Singh v Minister of Justice and Constitutional Development and Another

• Jurisdiction: South Africa
• Judge: Hollis AJ
• Judgment Date: 05 May 2006
• Docket Number: 5072/05
• Hearing Date: 05 May 2006
• Counsel: P Blomkamp for the applicant. MJD Wallis SC for the respondents.
• Court: Natal Provincial Division

Hollis AJ:

When the application was launched on 18 August 2005 the applicant sought an order, inter alia, in the following terms: F

1.

That second respondent is ordered:

1.1

forthwith to consider the statements and documents contained in Pietermaritzburg Police Docket CAS 779/11/2003 and to make a decision in regard thereto as to whether any persons will be prosecuted in respect of the allegations contained therein, and if so, whom, and on what charges and in what Court such persons G will be arraigned;

1.2

immediately thereafter to inform Applicant's attorneys of what second respondent's decision is; and

1.3

in the event of second respondent's decision being to decline to prosecute any persons in respect of the allegations contained in the said police docket, forthwith to issue to applicant a certificate nolle H prosequi in terms of Section 7(1) of the Criminal Procedure Act, 51 of 1977.

On 17 October 2005 the respondents' attorneys advised the applicant's attorneys that they had received a letter from one JSM Henning SC who had signed it in his capacity as Deputy National Director of Public Prosecutions Head: National Prosecuting Service, which was in the I following terms:

In my capacity as the Head of the National Prosecuting Service, I perused all the statements, exhibits and related documents contained in South African Police Service docket, Pietermaritzburg (sic) CAS 779/11/2003. J

Hollis AJ

A In the light thereof, I have decided not to prosecute BT Ngcuka, P Sonn, WJ Downer, RC MacAdam and CRC Marion on any of the charges alleged in the said police docket.

The issue of granting a nolle prosequi certificate is under consideration.

In consequence of the aforegoing the applicant no longer seeks the relief B set out in paras 1.1 and 1.2 of the prayer and limits the relief to para 1.3 thereof.

The applicant contends that upon a proper construction of s 7(1) of the Criminal Procedure Act 51 of 1977 (hereinafter referred to as 'the Act') C he is entitled, as a result of the second respondent's decision not to prosecute any of the said persons, to receive from the second respondent a certificate nolle prosequi. He requires this certificate to institute a private prosecution in terms of the said s 7.

The applicant is an additional magistrate for the district of Pietermaritzburg. D He was the complainant in respect of various criminal charges that he laid in November 2003 and which were the subject of the police investigation in police docket Pietermaritzburg CAS 779/11/03. During 1999 he was seconded by the then Minister of Justice to the Investigating Directorate for Organised Crime and Public Safety in KwaZulu-Natal, referred to as IDOC in the founding affidavit. This unit later formed a E part of the Directorate of Special Operations which is now commonly known as the Scorpions. IDOC was requested to assist in the Richmond area where there had been a considerable amount of violence and unrest due to friction between various political factions. The unit of which the applicant was a member was headed by one Chris MacAdam. The F applicant was later expelled from the unit allegedly on the orders of the National Director of Public Prosecutions, one Bulelani Ncguka, on the ground that he had involved himself in a case that was not his concern. He was also expelled from IDOC. He was arrested and later charged with 12 counts, including four counts of defeating or obstructing the course of justice, three counts of unauthorised disclosure of G information, one count of making a false statement under oath, and the remaining counts relating to alleged contraventions of certain sections of the Protection of Information Act 84 of 1982, and of the Interception and Monitoring Prohibition Act 127 of 1992. The prosecution proceeded but failed when the trial court granted a permanent stay of the H proceedings, as the evidence against the applicant had been obtained illegally. Thereafter the applicant returned to his former position as a magistrate in the Pietermaritzburg court. The applicant has instituted a civil action claiming damages but felt sufficiently aggrieved at the treatment that he had received that he wants a criminal prosecution of I those persons who knowingly instigated and/or persisted with his prosecution. The applicant contends that the true state of affairs was known at the time by, inter alia, 'Ngcuka, MacAdam, Billy Downer (the prosecutor), Clifford Marion, a member of the unit, and also by the then head of the Scorpions, Percy Sonn'. The applicant laid criminal charges against these persons. The applicant claimed in his founding affidavit J that there has been a considerable delay by the second respondent in

Hollis AJ

deciding whether or not to prosecute, having regard to the fact that the A criminal charges were laid during November 2003.

The respondents oppose the application on the basis of questions of law and aver that the applicant's founding affidavit, read with the annexures thereto, lacks the necessary averments to bring it within the ambit of s 7(1)(a) of the Criminal Procedure Act 51 of 1977, in that he has failed B to prove:

(a)

that he has an interest in the issue of the trial;

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