By Moshoeshoe Toba

The Judicial Matters Amendment Act 42 of 2013 came into effect in January this year. One of the amendments it effected was the insertion of s 46A into the Attorneys Act 53 of 1979 (the Attorneys Act). This new section confers powers of statutory prosecution on the Board of Control of the Attorneys Fidelity Fund (AFF) that, until this year, have been the preserve of the councils of the statutory provincial law societies.

In terms s 76 of the Attorneys Act:

‘Any society may, by any person authorised thereto in writing by his or her president, institute a prosecution for any offence in terms of this Act or of any regulation made thereunder, and the provisions of the laws relating to private prosecutions shall apply to such prosecution as if a society is a public body.’

The AFF never had the same powers as the law societies’ councils in terms of s 76. However, because of the escalating rate of claims paid year on year, the AFF deemed it fit to leverage on the prosecution of attorneys accused of theft of trust money as part of its risk mitigation tools. It did so by rebuilding and strengthening relations with strategic stakeholders in the law enforcement and criminal justice system, namely the National Prosecuting Authority (NPA) and its relevant business units, as well as the South African Police Service (SAPS) and its relevant units dealing with commercial crime. It also lobbied for legislative intervention in the form of the Judicial Matters Amendment Act as part of risk mitigation.

The operation of statutory prosecuting power contained in s 8 of the Criminal Procedure Act 51 of 1977 (CPA) has a direct bearing on the implementation of the new s 46A of the Attorneys Act.

The new s 46A acknowledges the following:

‘Notwithstanding the provisions of section 76, 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 Criminal Procedure Act, 1977 (Act No.51 of 1977), and any other law relating to private prosecutions shall apply to such prosecution as if the board of control is a public body.’

The CPA requires that all processes be issued in the name of the private prosecutor, and in the case of the AFF, the Board of Control assumes that title. In the lower courts, a charge sheet or summons must be used and in the higher courts, the indictment.

As regards security and costs by the private prosecutor, security applies only to private individuals in terms of s 7 of the CPA. The AFF, which is deemed a public body in terms of the new s 46B of Attorneys Act, is exempted. The various costs of the process which would necessarily be attributable to s 7 private prosecutions – ranging from fees prescribed under the rules of court for the service or execution; costs and expenses incurred for prosecution and appeal thereof; accused’s costs where the charge is dismissed or he or she is acquitted – are expressly excluded by the legislature in terms of the CPA. If the accused is found not guilty and discharged, the AFF will be exempt from punitive cost in terms of s 16 of the CPA.

There are many benefits in the process, if properly managed, to harmonise the stakeholder relations in the system. The approach which the AFF and NPA would adopt must be strategic by leaving key sensitive cases to the prosecuting authority. This will augment the already established relations which are based on cooperation, knowledge, skill and capacity building; deterrence to steal trust money; and ultimately the preservation of the AFF as the custodian of public funds in the broader social security system.

It is also worth noting that the insertion of s 46A in the Attorneys Act builds the foundation for the new dispensation envisaged in the Legal Practice Bill (LPB). A similar provision can be found in article 63(1)(i) of the LPB. The difference between s 46A of the Attorneys Act and art 63(1)(i) of the LPB is that no written notice needs to be served on the Legal Practice Council as is currently required with regard to the relevant provincial law society.

Moshoeshoe Toba BIur (Vista) LLB (University of the Free State) Cert in Forensic and Investigative Auditing (Unisa) is a non-practising attorney and Manager: Prosecutions at the Attorneys Fidelity Fund.

This article was first published in De Rebus in 2014 (Sept) DR 23.