Makhanya v Bailey NO

• Jurisdiction: South Africa
• Judge: Le Roux J and Kruger AJ
• Judgment Date: 06 June 1980
• Court: Transvaal Provincial Division
• Hearing Date: 06 June 1980
• Citation: 1980 (4) SA 713 (T)

Le Roux, J.:

This is an appeal from a magistrate's judgment in which he held, inter alia, that the prosecutor in a private prosecution had not

Le Roux J

shown a sufficiently substantial or peculiar interest to institute and continue the prosecution of the accused in terms of s 7 of the Criminal Procedure Act 51 of 1977. The section in question reads as follows:

"(1)

A In any case in which an Attorney-General declines to prosecute for an alleged offence:

(a)

any private person who proves some substantial and peculiar interest n the issue of the trial arising out of some injury which he individually suffered in consequence of the commission of the said offence"

(ss (b), (c) and (d) are not relevant)

B "may subject to the provisions of s 9 either in person or by legal representative institute and conduct a prosecution in respect of such offence in any court competent to try that offence.

(2) (a)

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 authorised by law to issue such process a certificate signed by C 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."

Section 9, to which reference is made, provides simply for the payment of R100 as security that he will prosecute the charge and security for costs in the event of his having to pay the accused's costs.

D The first requirement of the section has clearly been complied with according to the papers and the Attorney-General has given his nolle prosequi in this particular case.

At the inception of the trial the charge sheet against the accused alleged or made the following allegations: the company, which was the accused, was E represented initially by a certain Vercueil, and the name was subsequently changed to that of William S Bailey as the representative of the company SAG Ceramics (Pty) Ltd, the accused in this case. It is alleged that this accused had contravened s 25 (c), read with ss 32 and 34 (10), of the Wage Act 5 of 1957 in that, on or about 11 August 1978, and at the factory F premises of the said SAG Ceramics (Pty) Ltd in the district of Boksburg, a certain Mrs Rinke and a certain Mr Jonker, alternatively one or more of them, in the exercise of their powers or the performance of their duties or, in furthering or endeavouring to further the interests of the said SAG Ceramics (Pty) Ltd, did wrongfully and unlawfully dismiss one Angel Makhanya, an employee of the said SAG Ceramics (Pty) Ltd within the G meaning of the Wage Act, by reason of the fact that they or one or more of them suspected or believed that the said Angel Makhanya belonged or had belonged to any trade union or any other organisation of employees, the object of which was to protect or further the interests of employees in relation to their employers, or to have taken part outside ordinary H working hours, in the formation of lawful activities of any such union or organisation.

When the matter was called in the magistrate's court, Boksburg, both parties were represented by attorneys and the accused, through its legal representative, pleaded, in terms of s 106 (h) of the Criminal Procedure Act, that the prosecutor had no title to prosecute. It appears from the address of the attorney that this plea was intended to place in issue the peculiar and substantial interest referred to in s 7 (1) (a) of the Act which is required for private prosecutors before they can institute and continue with the prosecution. I may add that before us today Mr De Jager who

Le Roux J

appeared on behalf of the respondent, also raised the question of a power of attorney which he alleges was lacking, but, after the document which A purports to be a power of attorney was shown to him, he withdrew this argument.

The only question which then arose in the court a quo was whether the interest required in terms of s 7 (1) (a) had been established by the private prosecutor. Initially in the court a quo the proceedings took the form of a legal argument, and the attorney for the accused relied on an allegation that proof had to be produced once it...