Prosecute or we will! Is the single prosecuting authority under threat?

October 1st, 2018
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By Clement Marumoagae

This article evaluates circumstances under which private organisations can institute private prosecutions in South Africa (SA), using AfriForum as a case study.

Section 179 of the Constitution provides that ‘[t]here is a single national prosecuting authority in the Republic, structured in terms of an Act of Parliament’. This presupposes that only the National Prosecuting Authority (NPA) has the power to prosecute alleged criminals. However, the Criminal Procedure Act 51 of 1977 (CPA) does allow for instances where persons other than the NPA can institute private prosecutions. ‘In South African law there are three categories of private prosecutions: private prosecutions by individuals on the basis of a certificate nolle prosequi … private prosecutions by statutory bodies; and private prosecutions conferred on individuals by certain legislation’ (Jamil Ddamulira Mujuzi ‘Private prosecutions and discrimination against juristic persons in South Africa: A comment on National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development and Another’ (2015) 15(2) AHRLJ 580 at 582). Section 7(1) of the CPA provides four instances where persons other than the NPA can privately prosecute in SA. This section specifically provides that:

‘In any case in which a Director of Public Prosecutions declines to prosecute for an alleged offence –

(a) any private person who proves some substantial and peculiar interest in the issue of the trial arising out of some injury which he individually suffered in consequence of the commission of the said offence;

(b) a husband, if the said offence was committed in respect of his wife;

(c) the wife or child or, if there is no wife or child, any of the next of kin of any deceased person, if the death of such person is alleged to have been caused by the said offence; or

(d) the legal guardian or curator of a minor or lunatic, if the said offence was committed against his ward, may, subject to the provisions of section 9 and section 59(2) of the Child Justice Act, [75 of 2008], either in person or by a legal representative, institute and conduct a prosecution in respect of such offence in any court competent to try that offence.’

Only persons identified in s 7 can institute private prosecutions when the NPA has declined to prosecute and has granted a certificate nolle prosequi, which is basically a declaration that the NPA will no longer pursue the case against the accused. Initially, there was confusion as to whether the phrase ‘any private person’ included both natural and juristic persons. However, in 1990, Barclays Zimbabwe Nominees (PVT) Ltd v Black [1990] 2 All SA 576 (A) at 580 clarified that s 7 applies only to natural persons. In particular, the court held that ‘[n]or does the wider context of the Act read as a whole contain any indication that the Legislature intended that those words should include an artificial person such as a company’. The word company should be read to include non-governmental organisations, which style themselves as champions of civil rights and constitutionalism in SA.

It is public record that AfriForum has established a private prosecution unit. Discussing the prospects of this unit, Mujuzi argues that:

‘[I]t would first have to challenge the constitutionality of section 7 of the Criminal Procedure Act and argue that it unfairly discriminates against juristic persons and is therefore contrary to section 9 of the Constitution. The Constitutional Court declined to deal with this argument in the NSPCA’s [National Society for the Prevention of Cruelty to Animals] case. If AfriForum is successful on this front, it will be able to institute private prosecutions when offences are committed against it (when it is the victim of crime)’ or ‘AfriForum may offer legal support to victims of crime who have a right to institute private prosecutions under section 7 of the Criminal Procedure Act. In this case, their lawyers could offer free legal representation to a victim of crime. Private prosecutions are very expensive and this would be a big aid (of course, in the case of a conviction the private prosecutor may get his money back from the offender or from the Department of Justice) (Jamil Mujuzi ‘What the law says about AfriForum’s private prosecutions unit’ (www.news24.com, accessed 29-8-2018)).

Nonetheless, as the law stands, it appears that AfriForum can only initiate private prosecutions if it purports to assist any of the persons listed in s 7. I submit that the existence of established private prosecution units may directly or indirectly interfere with the constitutional mandate of the NPA by unduly pressurising it to make prosecutorial decisions on the basis that should it fail to prosecute, then such institutions will be readily available to prosecute. I further submit that this interferes with the NPA’s mandate of prosecuting without fear, favour and prejudice, despite the challenges faced by the NPA. What is needed is to strengthen the NPA in order to execute its mandate fairly and effectively and not to have civil rights institutions readily available to prosecute if and when the NPA declines to do so.

It is possible for any interested party to challenge the NPA’s decision either to prosecute or refuse to prosecute. For example, in National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development and Another (Corruption Watch as amicus curiae) 2017 (4) BCLR 517 (CC), the NSPCA challenged the constitutionality of s 7(1) of the CPA, because it wished to institute private prosecutions pursuant to the NPA not only refusing to prosecute a matter regarding a ritual involving the slaughtering of camels, but also declining to issue the certificate nolle prosequi. The NPA’s response was that ‘NSPCA could not prosecute under section 7(1)(a) of the CPA as it is a juristic person and not a natural person, as required by the section’ (para 7). The NSPCA argued that there was no rational basis for treating juristic persons differently to natural persons for the purposes of private prosecutions under s 7 of the CPA (para 10). The Constitutional Court (CC) refused to deal with whether or not s 7(1) was unconstitutional and opted to resolve the matter by looking at the statute that established the NSPCA, which provides:

‘In order to perform its functions and to achieve the objects of the Council the board may –

(e) defend legal proceedings instituted against the Councils and institute legal proceedings connected with its functions, including such proceedings in an appropriate court of law or prohibit the commission by any person of a particular kind of cruelty to animals, and assist a society in connection with such proceedings against or by it’ (s 6(2)(e) of the Societies for the Prevention of Cruelty to Animals Act 169 of 1993).

The NSPCA is specifically established by legislation to perform specific functions and it is empowered to legislatively institute legal proceedings – not for its own benefit – but in its fight against animal cruelty. As such, while the above provision did not expressly provide it with the right to institute criminal prosecutions, it was nonetheless, wide enough to be read in such a way, which enabled the NSPCA to institute statutory private prosecutions against people who perpetuate cruelty against animals in terms of s 8 of the CPA. Thus, at para 65, the CC formally ‘declared that the National Society for the Prevention of Cruelty to Animals has the statutory power of private prosecution conferred upon it by section 6(2)(e) of the Societies for the Prevention of Cruelty to Animals Act 169 of 1993 read with section 8 of the Criminal Procedure Act 51 of 1977’.

The right to institute statutory private prosecutions is well-established in SA. For example, s 46A of the Attorneys Act 53 of 1979 provides that: ‘The board of control may, by any person authorised thereto in writing by the chairperson, and upon written notice to the society of the province concerned, institute a private prosecution for the misappropriation or theft of property or trust money, and the provisions of section 8 of the [CPA], and any other law relating to private prosecutions shall apply to such prosecution as if the board of control is a public body’. Equally so, s 33(1)(a) – (b) of the National Environmental Management Act 107 of 1998 provides that: ‘(1) Any person may –

(a) in the public interest; or

(b) in the interest of the protection of the environment, institute and conduct a prosecution in respect of any breach or threatened breach of any duty, other than a public duty resting on an organ of state, in any national or provincial legislation or municipal by-law, or any regulation, licence, permission or authorisation issued in terms of such legislation, where that duty is concerned with the protection of the environment and the breach of that duty is an offence’. Unlike, the NSPCA and other institutions, which are legislatively empowered to institute private prosecutions, organisations such as AfriForum do not enjoy that privilege.

The problems surrounding the NPA, which range from failure to prosecute, selective prosecution and political interference are well-documented. These are problems, which may justify organisations, such as AfriForum, establishing their own prosecution units in order to ensure that justice is fairly distributed and everyone who does wrong is brought to book more particularly where the NPA refuses to prosecute. However, such an initiative – no matter how well intentioned – is also vulnerable to an accusation of targeting opponents of such organisations. For instance, AfriForum can be accused of not showing interest in the alleged corruption relating to Steinhoff International and only focussing on well-known public figures (Iavan Pijoos ‘PPF to lay criminal charges against Steinhoff’s Markus Jooste’ (www.news24.com, accessed 29-8-2018)). The AfriForum unit has also announced its intention to institute private prosecution against –

In all these instances, AfriForum’s message to the NPA has always been: Prosecute or we will. On its website, AfriForum stated that: ‘Gerrie Nel, Head of AfriForum’s Private Prosecuting Unit, will privately prosecute Julius Malema and co-accused for fraud and tender corruption should the National Prosecuting Authority (NPA) not yield to AfriForum’s demand that the case against Malema, regarding the then [alleged] corrupt activities of the company On-Point Engineering in Limpopo, be reinstated’ (Marie Greeff ‘Gerrie Nel and AfriForum plan to privately prosecute Malema for corruption’ (www.afriforum.co.za, accessed 29-8-2018)). With regard to the Julius Malema case, AfriForum, on its website, makes it clear that it is the complainant in the matter, in that it laid a charge against Mr Malema at the Brooklyn police station in Pretoria on 24 July 2011 (Greeff (op cit)).

Since AfriForum is a juristic person, the legal question is: On what basis is it instituting private prosecution against Mr Malema? This organisation does not fit any of the descriptions under s 7, neither can it rely on s 8 of the CPA because there is no statute, which empowers it to institute private prosecutions. This is a clear illustration of the unwarranted pressure that such organisations seek to place on the NPA, which has a potential of interfering with its work. In order to protect SA’s democracy, it is ideal that there should be a single prosecuting authority. The establishment of parallel prosecuting authorities has the potential to lead to anarchy wherein political opponents might be targeted for self-serving interests. Another real danger of these parallel institutions if not properly handled, is that they have the potential of raising racial tensions in the country. I submit that our courts should be extra vigilant and guard against being used as tools, which will effectively and constitutionally create parallel prosecuting authorities in SA.

Clement Marumoagae LLB LLM (Wits) LLM (NWU) Dip Insolvency Practice (UP) is an attorney at Marumoagae Attorneys and Senior Lecturer at the University of Witwatersrand.

Mr Marumoagae writes in his personal capacity.

This article was first published in De Rebus in 2018 (Oct) DR 34.

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