Phillips v Botha

• Jurisdiction: South Africa
• Citation: 1999 (2) SA 555 (SCA)

Phillips v Botha
1999 (2) SA 555 (SCA)

1999 (2) SA p555

Citation	1999 (2) SA 555 (SCA)
Case No	591/96
Court	Supreme Court of Appeal
Judge	Hefer JA, Hoexter JA, Howie JA, Schutz JA, Ngoepe AJA
Heard	November 2, 1998
Judgment	November 26, 1998
Counsel	PJ Olsen (with him D Phillips) for the appellant; BC Bredenkamp (with him MJ Schwartz) for the respondent

Flynote : Sleutelwoorde

Criminal procedure — The prosecution — Private prosecution — Locus standi of private prosecutor — Private prosecution instituted for fraud F committed in respect of cheques issued pursuant to gambling transaction to which prosecutor also party — Private prosecutor lacking locus standi on ground that any injury which he may have suffered not injury cognisable under s 7 of Criminal Procedure Act 51 of 1977 — Any G representation which accused may have made as to his own state of mind which induced prosecutor to accept cheques had been part and parcel of whole illegal transaction in which they had both been engaged — Prosecutor trying to found case in criminal law based on his own iniquity — In law he was not entitled to do so. H

Criminal procedure — The prosecution — Private prosecution — Locus standi of private prosecutor — When person's legal right infringed existence or otherwise of civil remedy not by itself determining question whether she or he has locus standi under s 7 of Criminal Procedure Act 51 of 1977.

Criminal procedure — The prosecution — Private prosecution — Locus standi of private prosecutor — If injury of which prosecutor complains I not one which falls within purview of s 7(1) of Criminal Procedure Act 51 of 1977, that finding destructive of existence on part of prosecutor of any 'substantial interest' in issue of trial — 'Interest' is one which 'arises out of' 'injury' — In absence of injury cognisable under s 7(1), there can be no room for any interest in issue of trial on part of private prosecutor. J

1999 (2) SA p556

Criminal procedure — Abuse of court process — Where court finds attempt to use machinery devised for better administration of justice for A ulterior purposes it is court's duty to prevent such abuse — That power to be exercised with great caution and only in clear case.

Headnote : Kopnota

The respondent had drawn a number of cheques in favour of the appellant in order to obtain credit from the appellant to B gamble at the appellant's casino. The respondent subsequently stopped payment on the cheques. After the respondent indicated to the appellant that he did not intend honouring the cheques, the appellant laid a charge of fraud against the respondent and, following the issuing of a certificate of nolle prosequi by the Attorney-General, instituted a private C prosecution against the respondent. Before and during the trial in a regional court the respondent approached the appellant with various settlement offers, which eventually far exceeded the value of the original cheques. The appellant refused the settlement offers, initially indicating that the respondent's offers would have to be higher in order for him to D consider them. During his testimony at the trial the appellant conceded that he might have considered a high enough offer, but that he also wished to teach the respondent a lesson. The respondent was discharged at the end of the prosecution's case, on the basis that the appellant lacked the locus standi required by s 7 of the Criminal Procedure Act 51 of 1977 ('the Act') to institute the private prosecution, in that the appellant lacked locus standi in terms of s 7 if he did E not have a civil remedy. A subsequent appeal by the appellant to a Local Division was dismissed. In an appeal to the Supreme Court of Appeal the Court meru motu raised the question whether the private prosecution had not amounted to an abuse of criminal process.

Held, that, where the Court found an attempt to use machinery devised for the better administration of justice for ulterior F purposes, it was the Court's duty to prevent such abuse. That power, however, was to be exercised with great caution and only in a clear case. (At 565G/H—H.)

Held, further, that, in casu, the question was whether the private prosecution of the respondent was either instituted or thereafter conducted by the appellant for some collateral and improper purpose, such as extortion of money, rather than with the object of having criminal justice done to an offender. (At 565H/I—I.) G

Held, further, that, although the appellant had waged a punitive campaign against the respondent and had resorted to unsavoury conduct, it was not possible to conclude that in prosecuting the respondent the appellant's dominant motive was one of extortion or oppression rather than having justice done to a wrongdoer. (At 566A/B—D.) H

Held, further, that, when a person's legal right had been infringed, the existence or otherwise of a civil remedy did not by itself determine the question whether she or he had locus standi under s 7 of the Act. (At 566F.)

Held, further, that the appellant lacked locus standi as a private prosecutor on the ground that any injury which he may have suffered was not an injury cognisable under s 7 of the Act. Any representation which the respondent may have I made as to his own state of mind which induced the appellant to accept his cheques had been part and parcel of the whole illegal transaction in which they had both been engaged. The appellant was trying to found a case in criminal law based on his own iniquity. In law he was not entitled to do so. (At 566H—567B.)

Held, further, that, if the injury of which the appellant complained was not one which fell within the purview of s 7(1) of the Act, that finding must at once J

1999 (2) SA p557

be destructive of the existence on the part of the appellant of any 'substantial interest' in the issue of the trial, because A 'interest' was one which, in terms of the subsection, 'arises out of' the 'injury'. In the absence of an injury cognisable under s 7(1) of the Act there could be no room for any interest (substantial and peculiar or otherwise) in the issue of the trial on the part of the private prosecutor. (At 567B/C—D.)

The decision in the Witwatersrand Local Division in Phillips v Botha1995 (3) SA 948 (1995 (2) SACR 228) B confirmed.

Cases Considered

Annotations

Reported cases

Attorney-General v Van der Merwe and Bornman 1946 OPD 197: referred to

Ellis v Visser1954 (2) SA 431 (T): referred to C

Hudson v Hudson and Another1927 AD 259: followed

Levy v Benatar 1987 (4) SA 693 (ZS): referred to

Makhanya v Bailey NO1980 (4) SA 713 (T): referred to

Mullins and Meyer v Pearlman 1917 TPD 639: distinguished

Phillips v Botha1995 (3) SA 948 (W) (1995 (2) SACR 228): confirmed on appeal D

Solomon v Magistrate, Pretoria, and Another1950 (3) SA 603 (T): dictum at 607G—H followed

Varawa v Howard Smith Co Ltd(1911) 13 CLR 35: dictum at 91 applied.

Statutes Considered

Statutes

The Criminal Procedure Act 51 of 1977, s 7: see Juta's Statutes of South Africa 1997 vol 1 at 2-240—2-241. E

Case Information

Appeal from a decision in the Witwatersrand Local Division (M J Strydom J and Heher J), reported at 1995 (3) SA 948 (W) (1995 (2) SACR 228). The facts appear from the reasons for judgment.

P J Olsen SC (with him D Phillips) for the appellant. F

B C Bredenkamp SC (with him M J Schwartz) for the respondent.

In addition to the authorities cited in the judgment of the Court, counsel for the parties referred to the following authorities:

AK Entertainments CC v Minister of Law and Order and Another1994 (1) SACR 362 (E) G

A-Team Drankwinkel BK en 'n Ander v Botha en 'n Ander NNO1994 (1) SA 1 (A) at 11C

Barclays Zimbabwe Nominees (Pvt) Ltd v Black1990 (4) SA 720 (A) at 722G—I, 726D—G

Commissioner for Inland Revenue v Insolvent Estate Botha t/a Trio Kulture1990 (2) SA 548 (A) at 556F H

Dependable Aluminium Windows and Doors CC v Antioniades1993 (2) SA 49 (N)

Halsey and Others v Jones1962 (3) SA 484 (A) at 419C—H

Hunt v Hoare 1 SC 379

Jones v John Barr & Co (Pty) Ltd and Another1967 (3) SA 292 (W) at 299A and 300D—E I

Kroukamp v Buitendag1981 (1) SA 606 (W) at 610E—611E

Mweuhanga v Cabinet of the Interim Government of South West Africa and Others 1989 (1) SA 967 (SWA) at 983B—984A

Nichol v Burger1990 (1) SA 231 (C) at 236B—G

R v Ndaba 1942 OPD 149 at 153 J

1999 (2) SA p558

S v Ebrahim1991 (2) SA 553 (A) A

S v Joubert and Another1979 (4) SA 299 (T) at 300C

S v Van der Vyver1964 (3) SA 75 (T) at 76E—H

Shifidi v Administrator-General for South West Africa 1989 (4) SA 631 (SWA)

Yannakou v Apollo Club1974 (1) SA 614 (A) at 622A—F, 629. B

Christie The Law of Contract 3rd ed at 394

Hiemstra Suid-Afrikaanse Strafproses 5th ed at 229, 255

Hunt Criminal Law: General Principles vol 1 at 96

Snyman Strafreg 3rd ed. C

Cur adv vult.

Postea (November 26).

Judgment

Hoexter JA:

This is a civil appeal. The appellant is the owner of a casino in Rivonia. The respondent is an attorney in D Florida. Following upon the issue by the Attorney-General of the Witwatersrand of a certificate of nolle prosequi, the appellant in terms of s 7(1) of the Criminal Procedure Act 51 of 1977 ('the Act') instituted and conducted in the regional court for the Southern Transvaal division a private prosecution for fraud against respondent.

The respondent pleaded not guilty to the charge. The appellant himself and two other persons testified in support of the E charge. At the close of the prosecution's case counsel for the respondent applied for the discharge of his client. The application was granted and the respondent was found not guilty and discharged. Against the order of the regional court the appellant appealed unsuccessfully to the Witwatersrand Local Division. The judgment of the Court a...