National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development and Another

• Jurisdiction: South Africa
• Judge: Maya DP, Petse JA, Saldulker JA, Mbha JA and Van der Merwe AJA
• Judgment Date: 04 December 2015
• Citation: 2016 (1) SACR 308 (SCA)
• Docket Number: 20781/2014 [2015 ZASCA 206]
• Hearing Date: 19 November 2015
• Counsel: K Hopkins (with S Freese and L Nkoana) for the appellant. L Montsho-Moloisane SC (with VD Mtsweni) for the respondents.
• Court: Supreme Court of Appeal

Saldulker JA (Maya DP, Petse JA, Mbha JA and Van der Merwe AJA H 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 I 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 J

Saldulker JA (Maya DP, Petse JA, Mbha JA and Van der Merwe AJA concurring)

A (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.

B [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:

•

Determining, controlling and co-ordinating the policies and standards of societies, in order to promote uniformity;

•

C preventing the ill treatment of animals by promoting their good treatment by man;

•

taking cognisance of the application of laws affecting animals and societies and making representations in connection therewith to the appropriate authority; and

•

D 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 E 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 Animals Protection Act 71 of 1962 (the Animals Protection Act) be a society for the prevention of cruelty to animals. The Animals Protection Act criminalises certain acts of cruelty to animals. The duties, powers and functions of the F appellant are set out in s 6 of the SPCA Act, which include the appointment of suitably qualified persons as inspectors, and conferring upon inspectors certain functions and powers which the appellant may deem necessary, including the power to enter premises, and search and seize animals, material, substances or other articles on such premises.

G [4] The Minister is charged with the administration of the CPA. 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 H s 179 of the Constitution. [3]

Saldulker JA (Maya DP, Petse JA, Mbha JA and Van der Merwe AJA concurring)

[5] The respondents did not oppose the appellant's application in the A 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 B

[6] The appellant seeks an order declaring s 7(1)(a) of the CPA unconstitutional. Its case is summarised as follows: section 7(1)(a) differentiates between natural persons on the one hand and juristic persons on the other. There is no good reason for differentiating between the two classes of person. As a result, the differentiation fails to serve a legitimate C 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 D 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. E

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 F religious ritual involving the 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 G 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 Animals 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 authorities H 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 was 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, I 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 J

Saldulker JA (Maya DP, Petse JA, Mbha JA and Van der Merwe AJA concurring)

A 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 B 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)

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, D 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. F

[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 G 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...