Solomon v Magistrate, Pretoria, and Another

• Judge: Roper J
• Judgment Date: 13 April 1950
• Court: Transvaal Provincial Division

A Roper, J.:

The applicant and the second respondent are attorneys of this Court and practised in partnership with one Wagner, under the style of Wagner, Clark and Solomon, until the 29th June, 1939, on which date the partnership was dissolved by the death of Wagner. During the course of the resulting liquidation disputes arose between the applicant and B the second respondent which were ultimately referred to arbitration. The arbitrators' award was delivered on the 14th October, 1947, and was made an order of Court on the 23rd October, 1947. Certain of the terms of the award will call for notice at a later stage; for the present it is I think sufficient to mention that it resulted in a considerable sum C being found to be owing by the second respondent to the partnership. The second respondent was ordered to pay five-eighths of the applicant's taxed costs and the applicant was ordered to pay three-eighths of the second respondent's taxed costs. When the award was made an order of Court Messrs. Davidson and Niemeyer, who had been engaged as accountants D to investigate the financial affairs of the partnership on the death of Wagner, and who had given evidence before the arbitrators, were appointed as liquidators of the partnership. The second respondent paid to the liquidators the sum of money which had been found to be due from E him, in or about December, 1947. The applicant's costs were set down for taxation on the 19th July, 1948, but on that date the second respondent applied for a postponement of the taxation, which eventually took place on or about the 6th August, 1948. The second respondent paid the proportion of the applicant's costs, which he had been ordered to pay, under threat of execution, on the 18th August, 1948. The second F respondent's bill of costs against the applicant was taxed on the 6th September, 1949, and was paid by the applicant on the 14th September, 1949. On some date which is not revealed in the affidavits, but G apparently in or about January, 1949, the second respondent appears to have lodged information with the Attorney-General or with the Criminal Investigation Department, tending to show that the applicant had rendered himself liable to prosecution for fraud in that he had fraudulently placed or caused to be placed before the arbitrators, certain false information relating to the partnership accounts and had thus obtained the arbitrators' award, on certain of the items in the accounts, in his favour. The Attorney-General was not prepared to H prosecute and on the 24th November, 1949, he issued to the second respondent a certificate in the following terms: -

'Rex v I. Solomon and W. Davidson.

In terms of sec. 17 of Act 31 of 1917 I, F.E.L., Attorney-General of the Transvaal Province, certify that I have seen the statements and affidavits on which the charge in the above action is based and I decline to prosecute at the public instance.'

Roper J

On the same date the second respondent as prosecutor took out a criminal summons in the magistrate's court, Pretoria, charging the applicant with fraud or falsitas on five counts. All of the matters which form the basis of these counts appear to have been brought before the arbitrators A and to have been covered by the award. The second respondent does not admit that this is so, in the case of some of them, but the contents of the affidavits filed on behalf of the applicant leave very little doubt in my mind that this was the case. Certain amounts owing as a result of the transactions which give rise to the various charges had been brought up in the liquidation account as debits against the partnership B and as far as I have been able to gather from the affidavits all of the items referred to were debated from one aspect or another. In some cases it seems clear that the second respondent disputed the correctness of the entries as debits against the partnership, contending that they C should be charged against the individual partners other than himself; in other cases it may be that only the correctness of the amounts was discussed. However that may be, all the items figured in the accounts and were covered by the award. Some of these will be referred to in more detail at a later stage.

D I may mention at this stage that since the lodging of the present application, the second respondent has given notice of amendment of his summons, and the matters which call for, and will receive, notice in due course will be those referred to in the amended document.

E On the 30th November, 1949, the applicant lodged a petition in which he prayed for an order interdicting the first respondent (the magistrate of Pretoria) from hearing the criminal action instituted against him by the second respondent and interdicting the second respondent from proceeding with the prosecution of the said action. The applicant and the second F respondent appeared in Chambers on that date before CLAYDEN, J., when the second respondent undertook to take the criminal prosecution off the roll of the magistrate's court pending the hearing of the application, and the application was postponed for the filing of the necessary G affidavits. The magistrate has filed no affidavits and does not appear to oppose the application. Affidavits have, however, been filed and opposition is offered to the application by the second respondent, to whom I shall refer hereafter as the respondent.

Sec. 14 of the Criminal Procedure and Evidence Act, 31 of 1917, provides that in cases where the Attorney-General declines to prosecute for an alleged offence, any private party who can show -

H 'some substantial and peculiar interest in the issue of the trial arising out of some injury which he individually has suffered by the commission of the offence' -

may institute a private prosecution.

The present application is based upon three main grounds: -

(1)

That the respondent has no interest such as is referred to in sec. 14, in that the arbitrators found against him on all the

Roper J

matters referred to in the various counts of the summons, and their award, being res judicata, is conclusive against his possession of any such interest.

(2)

A That the prosecution is inspired by personal malice and is unfounded and vexatious in the sense that it has no hope of success.

(3)

That the respondent elected to carry out the terms of the award and to take advantage of it in so far as it was in his favour, with B knowledge of the fact now relied upon as the basis of the prosecution, and has thus deprived himself of the right to bring the criminal proceedings.

At the outset of the hearing, Mr. Retief, for the respondent, took the point, in limine, that this Court had no jurisdiction to entertain the C application. He conceded that for the purpose of argument upon this point it must be assumed that the factual grounds upon which the application is based were true; in other words, that the respondent had no substantial and peculiar interest in the issue of the case, and that the proposed prosecution was unfounded and vexatious and inspired by the D indirect motives referred to in the petition. In support of his contentions, Mr. Retief referred to the provisions of Act 31 of 1917 which regulate the conduct of private prosecutions and in particular to the following sections: -

sec. 17, which obliges the Attorney-General, if he declines to prosecute E at the public instance, to grant the aggrieved private party a certificate to that effect, and which then entitles the private party to obtain the process of the Court for summoning the accused;

sec. 18, which refers to the 'right' to take proceedings which is conferred upon the private prosecutor by the Act;

F sec. 18, (b) which requires the private prosecutor to find security for the costs of the accused,

sec. 20, which provides that a private prosecution shall be subject to the provisions of the Act, and be proceeded with in the same manner as if it were being conducted at the public instance;

G sec. 23 (2) which authorises the Court to award costs to the accused where the prosecution is found to be unfounded and vexatious; and

sec. 157 (1) (g) which entitles the accused in a private prosecution to plead that the prosecutor has no title to prosecute, and so to raise the H issue that he has no such interest in the course of the trial as is required by sec. 14.

He maintained that under these provisions the grounds upon which this application was based were left to the determination of the Court in which the prosecution was laid, and fell to be decided in that Court after the hearing of evidence. The provisions referred to were intended to be exhaustive and they excluded the jurisdiction of this Court to intervene. I was unable to agree to this view,

Roper J

and accordingly overruled the preliminary objection, for these reasons -

I can find in the sections relied upon no evidence that the provisions relating to the costs of unfounded and vexatious prosecutions or the A title of the prosecutor to bring the proceedings, were intended by the Legislature to be exhaustive and to exclude any right to invoke the assistance of the Supreme Court, as the applicant now does. Mr. Retief maintained (I think in support of his contention that the provisions referred to were exhaustive) that under secs. 17 and 18 of the Act the B private party who had obtained the Attorney-General's certificate was given an absolute right to prosecute, of which he could not be deprived by the Court. No doubt the sections referred to do bestow a right to prosecute, subject to the necessary conditions, but I cannot take the view that that fact excludes the jurisdiction of the Court to interfere on proper cause. If Mr. Retief's contention were correct, this C Court would have no power to intervene even though it were shown in the clearest possible manner that the party who...