Nundalal v Director of Public Prosecutions KZN

• Jurisdiction: South Africa
• Judge: D. Pillay J
• Judgment Date: 08 May 2015
• Docket Number: AR 723/2014
• Court: KwaZulu-Natal Division, Pietermaritzburg
• Hearing Date: 27 March 2015
• Citation: 2015 JDR 0876 (KZP)

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

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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.

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Reviews under PAJA

[5]

Bato Star Fishing (Pty) Ltd V Minister Of Environmental Affairs And Others 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

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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

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[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

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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

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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...