘
Peculiar’
in the context could mean ‘unusual’, ‘abnormal’,
‘atypical’, ‘different’,
‘distinctive’
and ‘unique’, some of the meanings given in the
Thesaurus.
[49]
Reinforced by the words ‘private person’ and
‘individually suffered’, ‘peculiar’ must mean
‘unique’ in
s 7(1)(a).
The close personal relationships
for which private prosecutions are permitted in subsections (b) to
(d) bolster the uniqueness
and exclusivity of the private prosecutor
in subsection (a). Only private prosecutors in sub-sec (a) have to
prove the interest
and personal injury; for all other private
prosecutors in
s 7
their relationships to the victims qualify them.
[50]
In
Mullins
and
Meyer
v
Pearlman
the
full court of the TPD opined that the private prosecutor must show
actual damages suffered.
[50]
In
Ellis
v Visser
the
full court in the TPD opined in 1953 that ‘injury …must
be construed in its legal sense’
[51]
to
mean ‘an invasion of a legal right’,
[52]
‘
an
actionable injury’.
[53]
If
all that the private prosecutor can say ‘amounts to little more
than that ‘his feelings have been outraged and his
good name
injured,’
it
should be interpreted restrictively.
[54]
If the private prosecutor has no civil remedy, if he has suffered no
actionable wrong then he has no title to prosecute, even if
he has
suffered prejudice.
[55]
Furthermore 'interest in the issue of the trial' means a direct
interest.’
[56]
If
the private prosecutor’s reputation has suffered there is no
assurance that it will not continue to suffer if the applicant
is
convicted.
[57]
[51]
On
the facts in
Ellis
v Visser
the
accused and the private prosecutor were members of a trade union
committee responsible for procuring a property for the union.
The
accused fraudulently obtained the private proscutor’s consent
to proceed with a purchase that a commission of enquiry
subsequently
found was tainted by secrecy and corruption.
[58]
[52]
Twenty-seven years later the TPD
differently constituted in
Makhanya v
Bailey
and confronting a different set
of facts but the same legal question concluded:
‘
(W)here
it is clear that a legal right of a person is infringed by an
offence of this nature, or any nature, then the question
of a civil
remedy arising from it is no longer a relevant consideration and that
the provisions of
s 7
(1)
(a)
would then be satisfied.’
[59]
And
‘
The
question of whether a civil remedy which sounds in money, or any
other civil remedy would exist, is irrelevant in my view.’
[60]
On
the facts the private prosecutor was an employee who alleged that her
employer committed an offence under s 25 of the Wage Act
5 of 1957 by
victimising and dismissing her for her trade union membership.
[61]
[53]
Respectfully
the later opinion should prevail regarding the relevance of a civil
remedy. As the private prosecutor bears the onus
of proving that he
has met all the requirements for a private prosecution he has to show
that he has a substantial and peculiar
interest and that he
‘individually’ suffered some injury personally as a
consequence of the commission of the offence.
[62]
There must be a causal connection between the injury he suffered and
the offence.
[63]
These prerequisites found a private prosecutor’s
locus
standi
to
prosecute. As such they must exist when the summons is issued. The
private prosecutor must be ready to prove his interest and
injury at
any stage once he decides to cause a summons to be issued. Nothing in
s 7 calls for a more restrictive meaning than the
text itself. Having
a civil or any other remedy is not a requirement under s 7. That the
private prosecutor must have ‘individually
suffered’ must
mean nothing less than having actually suffered an injury. A person
whose feelings and good name are injured
has the right to prosecute
privately if he actaullay suffers an injury. It should be obvious or
at least prima facie the charges
when the summons is issued that the
private prosecutor meets all the requirements of s 7.
[54]
Usually
an accused would raise non-compliance with the jurisdictional
requirements under s 106(1)(h) of the CPA as a plea to the
prosecution’s lack of title to prosecute.
[64]
As jurisdictional prerequisites and matters of standing,
non-compliance can be raised at any stage of the prosecution. The
court may determine the issue of title in limine or after hearing
evidence. However, a decision to deny a private prosecutor the
right
to prosecute should be taken cautiously not least because it
implicates the right to access to the court under s 34 of the
Constitution. If he meets all the requirements for a private
prosecution under the CPA and the right to prosecute is not
hit by
the limitation in s 36, the private prosecution should be allowed to
proceed. Regretably neither party raised this vital
constitutional
question.
[55]
Surving
since its origins in the Cape Ordinance 40 of 1828, a creature of
statute and not the common law,
[65]
s
7 jealously guards the state’s right to prosecute in criminal
matters.
Section
7 offers a safety valve for the prosecution of crimes in which the
public prosecutor has declined to prosecute but in which
an
individual who has suffered an injury arising from the offence has a
substantial, personal, private, individual and exclusive
interest.
Countervailingly it balances the interests of an accused by
protecting him from private prosecutions from all and sundry
who have
the means, time and inclination to prosecute but not a substantial
and peculiar interest. It also aims
‘
to
curb, in other words, the activities of those who would otherwise
constitute themselves public busybodies.'.
[66]
[56]
The CPA does not prescribe the form of
summons for a private prosecution. However, the clerk must be
satisfied that the private
prosecutor complies with the requirement
in s 7(1)(a) in that he has some substantial and peculiar interest in
the trial and the
personal injury he suffered arising from the
commission of the offence which he seeks to prosecute. Usually the
interest and injury
would be apparent from the nature of the charges.
Given the low level discretion the clerk would exercise when issuing
a summons,
the charges could prima facie present as meeting the
interest and injury requisites. However, it would be open to an
accused to
challenge the private prosecutor’s purported
compliance with s 7(1)(a) from the outset.
[57]
In count 1 the private prosecutor alleges
that the applicant exerted improper pressure on Eugene Ramnarayan ‘in
an attempt
to secure an affidavit’ from the latter stating that
he witnessed the private prosecutor tampering with the access control
mechanism to a property in La Lucia. Subsequently the applicant
induced Mr Ramnarayan to depose to such an affidavit. The applicant
relied on this affidavit in litigation concerning an insurance claim
in the High Court. Arising from count 1, count 2 relates to
making a
false declaration knowing it to be false in contravention of the
Justice of the Peace and Commissioners of Oaths Act,
1963. The charge
of defeating the ends of justice in count 3 relates to the applicant
obstructing the course of justice. The private
prosecutor alleges
that the applicant tendered, referred to and relied on an unsigned
and corroborating affidavit of Johnathan
Perumal, another witness on
the list of witnesses, knowing that Mr Perumal sought to corroborate
Mr Ramnarayan’s affidavit
which the applicant knew was false.
Neither Messrs Perumal nor Ramnarayan are co-accused in the private
prosecution.
[58]
The
background to the charges were the following: The applicant on behalf
of Aon, his erstwhile employer allegedly procured the
false testimony
in an application for a spoliation order against the private
prosecutor’s company. As a substantial property
owner with
tenants such as Toyota South Africa and Delta Motors South Africa the
damage to his good name and reputation is allegedly
incalculable. He
would not be able to face his tenants if they believed that he
surreptitiously and clandestinely broke into his
own property. The
applicant procured false evidence that the private prosecutor was on
the property at a time when the closed circuit
television evidence
clearly demonstrated that he only attended hours later.
[67]
So it was alleged.
[59]
Without
any information about the spoliation order the court may reasonably
infer that the private prosecutor is saddled with the
spoliation
order that he did not challenge successfully or at all on the grounds
that it was improperly obtained with false evidence.
If his version
is demonstrably true as the closed circuit television evidence would
allegedly show he fails to attest to why his
version was not before
the court hearing the spoliation order. If he presented his version
fully in the spoliation proceedings
and the court hearing that matter
erred or misdirected itself then the applicant’s remedy lies in
an appeal.
[68]
On appeal s 19(b) and (c) of the Superior Courts Act allows him to
introduce new evidence.
[69]
[60]
Although
he has another remedy that is no reason to deny him his right to also
privately prosecute the applicant on criminal charges
if he meets all
the jurisdictional requirements.
[70]
However, the applicant also has rights as an accused under s 35 of
the Constitution irrespective of whether he is prosecuted privately
or publicly. The first right implicated in this instance is the right
to have the trial commence and conclude without unreasonable
delay.
[71]
[61]
The
DPP issued the certificate only after a protracted attempt to
prosecute the applicant.
[72]
The
applicant was arrested on 31 December 2009 on charges of defeating
the ends of justice and making false statements. He appeared
in the
district court, Durban on various occasions incurring substantial
legal costs which were paid by Aon and costs to his health.
Notwithstanding the passage of more than two and a half years the
public prosecutor withdrew the charges against him on 28 August
2012
by direction of the DPP issued on 2 July 2012. If the evidence
against the applicant was sufficient the prosecution would
have been
done and dusted without the delay of two and a half years let alone
it ending with the prosecutor withdrawing the charges.
The reasons
for the delay will become aparent.
[62]
A
list of witnesses apparently attached to the charge sheet feature
names that also appear in the addendum to the charge sheet in
the
private prosecution. One would expect to see statements or affidavits
from the witnesses attached to the pleadings as documents
that ought
to have served before the DPP. There are no such statements. On 7
August 2012 the prosecutor called for the names of
witnesses and
their statements.
[73]
The following day the private prosector declined to supply them
saying through his attorneys that he was not aware of any law that
required him to submit such information but nevertheless advised that
he would rely on nothing more than the witnesses and the
statements
already in the prosecutor’s docket.
[74]
[63]
The
public prosecutors were frustrated ‘in trying to close the
apparent gaps in the matter through further investigation’.
[75]
They had ‘some … reservations linked to a successful
prosecution’. Having regard to the charges the private
prosecutor should have been able to produce the evidence such as the
closed circuit television recordings which were allegedly
decisive.
Correspondence from the private prosecutor’s legal team to the
prosecuting authority continued throughout the public
prosecution.
Notwithstanding, the public prosecution failed.
[64]
One of the reasons the public prosecution
might have failed is because of insufficient evidence to sustain a
prosecution not least
because the private prosecutor as the
complainant in that prosecution refused to give the DPP the
information she asked for. Considering
that the alleged offences
occurred in mid-May 2009 the prospect of procuring such information
let alone proving the charges would
have become more remote with the
passing of each day. It is now 6 years since the alleged offences
were committed.
[65]
On the charges Mr Ramnarayan would be the
main witness for the prosecution. If Mr Ramnarayan was
previously induced to testify
falsely the private prosecutor would
have a hard row to hoe to persuade a court that this time around Mr
Ramnarayan was being truthful.
[66]
Notwithstanding
the fact that direct imprisonment may be imposed
[76]
the offences are trivial in comparison to murder, robbery and
rape which fall in the jurisdiction of the regional court.
Predictably, therefore, the public prosecution proceeded in the
district court. By filing in the regional court the private
prosecutor seeks to elevate the seriousness of the matter
unjustifiably for reasons best know to himself, and at unnecessary
costs
to the administration of justice.
[67]
As for any personal injury he may have or
is likely to suffer, in the cut and thrust of the modern business
world allegations and
counter allegations are made by and about
business men and women. Litigating over minor offences is not the
core activity of successful
people in business. The private
prosecutor has not adduced any evidence that his reputation has
actually suffered a setback. With
the passage of 6 years since the
offences were allegedly committed, there should be some evidence of
injury if he had suffered
any. By reviving memories of his failed
spoliation case in a fresh round of litigation he risks injury
especially as he cannot
be sure of winning. Any prospects of
success he might have had have dissipated altogether as the spectre
of subjecting the
applicant to an unfair trial looms large, as will
emerge from the discussion below.
The
right to a fair trial
[68]
Every
accused without distinction has a constitutional right to a fair
trial. This right must apply equally to accused in public
and private
prosecutions. If it does not then the right to equality before the
law and to equal protection and benefit of the law
would be impugned.
Equality includes the full and equal enjoyment of all rights and
freedoms.
[77]
A hallmark of a fair trial is the independence of the prosecutor who
must act without fear, favour or prejudice.
[78]
A prosecutor who does not exude these qualities cannot assure the
accused of a fair trial.
[79]
In the nature of a private prosecution it is a hard ask of a private
prosecutor to maintain the same degree of independence and
impartiality as a public prosecutor who is uninvolved personally in
the dispute. Not least for this reason and to overcome the
awkwardness
of
a private prosecutor also being a witness in his prosecution he
engages counsel.
[69]
Professionally trained to be impartial,
independent, objective and dispassionate, counsel should be able to
bring these qualities
to a private prosecution to ensure a fair
trial.
Counsel
having these qualities would be able to filter the emotion and
acrimony of the private prosecutor to focus dispassionately
on the
law and facts.
[70]
The
applicant turned to the DPP for her to produce the correspondence
exchanged with the private prosecutor. Arising from the
correspondence
the applicant contended that the private prosecutor’s
legal representatives improperly obtained the certificate from the
DPP. The private prosecutor’s bias evident in the
correspondence with the DPP obscures all prospects of an impartial,
objective
and fair prosecution of the applicant, the applicant
persisted.
[80]
[71]
Disconcertingly, senior counsel for the
private prosecutor involved himself personally in correspondence on
his letter head to the
DPP proclaiming by way of introduction as
follows:
‘
I
am a senior counsel based at the Durban Bar. I have also been an
acting judge for over 10 (ten) years and several of my stints
on the
bench have been in criminal sessions.’
[81]
Senior
counsel met the prosecuting authority at their offices in
Pietermaritzburg on 30 March 2011 following the private prosecutor’s
offer to assist in the criminal prosecution.
[82]
[72]
The
private prosecutor’s legal team comprising of his attorney and
junior and senior counsel held a watching brief over the
public
prosecution of the applicant.
[83]
They sought to persuade the DPP to engage senior counsel to prosecute
the matter at the complainant’s expense
‘
but
without the senior counsel being told the complainant was carrying
the costs’.
[84]
(
sic
)
The
attorney urged that the senior counsel to be engaged should not be
apprised
‘
of
the fact that the complainant is in fact carrying his or her charges…
the complainant would be amenable to entering into
a binding and
confidential agreement with the office of the director and of lodging
any and all monies necessary with the director’s
office before
senior counsel is briefed
’
.
[85]
Such
a request is so obviously unethical especially in a constitutional
democracy based on openness, accountability and transparency
in which
the prosecuting authority is constitutionally compelled to function
‘without fear, favour or prejudice’.
[86]
[73]
Eventually when pleadings had to be filed
in this application generous dozes of vitriol oozing from private
prosecutor’s affidavit
dispel any hope of a fair trial for the
applicant. Unembarrassed, the private prosecutor declared
himself to be a wealthy
man thus tainting his assertion that his
pursuit of the applicant arises from his quest for justice. That the
private prosecutor
is using his wealth to avenge the applicant’s
victory in the spoliation proceedings cannot be discounted. Dragging
the applicant,
a man who cannot afford to pay his legal costs,
through years of litigation, at costs to time, energy, expenses and
most importantly,
state resources are disproportionate to the alleged
offences. As an allegedly successful businessman the private
prosecutor should
realise from a cost-benefit analysis that the costs
of this litigation simply do not justify the benefits. There are
other cost
effective ways of clearing his name if it has been
tarnished.
[74]
Disappointingly his legal team has not
disuaded him from persisting with this debilitating excerise.
Indulging the private prosecutor
because he has the means to litigate
is grossly unfair and disproportionate to its impact on the public
purse, the allocation of
state resources and the administration of
justice. As a review of administrative decisions this case should
have proceeded before
a single judge sitting as a court of first
instance. The review or appeal from the magistrates’ court
would be superfluous
once this court sets aside the summons.
Furthermore a full bench of 2 judges would have sufficed to hear it.
The parties have had
the privilege of a full court of 3 judges.
Whatever representations counsel made to the erstwhile judge
president did not justify
the matter proceeding before a full court,
as they should have known.
[75]
I find that the private prosecutor has a
peculiar but not a substantial interest. He has also not shown that
he has suffered any
personal injury. He fails to discharge the onus
of proving that his alleged interest and injury are such that they
would result
in the conviction of the applicant.
Conclusion
[76]
To summarise, my findings are as follows:
i)
The certificate cannot be reviewed and set
aside.
ii)
The private prosecutor has failed to
satisfy the jurisdictional requirements for a valid private
prosecution by lodging with his
summons the certificate and proof of
payment of security for costs. He has neither shown that he has both
a substantial and peculiar
interest in the issues giving rising to
the trial nor that he has suffered an injury as a result of the
alleged offences.
iii)
The findings in the preceding paragraphs
lead to the further finding that the clerk should not have issued the
summons without the
certificate and the security for costs. Even if
the charges did present prima facie a substantial and peculiar
interest and injury
suffered this application proves otherwise.
Consequently the summons should be reviewed and set aside.
iv)
Against these substantive findings it
follows automatically and for completeness that the judgment of the
regional magistrate should
be set aside.
v)
Usually
costs in a private prosecution would be no different from a public
prosecution. That is the accused is not entitled to costs
if he is
acquitted
‘
save
where the appeal or the prosecution, as the case may be, was
unfounded and vexatious’
.
[87]
This
is not the prosecution but an application to stop it. Nevertheless
the conduct of the parties leading up to this application
is
relevant. By prosecuting in the regional court a matter that deserved
the attention of no higher a court than the magistrates’
court,
by doing so with out complying with the elementary statutory
prerequisites of lodging a
nolle
certificate and security for costs, despite having the privilege of a
legal team of no less than 3 lawyers is an abuse of process
and state
resources. Although these are grounds for imposing a punitive cost
order, the applicant has not been prudent and strategic.
He failed to
comply with PAJA timeously, which might have stalled the private
prosecution commencing at all. Moreover the applicant
has not asked
for a punitive costs order.
The
order
a)
The application to review and set aside the
certificate of
nolle prosequi
is dismissed.
b)
The summons issued by the clerk of ‘U’
Regional Magistrates’ Court is reviewed and set aside.
c)
The ruling of the regional magistrate of
‘U’ Regional Magistrates’ Court is set aside.
d)
The private prosecutor, Niemesh Singh,
shall pay the applicant’s costs.
__________________________
D
Pillay J
I
agree :
___________________________
T
Sishi J
I
agree:
__________________________
B
Mnguni J
It
is so ordered.
APPEARANCES
Counsel
for the applicant: GP Scheltema SC
Instructed
by : Carl van der Merwe & Associates
Tel:
031 304 9303/4
Fax:
031 306 8428
Ref:
CV/DM/AS/CRIM.
c/o
Mason
Inc.
Tel:
(033) 3454230
Fax:
(033) 394 1795
Ref:
Mr P.K Coetzee
Counsel
for the second: O Moosa SC, C Edy
respondents
Instructed
by : Pather & Pather Attorneys
Tel:
(031) 304 42 12/3
Fax:
(031) 304 4208
Ref:
SIVI PATHER/rg/U36
[1]
Section 14 (1) of the superior Courts Act 10 of 2013. Nevertheless
the Judge President, inter alia, has discretion to direct
that a
matter be heard by a court consisting of not more than three judges.
[2]
Uniform
Rule 53 read with PAJA Rule 8 in Rules of Procedure for
Judicial Review of Administrative Action published by Government
Notice R. 966 of 9 October 2009 in Government Gazette No. 32622.
[3]
Section
14(3)
Superior Courts Act 10 of 2013
read with
ss1
and
83
of
Magistrates’ Courts Act 32 of 1944
.
[4]
Section
16(1)(a)
of the
Superior Courts Act.
[5
]
See
e.g the reference to ‘full bench’ constituted under
s 14
of the
Superior Courts Act 10 of 2013
in
Ronald
Bobroff & Partners Inc v De La Guerre
2014
(3) SA 134
(CC) 134 para 3;
De
La Guerre v Ronald Bobroff & Partners Inc and Others
(22645/2011) [2013] ZAGPPHC 33 (13 February 2013.)
[6]
14.
Manner of arriving at decisions by Divisions.—(1) (a) Save as
provided for in this Act or any other law, a court of
a Division
must be constituted before a single judge when sitting as a court of
first instance for the hearing of any civil matter,
but the Judge
President or, in the absence of both the Judge President and the
Deputy Judge President, the senior available judge,
may at any time
direct that any matter be heard by a court consisting of not more
than
three
judges
,
as he or she may determine.
(b)
A single judge of a Division may, in consultation with the Judge
President or, in the absence of both the Judge President
and the
Deputy Judge President, the senior available judge, at any time
discontinue the hearing of any civil matter which is
being heard
before him or her and refer it for hearing to the
full
court
of that Division as
contemplated in
paragraph (a)
.’
(my underlining)
[7]
They
are : ‘ (a) absence of jurisdiction on the part of
the court;
(b) interest in the
cause, bias, malice or corruption on the part of the presiding
office;
(c) gross
irregularity in the proceedings; and
(d) the admission
of inadmissible or incompetent evidence or the rejection of
admissible or competent evidence.’
[8]
Section
7(1)(b).
[9]
South
African Police Service v Solidarity OBO Barnard
2014
(6) SA 123
(CC) paras 94 and 141.
[10]
Bato
Star Fishing Ltd v Minister of Environmental Affairs and Others
[2004] ZACC 15
;
2004
(4) SA 490
(CC) paras 43-49;
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008
(2) SA 24
(CC) paras 107-110.
[11]
Section
7(1)(a) of the CPA.
[12]
Para
12.1 and 59 of the founding affidavit.
[13]
Para
61 of the founding affidavit.
[14]
Para
62 of the founding affidavit.
[15]
Ellis
V Visser
1954
(2) SA 431
(T) 434E-F:‘The private party concerned must show
(1) some substantial and peculiar interest, (2) in the issue of the
trial,
(3) arising out of some injury, (4) which he individually has
suffered by the commission of the offence.’
[16]
Du
Toit et al
Commentary
on the
Criminal Procedure Act
1-57.
[17
]
Read as Director of Public Prosecutions.
[18]
[zRPz]
Singh
v Minister Of Justice And Constitutional Development And Another
2009
(1) SACR 87
(N) at 92F
[19]
Du
Toit 1-57.
[20]
Section
13
of the CPA.
[21]
Section
7(2)(3)
of the CPA.
[22]
Solomon
v
Magistrate,
Pretoria
1950 (3) SA 603
(T); Du Toit 1-57.
[23]
Van
Deven
ter
v
Reichenberg
and
Another
1996 (1) SACR 119
( C ) at 128B-C; Du Toit 1-58
[24]
S
v
Shaik
and
Others
[2007] ZACC 19
;
2008 (1) SACR 1
(CC) at 33.
[25]
Du
Toit 1-38.
[26]
Du
Toit 1-36.
[27]
S
v Visagie
2009
(2)SACR 70 (W).
[28]
Van
Zyl ‘Pre-Trial Detention in South Africa: Trial and Error’
in von Kempen (ed)
Pre-Trial
Detention: Human Rights, Criminal Procedure Law and Penitentiary Law
Comparative Law
(2012) 661 at 692.
[29]
Du
Toit 1-39
[30]
Du
Toit 1-37;
Ryan
v
Petru
s
2010
(1) SACR 274 (ECG) at 281F–G.
[31]
See item 3.A. of the Prosecution Policy.
[32]
Para
12 of the founding affidavit.
[33]
Section
10(1)
of the CPA.
[34]
Section
10(1)
of the CPA.
[35]
Section
10(2)
of the CPA.
[36]
Section
7(2)(a)
of the CPA.
[37]
Section
9(1)(b)
of the CPA.
[38]
Section
7(1)(a)
of the CPA.
[39]
S
v Stefaans
1999
(1) SACR 182
(C) at 188A.
[40]
S
v Essop
2014
(2) SACR 495
(KZP) para 12.
[41]
Annexure ADN7 page 154 of the pleadings.
[42]
Annexure PP1-PP4 pages 92 – 97 of the pleadings.
[43]
Van
Deventer v
Reichenberg
and
Another
1996 (1) SACR 119
(C) at 128I-129D
[44]
(2011)
12
th
ed.
[45]
See item 3.A. of the Prosecution Policy.
[46]
Ellis
V Visser
1954
(2) SA 431
(T) at 436D-E;
[47]
Van
Deven
ter
v
Reichenberg
and
Another
1996 (1) SACR 119
(C) at 125D and cases cited there.
[48]
Makhanya
v
Bailey
NO
1980 (4) SA 713
(T);
Mullins
and
Meyer
v
Pearlman
1917 TPD 639
and
Ellis
v
Visser
1954 (2) SA 431
(T) which were wrongly decided.
[49]
www.thesaurus.com.
[50]
Mullins
and
Meyer
v
Pearlman
1917
TPD 639
at 640
[51]
Ellis
V Visser
1954
(2) SA 431
(T) at 436F-G.
[52]
Ellis
V Visser
1954
(2) SA 431
(T) at 43D-E.
[53]
Ellis
V Visser
1954
(2) SA 431
(T) at 438B-C.
[54]
Ellis
V Visser
1954
(2) SA 431
(T) at 437E-G, and cases cited there.
[55]
Ellis
V Visser
1954
(2) SA 431
(T) at 437C-D and cases cited there.
[56]
Ellis
V Visser
1954
(2) SA 431
(T) at 437G-H.
[57]
Ellis
V Visser
1954
(2) SA 431
(T) at 437H.
[58]
Ellis
V Visser
1954
(2) SA 431
(T) at 433E-4E.
[59]
Makhanya
v Bailey No
1980
(4) SA 713
(T) at 717C;
[60]
Makhanya
v Bailey No
1980
(4) SA 713
(T) at 718A;
[61]
Makhanya
v Bailey No
1980
(4) SA 713
(T) at 715A-6A;
[62]
Du
Toit 1-56;
Singh
v
Minister
of
Justice and
Constitutional
Development
and
Another
2009
(1) SACR 87
(N) at 94;
Mweuhanga
v
Cabinet
of
Interim
Government of South West Africa and
Others
1989
(1) SA 976
(SWA) at 982F in which a wife had an interest in the
prosecution of soldiers who allegedly killed her husband; Du Toit
1-57.
[63]
Phillips
v
Botha
1999 (1) SACR 1
(SCA) at 9F
[64]
[zRPz]
Makhanya
v Bailey No
1980
(4) SA 713
(T) at 714H-I; Du Toit 1-56.
[65]
Mullins
and
Meyer
v
Pearlman
1917
TPD 639
at 642
[66]
Van
Deven
ter
v
Reichenberg
and
Another
1996 (1) SACR 119
(C) at 127G
[67]
para
95 of the answering affidavit
[68]
Van
Deven
ter
v
Reichenberg
and
Another
1996 (1) SACR 119
(C) at 126A-C
[69]
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others
[2004] ZACC 20
;
2005
(2) SA 359
(CC),
S
v Shaik and Others
[2007] ZACC 19
;
2008 (1) SACR 1
(CC) and
S
v Romer
2011
(2) SACR (SCA) paras 3-10.
[70]
Solomon
v Magistrate, Pretoria, And Another
1950
(3) SA 603 (T)
[71]
Wild
and Another v Hoffert NO And Others
1998
(3) SA 695 (CC).
[72]
Para
14–17 of the founding affidavit.
[73]
Annexure PP20 page 138 of the pleadings.
[74]
Annexure PP21 page 142 of the pleadings.
[75]
Annexure PP8 page 117 of the pleadings.
[76]
S
v W
1995
(1) SACR 606
(A);
S
v Andhee
1996
(1) SACR 419 (A).
[77]
Section 9(1) and (2) of the Constitution.
[78]
S
v Van Der Westhuizen
2011
(2) SACR 26
(SCA) and see also
s 32(2)(a)
of the
National
Prosecuting Authority Act with
regards to oath and affirmation.
[79]
Du Toit 1-48;
Bonugli
and Another v Deputy National Director
of
Public Prosecutions
and
Others
2010
(2) SACR 134
(T) at 142I-J.
[80]
Para 39 of the founding affidavit.
[81]
Annexure PPS page 100 of the pleadings.
[82]
Annexure PP8 page 116 of the pleadings.
[83]
Annexure PP6 page 104 of the pleadings.
[84]
Annexure PP6 page 105 of the pleadings.
[85]
Page 108 of the pleadings.
[86]
Section 179(4) of the Constitution.
[87]
Ellis
V Visser
1954
(2) SA 431
(T) at 441D-F.