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[1990] ZASCA 92
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Barclays Zimbabwe Nominees (Pvt) Ltd. v Black (2438/88) [1990] ZASCA 92; 1990 (4) SA 720 (AD); [1990] 2 All SA 576 (A) (14 September 1990)
Case No 186/89
/wlb
SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the appeal between:
BARCLAYS ZIMBABWE NOMINEES (PRIVATE)
LIMITED
Appellant
and
CHARLES JONATHAN BLACK
Respondent
CORAM
: BOTHA, MILNE, F H GROSSKOPF JJA et FRIEDMAN, NIENABER
AJJA
Date of Hearing
: 30 August 1990
Date of Judqment
: 14 September 1990
JUDGMENT
MILNE JA/
-1-
MILNE JA:
The question for decision in this case is whether a company is entitled to
bring a private prosecution. It arose in the following
circumstances. The
Attorney-General for the Witwatersrand Local Division declined to prosecute the
respondent on certain charges
of fraud and perjury and issued a certificate to
that effect in terms of
section 7(2)(a)
of the
Criminal Procedure Act, No 51 of
1977
. The appellant, a company incorporated in Zimbabwe, then purported to
institute a prosecution against the respondent on such charges
in the Regional
Court in terms of
section 7(1)(a)
of that Act. The respondent gave due notice of
his intention to plead, in terms of
section 106(1)(h)
, that the appellant had no
title to prosecute. This plea was based on the contention that the appellant,
being a company, was not
a "private person" within the meaning of
-2-
section 7(1)(a).
The Regional Magistrate dismissed the plea without giving
any reasons. The trial then proceeded and the respondent was convicted
of fraud.
He appealed to the Witwatersrand Local Division against his conviction on the
ground that the magistrate had wrongly dismissed
the plea that the appellant had
no title to prosecute, and on the further ground that the evidence in any event
failed to establish
his guilt. The court
a quo
upheld the plea. Smit J
also held that, in any event, the guilt of the respondent had not been proved.
Schabort J however declined
to express a view on the merits of the conviction
because the issue had not been canvassed in argument. Leave to appeal was
granted
by the court
a quo
on the guestion of whether the appellant had,
in law, title to prosecute.
Section 7(1)
is in the following terms:
"In any case in which an attorney-general declines
-3-
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 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
, either in person or by a legal
representative, institute and conduct a prosecution in respect of such an
offence in any court competent
to try that
offence."
The Afrikaans version, which
is the signed
version, reads as follows:
"In 'n geval waar 'n prokureur-generaal weier om
weens 'n beweerde misdryf te vervolg, kan
-
(a) 'n private persoon wat by die
geskil in
-4-
die verhoor 'n wesenlike en besondere belang bewys wat uit benadeling
ontstaan wat hy persoonlik ten gevolge van die pleging van bedoelde
misdryf gely
het;
(b)
h eggenoot, indien bedoelde
misdryf ten opsigte van sy eggenote gepleeg is;
(c)
die eggenote of kind of, indien daar geen eggenote of kind is nie,
'n
naasbestaande van 'n oorledene, indien die
oorledene se dood na bewering deur bedoelde misdryf veroorsaak is; of
(d) die wettige voog of kurator van 'n
minderjarige
of kranksinnige, indien bedoelde misdryf teen sy pupil gepleeg is,
behoudens die bepalings van artikel 9, hetsy persoonlik of deur 'n
regsverteenwoordiger, 'n
vervolging ten opsigte van so 'n misdryf instel en voortsit in 'n hof wat
bevoeg is om daardie misdryf te bereg."
Mr
Rubens
for the appellant submitted that: (a) In terms of section
2(b) of the Interpretation Act No 33 of 1957, the word "person" in
section
7(1)(a)
of the
Criminal Procedure Act must
' be construed as including "any
company
-5-
incorporated or registered as such under any law" unless the context "otherwise
requires" or unless it was "otherwise provided".
(b) The context does not "otherwise" require nor is there anything in the
Criminal Procedure Act to
indicate that the provisions of the Interpretation Act
do not apply to it nor that the definition of "person" does not apply.
(c) There is no good reason in principle why a company should not be able to
conduct a private prosecution.
This is an attractive
argument but an analysis of the provisions of the
Criminal Procedure Act
satisfies
me that it cannot succeed.
I assume in favour of the appellant that, although
-6-
it was incorporated in Rhodesia (now Zimbabwe) and there is nothing to
indicate that it has been registered as an "external company"
in the Republic in
terms of the Companies Act, it is "a company incorporated ... as such under any
law" in terms of section 2 of
the Interpretation Act.
In elaborating his submissions summarized in para (b) above, Mr
Rubens
submitted that the legislature used the word "private" in section 7(1)(a) solely
to distinguish it from a public or official prosecution.
There is no definition
of the word "private" in the
Criminal Procedure Act or
in the Interpretation
Act. Counsel for the appellant submitted that there was no significance in the
use of the phrase "private person"
other than to contrast such a person with a
person holding public office or an official person. Indeed the Oxford Dictionary
(2nd
ed) Vol XII at p 515 defines "private", in the context "of a person", as
"not
-7-
holding public office or official position." Curiously enough, however, a
number of the illustrations provided by the learned editors
of the use of the
words in this sense and, in particular those from 1930 onwards, refer to
"private man" or "private individuals"
as if "private persons" were synonymous
with them. Definition 7a at p 518 moreover defines "private" as "of, pertaining
or relating
to, or affecting a person, of a small intimate body or group of
persons apart from the general community;
individual
, personal." (My
underlining). Quite apart from these considerations one must obviously read
section 7(1)(a) as a whole. It is not
any private person who may prosecute but
only one 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." The words "substantial
and peculiar
interest" make it quite clear that no official persón in his
-8-
capacity as such could prosecute under section 7(1).
In
Attorney-General v Van der Merwe & Bornman
1946 OPD 197
at
201 Van den Heever J said
"I do not think, therefore, that the expression 'substantial and peculiar
interest' [in section 14 of Act 31 of 1917 which is equivalent
to section 7(1)
of the present
Criminal Procedure Act] was
intended -as Mr Lutge suggested - to
convey only a pecuniary interest in respect of which the prosecutor may obtain
compensation
or restitution. The object of the phrase 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 word "private" in the phrase
"private persons" is not
there to prevent officials such as a public
prosecutor from
using its provisïons. That a public prosecutor would
seek
to do so seems, in any event, in the highest degree unlikely
bearing
in mind that in terms of
section 4
of the
Criminal
Procedure Act all
prosecutors derive their authority to
-9-
prosecute from the Attorney-General and we are, ex
hypothesi
,
considering a situation where the Attorney-General has issued a certificate to
the effect 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. The word
"private" in the phrase "any
private person" is, therefore, not used to
differentiate the persons there referred to from officials. As already mentioned
the word
"private" is perfectly capable of designating an "individual" and one
of the meanings of that word is "a single human being" - OXFORD
DICTIONARY (2nd
ed) Vol VII p 880 meaning 3a.
There are furthermore even more potent pointers to the fact that the
legislature intended to refer only to natural persons in
section 7(1)(a).
The
section refers to an injury which "he individually suffered". The Afrikaans
-10-
version, "wat hy persoonlik gely het", is the signed
version. I agree with
Smit J's remark in the judgment
a quo
that this "..is language peculiarly apposite in the case
of natural
persons" and, I might add, wholly inappropriate
to describe "benadeling" to a
company. One of the meanings
of the word "individually" is "personally" -
OXFORD
DICTIONARY
supra
at p 881 meaning 3. If one reads
"individually" as meaning "personally" then the meaning of
the English text accords exactly with the meaning of the
Afrikaans text.
In my view the Afrikaans text is referring
unambiguously to a private
individual, but if I am wrong
"... a reference to the other text is permissible whenever the text under
consideration is ambiguous. The Legislature obviously intends
both versions to
have exactly the same meaning and that intention is carried out if the ambiguity
in one text is resolved by reference
to the unambiguous words in the other
text."
per Hoexter JA in
Peter v Peter &
Others
1959(2) SA 347 (A)
at 350D. A further pointer to the intention of the
-11-
legislature, although it is a minor one, is the use of the word "he" in the
phrase "which he individually suffered". The use of the
word "hy" is perfectly
permissible in Afrikaans with reference to a company but it is certainly not
permissible usage to speak in
English of an injury which "he suffered" when
referring to a company.
Mr
Rubens
sought to rely upon the remarks of Watermeyer CJ in
Vanderbiil Park Health Committee & Others v Wilson & Others
1950(1) SA 447 (A) at 468, where he said that there was no compelling reason why
the word "individually" should be interpreted as
referring only to natural
persons. The section under consideration in that case is clearly
distinguishable. The court was there considering
the provisions of section 36(1)
of the Liquor Act, No 30 of 1928, which provided that
"... any person ordinarily resident within the
-12-
district either individúally or jointly with other persons so resident,
and any local authority within the district may lodge
... a written objection to
any application to be considered
The equivalent
words of the Afrikaans version were
"... mag iemand wat gewoonlik in die distrik woon, hetsy alleen of gesamentlik
met ander sodanige inwoners en enige plaaslike bestuur
in die distrik ... h
beswaarskrif indien teen h aanvraag ...".
There are
two clear points of distinction. In the first
place we are not here concerned
with a situation where the
statute simply refers to a "person". The word "person" does
not stand
alone. It is necessarily qualified by the word
which immediately precedes it.
What we have to decide is
what was meant by the words "private person" in the
context
of section 7. The second point of distinction is this. In
the
Vanderbiil Park
case the English version, which was the
signed version, referred to an objection "either
individually or jointly with other persons so resident" and
-13-
there was nothing in the Afrikaans version which conveyed any notion to the
contrary, the word "individually" being translated by
the word "alleen".
Furthermore, section 7(1) provides that any person referred to in (a),(b),(c) or
(d) may institute and conduct
a prosecution "... either in person or by a legal
representative" and it would, I think, be straining language to speak of a
company
instituting and conducting a prosecution "in person".
There, are other difficulties in applying the definition of "person" in
section 2 of the Interpretation Act to
section 7(1)(a)
of the
Criminal Procedure
Act. In
fact Mr
Rubens
conceded that the use of the word "private" in the
phrase "private person" precluded the inclusion of the classes of persons
referred
to in sub-para (a) of the definition of "person" in the Interpretation
Act, namely "any divisional council, municipal council, management
-14-
board, or like authority". That does not of course mean that the remainder of
the definition cannot be applied.
Durban Turf Club v Commissioner for Inland
Revenue
1949(3) SA 484 (A) at 491. If, however, one applies to section
7(1)(a) only that part of the definition of the word "person" which
includes a
company, the section will then read "any private person including any company
incorporated or registered as such under
any law, who proves" etc. Quite apart
from the linguistic awkwardness of using the pronoun "who" to refer to a
company, the question
would then arise as to whether the word "private" also
governs company.
Prima facie
it would, in which case the section would
apply only to private companies. This would create an anomaly since there would
seem to
be no reason in principle why a private company should be able to
prosecute and a public company should not.
-15-
I am accordingly satisfied that the context of the section itself requires
that the words "private person" should be interpreted as
meaning only a natural
person.
Nor does the wider context of the Act read as a whole contain any indication
that the legislature intended that those words should
include an artificial
person such as a company. The only other sections in which the words "private
person" occur are
sections 42
and
47
of the
Criminal Procedure Act, and
it was
rightly conceded that the context makes it clear that the private persons
referred to should be interpreted as referring only
to natural persons. In fact
such indications as there are in the
Criminal Procedure Act other
than
section 7
itself are against the appellant's contention. For example,
section 8(1)
provide
that:
"Any body upon which or person upon whom the right
-16-
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 such an offence."
Sub-section (2)
similarly distinguishes between "a body
which" or "a person who".
It seems clear that the reference in
section 8(1)
to "any pérson upon whom" and in
section 8(2)
to "a
person who"
is to natural persons and a clear distinction is drawn in those sub-sections
between natural persons and "any body". If
the appellant is correct in saying
that the word "person" includes a company and, in sections other than
section 7
also the other bodies referred to in section 2 of the Interpretation Act, why,
one may ask, did sections 8(1) and 8(2) not simply
refer to "any person"?
Some guidance may also be obtained from
-17-
section 10(2)
of the
Criminal Procedure Act which
provides
that
"The indictment, charge sheet or summons, as the case may be, shall describe the
private prosecutor with certainty and shall, except
in the case of a body
referred to in
section 8
, be signed by such prosecutor or his legal
representative."
The use of the pronoun "his" again
suggests a natural
person. The only exception made to the requirement that
the
charge is to be signed is "in the case of a body referred to
in
section 8".
One may speculate as to why it was thought
necessary in the case
of a prosecution by a body referred to
in
section 8
to exempt it from the
necessity to have the
charge signed by it or its legal representative.
Whatever
the reason may be, why, if the legislature intended a
company to
be able to prosecute privately, was a company
also not similarly
exempted?
Reliance was sought to be placed by
the
-18-
appellant's counsel upon the provisions of
section 10(3).
This provides that
"two or more persons shall not prosecute in the same charge except where two or
more persons had been injured
by the same offence." It was argued on behalf of
the appellant that this provision contained an indication that when the
legislature
referred to a person in
section 7(1)
it intended to refer to both
natural and artificial persons. The argument, as I understood it, proceeds thus:
section 10(3)
clearly qualifies
sections 7
and
8
; "person" in
section 8
includes
both natural and artificial persons; "persons" in
section 10(3)
must therefore
include both natural and artificial persons; it is unlikely that the legislature
would have intended that the word
"person" in
section 7
should have a different
meaning from the word "persons" in
section 10(3)..
There are several fallacies
in this argument. In the first place there is no difficulty in construing
section 7
so as to
-19-
refer only to natural persons,
section 8
as referring to a body or a natural
person upon whom a right to prosecute is expressly conferred by law and
section
10(3)
as referring to both such bodies and natural persons. Secondly, I think it
is clear from the context of
section 8(1)
that when it refers to a person it is
referring only to a natural person.
Reliance was also sought to be placed upon
the
provisions of section 426 of the Companies Act,
No 61 of
1973. Sub-section (1) of this section provides that
"If it appears in the course of the winding-up of a company and any past or
present director, member or officer of the company has
been guilty of an offence
for which he is criminally liable under this Act or, in relation to the company
or the creditors of the
company, under the common law the liguidator shall cause
all the facts known to him which appear to constitute the offence to be
laid
before the Attorney-General concerned and, if the said Attorney-General
certifies that he declines to prosecute, the liguidator
may, subject to the
provisions of sections 386(3) and (4), institute and conduct a private
prosecution in respect of
-20-
such offence." It was submitted that there was no reason why a liquidator
"who ordinarily exercises powers which formally resided
in the directors, should
be empowered to institute a private prosecution which the directors themselves
could not institute on behalf
of the company prior to its winding-up." This
submission is too widely stated. In respect of certain of their statutory powers
liquidators
do not stand in the place of the company. See
Visser en h Ander v
Rousseau en Andere N NO
1990(1) SA 139 (A) at 159G. While it may be correct
to say that when a liquidator performs the functions of the former board of
directors,
his acts are the acts of the company (as stated in
AMS Marketing
Co (Pty) Ltd v Holtzman & Ano
1983(3) SA 263 (W) at 269H), it is clear
that he also has certain duties to the creditors which the board of directors
would not
have had before liquidation. It may be that the legislature considered
that, as a matter of
-21-
policy, the liquidator should be given powers to act in their interest,
including the right of private prosecution (even of members
of the board), which
the board would not have had.
Finally, in considering the interpretation of
section 7(1) it is clear that one has to consider the object
as well as
the context of the enactment. See the
Durban
Turf Club
case
supra cit
at 491. In this regard I refer
again to the judgment of Van
den Heever J in
Attorney-
General v Van der Merwe & Bornman
supra cit
immediately
after the passage guoted above, where he went on to
say
"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
-22-
and a private prosecution affords a way of vindicating those imponderable
interests other than the violent and crude one of shooting
the
offender."
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, section 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
-23-
on behalf of the State. See
sections 2
and
3
of the
Criminal Procedure Act.
The
exceptions are firstly where a law expressly confers a right pf private
prosecution upon a particular body or person (these bodies
and persons being
referred to in
section 8(2))
and secondly, those persons referred to in
section
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.
In view of this conclusion it is not necessary to deal with the merits of the
conviction.
The appeal is accordingly dismissed with costs.
A J
MILNE BOTHA JA ]
NIENABER AJA ]