Singh v Minister of Justice and Constitutional Development and Another

• Jurisdiction: South Africa
• Citation: 2009 (1) SACR 87 (N)

Singh v Minister of Justice and Constitutional Development and Another
2009 (1) SACR 87 (N)

2009 (1) SACR p87

Citation	2009 (1) SACR 87 (N)
Case No	5072/05
Court	Natal Provincial Division
Judge	Hollis AJ
Heard	May 5, 2006
Judgment	May 5, 2006
Counsel	P Blomkamp for the applicant.; MJD Wallis SC for the respondents.

Flynote : Sleutelwoorde

Private prosecution — Locus standi of private prosecutor — Criminal Procedure I Act 51 of 1977, s 7(1) and (2) — Where s 7(2)(a) referring to 'private prosecutor under this section', clearly referring to category of persons defined in s 7(1)(a) — (d) — Where would-be private prosecutor not satisfying requirements of s 7(1)(a), public prosecutor not obliged to issue certificate nolle prosequi. J

2009 (1) SACR p88

A Private prosecution — Application for certificate nolle prosequi by private individual — Criminal Procedure Act 51 of 1977, s 7(1) and (2) — Necessary for applicant to deal pertinently with requirements of s 7(1)(a) concerning each offence in respect of which he wished to institute private prosecution — Applicant having to produce evidence of offences allegedly committed — B Having to prove substantial and peculiar interest in issue of trial — Having to prove that such interest arising out of some injury which he individually suffering, and that injury suffered in consequence of commission of alleged offences — Applicant's allegations falling far short in this regard and, accordingly, applicant failing to discharge onus of proving that he was private person as contemplated by s 7(1)(a).

Headnote : Kopnota

C The applicant had been expelled from his post in the Directorate of Special Operations and subsequently prosecuted on various counts arising from alleged offences committed by him in the course of his duties as an investigator. This prosecution failed, the trial court granting a permanent stay of prosecution on the grounds that the evidence against the applicant D had been obtained illegally. The applicant thereafter laid criminal charges against various persons who had instigated his prosecution. After a considerable delay by the National Director of Public Prosecutions in deciding whether or not to prosecute these persons, the applicant sought an order compelling the NDPP to make such a decision, to inform him of that decision and, in the event that the decision was not to prosecute, to issue a E certificate nolle prosequi. The NDPP subsequently decided not to prosecute and informed the applicant accordingly, leaving the court to deal with the question of whether or not the applicant was entitled to a certificate nolle prosequi.

Held, that a would-be private prosecutor had to meet the requirements of F s 7(1)(a) of the Criminal Procedure Act 51 of 1977. The provisions of s 7(2)(b), on which the applicant relied, had to be read in the context of the section as a whole, and not in isolation. Where s 7(2)(a) referred to a 'private prosecutor under this section' it was clearly referring to the category of persons defined in s 7(1)(a) - (d). In addition, the unrestricted meaning contended for by the applicant was inconsistent with the recognition that G private prosecutions were unusual and a departure from the basic law that criminal prosecutions must be conducted by a public prosecutor. Accordingly, the second respondent had not been obliged, simply by the provisions of s 7(2), to issue to the applicant a certificate nolle prosequi once he had declined to prosecute. (At and 92c-f and 93f.)

Held, further, as to whether or not the applicant's affidavit proved that he had H complied with the requirements of s 7(1)(a), that no express mention had been made by the applicant that he was a private person who fell within the ambit of s 7(1)(a). In addition, the affidavit was incomplete, as none of the annexures referred to therein had been attached; it was consequently quite impossible to assess the veracity of the allegations contained therein. It was also necessary for the applicant to have dealt pertinently with the requirements I of s 7(1)(a) concerning each offence in respect of which he wished to institute a private prosecution. Specifically, he had to produce evidence of the offences which the individuals whom he wished to prosecute had allegedly committed; he had to prove that he had a substantial and peculiar interest in the issue of the trial; that such interest arose out of some injury which he had individually suffered; and that the injury had been suffered in J consequence of the commission of the alleged offence. The applicant's

2009 (1) SACR p89

allegations had fallen far short in this regard and, accordingly, he had failed A to discharge the onus of proving that he was a private person falling within the ambit of s 7(1)(a). (At 94d-95e.)

Application dismissed with costs.

Annotations:

Cases cited

Reported cases

Attorney-General v Van der Merwe and Bornman 1946 OPD 197: dictum at 201 applied B

Cooper and Others NNO v Syfrets Trust Ltd2001 (1) SA 122 (SCA): dictum at 133C - E applied

Fourie v Resident Magistrate of Worcester (1897) 14 SC 54: referred to C

Phillips v Botha1999 (2) SA 555 (SCA): dictum at 565G - I applied

Solomon v Magistrate, Pretoria, and Another 1950 (3) SA 603 (W): dictum at 607F - H applied.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, s 7(1) and (2): see Juta's Statutes D of South Africa 2007/8 vol 1 at 1-326.

Case Information

Application to compel a decision regarding prosecution and for the granting of a certificate nolle prosequi. The facts appear from the judgment of Hollis AJ. E

P Blomkamp for the applicant.

MJD Wallis SC for the respondents.

Judgment

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

2009 (1) SACR p90

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...