PATEL JA:
This is a
matter on appeal from a decision of the High Court handed down on 19 October
2011. It concerns the powers of the Attorney-General, the respondent, in the
specific context of private prosecutions by corporate entities.
The factual
circumstances of this matter are common cause. In early 2010 four senior
employees of the appellant were charged with a massive fraud of about
US$1,700,000 perpetrated against the appellant. Because of the respondent's
position that there was overwhelming evidence against the accused persons, all
of them were initially denied bail. At a later stage, the charges against them
were withdrawn before plea following a directive by the respondent that there
was insufficient evidence to prosecute. Consequently, the appellant sought a
certificate nolle prosequi which was withheld and declined by the
respondent. The appellant then applied to the High Court on review for that
decision to be set aside as being both unlawful and grossly irrational.
The High Court held that a
private company, as distinct from a private individual, had no locus standi
to institute a private prosecution. The learned judge a quo adopted
and applied the position taken by the South African Appellate Division in
interpreting the equivalent statutory provisions in South Africa. He
accordingly decided that it was not necessary to determine the further question
as to the respondent's discretion to withhold his certificate.
The first
issue on appeal is whether or not a private company is entitled to bring a
private prosecution. The second issue, which is interrelated with the first, is
whether the respondent has the discretion to issue or withhold his certificate nolle
prosequi where he declines to prosecute at the public instance.
GOVERNING STATUTORY PROVISIONS
Part III of the Criminal Procedure and Evidence Act [Cap
9:07] (the CP&E Act) regulates the institution of private
prosecutions. Section 13 confers the right to prosecute in the following terms:
“In all cases where the
Attorney-General declines to prosecute for an alleged offence, any private
party, who can show 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 prosecute, in any court competent to try the
offence, the person alleged to have committed it.”
Persons other than those referred to in s 13 who are
entitled to prosecute are identified in s 14:
“The following shall possess the
right of prosecution –
(a) a husband, in respect of offences committed
against his wife;
(b) the legal guardians
or curators of minors or mentally disordered or defective persons, in respect
of offences committed against their wards;
(c) the wife or children
or, where there is no wife or child, any of the next-of-kin of any deceased
person, in respect of any offence by which the death of such person is alleged
to have been caused;
(d) public bodies and
persons on whom the right is specially conferred by statute, in respect of
particular offences.”
Section 16 deals with the grant of certificates nolle
prosequi by the Attorney-General and their production for the purpose of
criminal proceedings. It provides as follows:
“(1) Except as is provided by
subsection (2), it shall not be competent for any private party to obtain the
process of any court for summoning any party to answer any charge, unless such
private party produces to the officer authorised by law to issue such process a
certificate signed by the Attorney-General that he has seen the statements or
affidavits on which the charge is based and declines to prosecute at the public
instance, and in every case in which the Attorney-General declines to prosecute
he shall, at the request of the party intending to prosecute, grant the
certificate required.
(2) When the right of prosecution
referred to in this Part is possessed under any statute by any public body or
person in respect of particular offences, subsection (1) shall not apply.”
ORIGINS OF RIGHT OF PRIVATE PROSECUTION
Before
addressing the status of corporate entities in the prosecutorial context, it
seems necessary to delineate the historical background to private prosecutions
generally. As was recognised and restated in s 89 of the former Lancaster
House Constitution:
“Subject to the provisions of any
law for the time being in force in Zimbabwe relating to the application of
African customary law, the law to be administered by the Supreme Court, the
High Court and by any courts in Zimbabwe subordinate to the High Court shall be
the law in force in the Colony of the Cape of Good Hope on 10th June, 1891, as
modified by subsequent legislation having in Zimbabwe the force of law.”
According to
Dugard: South African Criminal Law and Procedure – Vol. IV Introduction to
Criminal Procedure (1977) at p. 19, the Roman-Dutch law of criminal
procedure and evidence remained in force at the Cape until the early 19th
century. Following various alterations to the structure of the courts in the
Cape, this adjectival law was radically anglicised by Ordinance No. 40 (1828)
and Ordinance No.72 (1830) to form the foundations of our modern law (ibid.
at p. 25). As regards the institution of prosecutions, the British Government
accepted that the conditions prevailing in the Cape did not permit the
unmodified adoption of the English system of private prosecution. Accordingly,
the right of prosecution was vested in the Attorney-General but, where he
declined to prosecute, a private individual might prosecute in respect of an
injury to himself or to someone under his care (ibid. at p. 25). In
principle, therefore, the law governing private prosecutions, both in Zimbabwe
and in South Africa, does not originate in the Roman-Dutch law but is derived
from the English common law.
In England, during
the 17th and 18th centuries, the system of criminal
procedure that prevailed was predominantly one of private prosecutions. No
public official was designated as a public prosecutor, either locally or
nationally, although the local justice of the peace sometimes assumed that
role. In essence, private citizens were responsible for preserving the peace
and maintaining law and order. Crimes were regarded as being committed not
against the State but against a particular individual or family. Thus, the prosecution
of almost all criminal offences was usually initiated and conducted by the
victim or his or her relative. The distinctive feature of the common law was
that it was not a privilege but the duty of the private citizen to preserve the
peace and bring offenders to justice. Consequently, no authority was vested in
the King to dictate if and when a private individual could institute criminal
proceedings. With the passage of time, King's attorneys were appointed to
intervene in matters of particular interest to the King or to initiate and
conduct prosecutions in his name. This led to the origin and evolution of the
so-called law officers of the Crown, vested with the specific function of
advising and litigating on behalf of the King.
The late 19th
century saw the passage of the Prosecution of Offences Act 1879 which first
introduced the office of Director of Public prosecutions. However, this Act did
not fundamentally undermine private prosecutions, because public prosecutors
enjoyed very limited authority. Again, the successor Act of 1908 did not
substantially increase the powers of public prosecutors. It was only with the
enactment of the Prosecution of Offences Act 1985 that England established an
effective system of public prosecution through the Crown Prosecution Service.
Even then, this Act continued to preserve a limited right of private
prosecution.
RIGHT OF PRIVATE COMPANY TO PROSECUTE
The above historical synopsis
demonstrates that the right of private prosecution originates in the reparation
of individual injuries and the vindication of individual as opposed to
corporate rights. The interests that the right to prosecute is conceived to
safeguard are manifold. They are certainly not confined to purely pecuniary
loss or the kind of injury that might ordinarily be sustained by corporate
entities in the normal course of their business. This rationale is aptly and
eloquently captured by Van den Heever AJP in Attorney-General v Van
der Merwe and Bornman 1946 OPD 197 at 201:
“Prosecution is not primarily
designed to recover compensation. I do not think, therefore, that the
expression “substantial and peculiar interest” was intended …. to convey only a
pecuniary interest in respect of which the prosecutor may obtain compensation or
restitution. The object of the phrase was clearly to prevent private persons
from arrogating to themselves the functions of a public prosecutor and
prosecuting in respect of offences which do not affect them in any different
degree than any other member of the public; to curb, in other words, the
activities of those who would otherwise constitute themselves public
busybodies.
The interest the legislature had
in mind may be pecuniary, but may also be such that it cannot sound in money –
such imponderable interests for example, as the chastity and reputation of a
daughter or ward, the inviolability of one's person or the persons of those
dear to us. Permission to prosecute in such circumstances was conceived as a
kind of safety-valve. An action for damages may be futile against a man of
straw and a private prosecution affords a way of vindicating those imponderable
interests other than the violent and crude one of shooting the offender. The
vindication is real: it consoles the victim of the wrong; it protects the
imponderable interests involved by the deterrent effect of punishment and it
sets at naught the inroad into such inalienable rights by effecting ethical
retribution. Finally it effects atonement, which is a social desideratum.”
In the case of Salisbury
Bottling Co. (Pvt) Ltd & Ors v Central African Bottling Co. (Pvt)
Ltd 1958 (1) SA 750 (FC) all the parties involved were corporate entities.
Our Federal Supreme Court canvassed the right of private prosecution under s 19
of [Cap 28] (the predecessor to s 13 of [Cap 9:07] as an
alternative remedy to the grant of damages or an interdict. In that context,
the court did not draw any specific distinction as between private individuals
and companies. However, it did not consider or make any definitive ruling on
the point presently under review.
The authority relied upon and followed by the court below
in rejecting the appellant's locus standi to prosecute is the South
African case of Barclays Zimbabwe Nominees (Pvt) Ltd v Black
1990 (4) SA 720 (AD). The court in that case held that the phrase
“private person” in section 7(1) (a) of the Criminal Procedure Act No. 51 of
1977 (the equivalent of section 13 in the CP&E Act), as read in the context
of section 7 and the Act as a whole, should be interpreted as meaning only a
natural person. Milne JA, delivering the unanimous decision of the Appellate
Division, elaborated several reasons for arriving at that conclusion: the
definitions of the word “private” in the Oxford Dictionary (2nd
ed.) are indicative of natural rather than artificial characteristics (at
722E-F and 723B-C); the reference to “some injury which he individually
suffered” is peculiarly apposite in the case of natural persons (at 723C-G); s
8(1) of the 1977 Act (the equivalent of our section 14(d)) draws a clear
distinction between natural persons and corporate bodies (at 725A-B); section
10(2) of the 1977 Act, which requires the signature of the indictment, charge
sheet or summons, specifically differentiates between a private prosecutor and
a corporate body (at 725C-E); and, lastly, the need to obviate any resort to
self-help, as articulated in the Van der Merwe case, supra,
underscores the point that “a corporate body as such has no human passions and
there can be no question of the company, as such, resorting to violence” (at
726F-G).
Although, as
was clearly recognised by the learned judge a quo, the South African
and Zimbabwean statutes are broadly in pari materia, I think it
necessary to highlight certain critical differences between them. First and
foremost, s 7(1) of the South African Act confers the right to prosecute on
“any private person …… either in person or by a legal representative”; s 13 of
the CP&E Act provides that “any private party …… may prosecute”. Secondly,
the right to prosecute under statute is exercisable in terms of s 8(1) of
the South African Act by “any body upon which or person upon whom” such right
is expressly conferred; by virtue of s 14(d) of the CP&E Act it is
exercisable by “public bodies and persons on whom” it is specially conferred.
Thirdly, there is no equivalent in the CP&E Act of s 10(2) of the South
African Act which requires the signature of the indictment, charge sheet or
summons by the “prosecutor or his legal representative”. Fourthly, s 11(1) of
the South African Act refers to the failure of “the private prosecutor” to
appear on the day set down for trial; s 18(1) of the CP&E Act refers to
such failure by “the prosecutor, being a private party”.
Ultimately,
the most fundamental distinction between the two statutes is the usage of
“private person” in the South African Act as contrasted with the references to
“private party” in the CP&E Act. The word “person”, in its principal sense,
is defined in The Shorter Oxford English Dictionary (3rd
ed. 1978) as “an individual human being; a man, woman, or child”. However, in
its legal sense, it is defined to mean “a human being (natural person)
or body corporate or corporation (artificial person), having rights or
duties recognised by law”. Again, in the legal context, the word “party” is
defined as “each of two or more persons (or bodies of people) that constitute
the two sides in an action at law, a contract, etc.”. In my view, these
definitions, coupled with the differences that I have highlighted as between
the South African and Zimbabwean statutes, tend to diminish the persuasive
authority of the Appellate Division's otherwise cogent reasoning in the Barclays
Zimbabwe Nominees case.
In England, as I have stated earlier, the Prosecution of
Offences Act 1985 [Cap 23] now provides the regulatory framework
for a comprehensive system of public prosecution. Section 1 of this Act
establishes the Crown Prosecution Service consisting of the Director of Public
Prosecutions, Crown Prosecutors and other subordinate staff. In terms of s 3,
the Director of Public Prosecutions, acting under the superintendence of the
Attorney-General, is charged with the duty of, inter alia, taking over
the conduct of all criminal proceedings instituted on behalf of any police
force, as well as instituting criminal proceedings in important or difficult
cases or where it is otherwise appropriate to do so. In any event, s 6
explicitly preserves the right of private prosecution as follows:
“(1) Subject to subsection (2)
below, nothing in this Part shall preclude any person from instituting any
criminal proceedings or conducting criminal proceedings to which the Director's
duty to take over the conduct of proceedings does not apply.
(2) Where criminal
proceedings are instituted in circumstances in which the Director is not under
a duty to take over their conduct, he may nevertheless do so at any stage.”
Prior to 1985, the importance of the private right to
prosecute is illustrated by the reliance placed upon it by Lord Woolf CJ in R
(Hunt) v Criminal Cases Review Commission [2001] QB 1108 at para.
20:
“Great importance has always been
attached to the ability of an ordinary member of the public to prosecute in
respect of breaches of the criminal law.”
The continuing survival of that right, to the extent
provided for by s 6 of the 1985 Act, was vouchsafed by the House of Lords in Jones
v Whalley [2007] 1 AC 63. Any judicial curtailment of the right was
not readily countenanced. As was observed by Mitting J in R (Ewing) v Davis
[2007] EWHC 1730 (Admin) at para. 23:
“…….. if the right of private
prosecution is to be taken away or subjected to limitation, it is for
Parliament to enact and not for the courts by decision to achieve.”
The position
of corporate entities in England is no different. That the right of private
prosecution can be exercised by a corporate body was confirmed by the
Divisional Court in R (Gladstone PLC) v Manchester City
Magistrates Court [2005] 1 WLR 1987.
More recently, the correctness of that position was
reaffirmed by the Court of Appeal and the Supreme Court in a case involving the
Financial Service Authority (the FSA). The central issue in that case was
whether the FSA had the power to prosecute offences other than those referred
to in ss 401 and 402 of the Financial Services and Markets Act 2000. The FSA
contended that as a body corporate with legal personality it had the common law
power to bring prosecutions in respect of other offences. The FSA is a company
limited by guarantee, incorporated in June 1985. The Memorandum and Articles of
Association of the FSA express its objects and powers in broad terms. The Act
of 2000 did not create the FSA or turn it into a statutory corporation, but
assumed its existence as a body corporate.
The Court of
Appeal (Criminal Division), in R v Rollins and McInerney
[2009] EWCA (Crim) 1941, rejected the contention that ss 401 and 402 of the Act
together created a complete regime of offences that the FSA could prosecute. It
was held by Richards LJ, at para. 30:
“For our part, we can see no
reason why the general right of private prosecution should not be enjoyed by
the FSA. The right is not excluded by FSMA 2000 or any other statutory
provision to which our attention has been drawn, and the powers conferred on
the FSA by its Memorandum of Association are easily wide enough to cover the
institution of criminal proceedings within the scope of its objects.”
The court of
appeal accordingly concluded that the FSA did have the power to prosecute
offences beyond those referred to in sections 401 and 402 of the Act. This
decision was upheld on appeal to the Supreme Court in R v Rollins
[2010] UKSC 39. It was held that a corporation enjoyed the same power to
prosecute as did any individual under the common law right of private
prosecution. Sir John Dyson SCJ, delivering the judgment of the court,
enunciated this position as follows, at paras. 8-9:
“Every person has the right to
bring a private prosecution: see, for example Gouriet v Union of Post
Office Workers [1978] AC 435, 497H per Lord Diplock. The right to bring
private prosecutions has been expressly preserved by section 6 of the
Prosecution of Offences Act 1985 …….. .
Nothing in section 6(1) excludes
bodies corporate from the definition of 'any person'. A corporation may
therefore bring a prosecution provided that it is permitted to do so by the
instrument that gives it the power to act. As Lord Mance noted in Jones v
Whalley [2007] 1 AC 67 at para 38, private prosecutions 'may be initiated
by private bodies such as high street stores, by charities such as NSPCC and
RSPCA, or by private individuals...'.“.
For these
reasons, the broad prosecutorial right of the FSA was confirmed, at paras.
11-14:
“The general position, therefore,
is that the FSA has always been able to bring any prosecution subject to
statutory restrictions and conditions and provided that it is permitted to do
so by its memorandum and articles of association. Most statutes which create
offences do not specify who may prosecute or on what conditions. Typically,
they simply state that a person who is guilty of the offence in question shall
be liable to a specified maximum penalty, it being assumed that anybody may
bring the prosecution. …….. .
The general position before the
enactment of FSMA was that the FSA had the power of a private individual to
prosecute provided that this fell within the scope of its objects and
prosecution was not precluded or restricted by the terms of the relevant
statute.”
Turning to the relevant provisions of the CP&E Act, I
would accept that some of the phraseology employed in section 13 of the Act, in
particular, the reference to “some injury which he individually has suffered”,
strongly supports the proposition that the right to prosecute conferred by that
provision is confined to natural as opposed to artificial persons. On the other
hand, the references to “public bodies and persons” and “public body or
person”, in ss 14 and 16 respectively, suggest otherwise. The term
“private party” itself, as used in Part III of the Act, is defined in s 12, in
a fashion that is plainly tautologous and unhelpful, to mean:
“a person authorized by section thirteen
or fourteen to prosecute any offence”.
In the
context of the Act as a whole, s 2 contemplates a broad definition of “person”
in the following terms:
“ 'person' and 'owner' and other
like terms, when used with reference to property or acts, include corporations
of all kinds, and any other association of persons capable of owning or holding
property or doing acts and they also, when relating to property, include any
department of the State”.
A broader connotation of the
words under review is further supported by s 3(3) of the Interpretation
Act [Cap 1:01] which provides that in every enactment:
“ 'person' or 'party' includes –
(a) any company
incorporated or registered as such under an enactment;
or
(b) any body of persons, corporate or unincorporated;
or
(c) any local or other similar authority”.
Also
relevant for present purposes is s 9 of the Interpretation Act which prescribes
rules as to gender and number as follows:
“(1) Unless the context
otherwise requires, words importing female persons include male persons and
juristic persons and words importing male persons include female persons and
juristic persons.
(2) Words in the singular
include the plural and words in the plural include the singular.”
One of the paramount principles of statutory construction is that the law
should not be subject to casual change. As was succinctly put by Lord Devlin in
National Assistance Board v Wilkinson [1952] 2 QB 648:
“It is a well-established
principle of construction that a statute is not to be taken as effecting a
fundamental alteration in the general law unless it uses words that point
unmistakably to that conclusion”.
Bennion: Statutory
Interpretation, at p. 317, elaborates the principle against casual change
as follows:
“It is a principle of legal policy
that law should be altered deliberately rather than casually, and that
Parliament should not change either common law or statute law by a sidewind,
but only by measured and considered provision. In the case of common law, or
Acts embodying common law, the principle is somewhat stronger than in other
cases. It is also stronger the more fundamental the change is.
The court, when considering, in
relation to the facts of the instant case, which of the opposing constructions
of the enactment would give effect to the legislative intention, should presume
that the legislator intended to observe this principle. The court should
therefore strive to avoid adopting a construction which involves accepting that
Parliament contravened the principle.”
Having
regard to the English authorities cited above, it is clear that the common law
right of private prosecution was not confined to natural persons but extended
as well to juristic and artificial entities. That common law right migrated to
the Cape Colony through Ordinance No. 40 (1828) and Ordinance No.72 (1830) and
remained intact until 10 June 1891, at which stage it became an integral part
of our law (cf. section 89 of the former Constitution). The critical
question is whether the right of private prosecution, as embodied in statute,
has been modified by the CP&E Act (or its predecessors) so as to exclude
private corporations from its ambit.
The
governing rule of statutory interpretation dictates that the provisions of Part
III of the CP&E Act should be construed, insofar as is consistent with
their language and context, so as to preserve the common law components of the
right to prosecute rather than to diminish or extinguish them. I do not
perceive in these provisions any clear or positive legislative intention to
alter pre-existing rights or to constrict the common law position relative to
corporations.
This interpretation is fortified by the reality that
a company is in essence an association of persons and therefore should, albeit
subject to its obvious physical limitations, enjoy the same rights and
privileges as the individual members comprising it, including the right of
prosecution. The fact that it is devoid of human passions and has no personal
interests to protect should not, in principle, detract from that right. Its
interests may be of a purely material or pecuniary character, but they
constitute a proper basis for the right to prosecute. This was clearly
recognised in the Van der Merwe case, supra (in the passage
quoted earlier), and in Levy v Benatar 1987 (1) ZLR 120 (S)
at 126F.
To answer
the question posed above, it seems to me that a liberal and inclusive construction
of s 13 of the CP&E Act accords not only with the definition of “person”
and “party” in section 2 of that Act but also with the broad definition of
those terms in s 3(3) of the Interpretation Act. It also accords with the rule
of interpretation prescribed by s 9(1) of the Interpretation Act, viz.
that words importing male persons include female persons and juristic persons.
Moreover, this construction is neither inconsistent with the context of s 13
nor does it lead to any absurdity. I accordingly take the view that the right
of private prosecution conferred by that provision vests in natural as well as
artificial persons, including private corporations.
ATTORNEY-GENERAL'S DISCRETION
The
requirements for the issuance of a certificate nolle prosequi are
crisply spelt out in s 13 of the CP&E Act. As was expounded by Gubbay JA in
Levy's case (supra) at 125A-G:
“The private party concerned must show:
(i)
some substantial and peculiar interest,
(ii)
in the issue of the trial,
(iii)
arising out of some injury,
(iv)
which he individually has suffered,
(v)
in consequence of the commission of the offence.
……………….
……………….
These five requirements are in addition
to the obligation to obtain from the Attorney-General a certificate of nolle
prosequi, for the practice has always been for the State jealously to
guard its right to prosecute offenders. See Landsdown and Campbell South
African Criminal Law and Procedure Vol. 5 at 120.”
Moreover, as the learned authors cited in the above
passage point out, at p. 121:
“The mere possession of the
attorney-general's certificate does not in itself confer an absolute right of
private prosecution. In the absence of such a right the court will interdict
the person proposing to prosecute privately.”
In other
words, notwithstanding the possession of a certificate, the court may, in the
exercise of its inherent power to prevent abuse of process, interdict a private
prosecution pursuant to such certificate. This inherent power to restrain a
private prosecution was emphasised by Roper J in Solomon v Magistrate,
Pretoria & Another 1950 (3) SA 603 (W) at 607F-H:
“The Court has an inherent power
to prevent abuse of its process by frivolous or vexatious proceedings …….. ,
and though this power is usually asserted in connection with civil proceedings
it exists, in my view, equally where the process abused is that provided for in
the conduct of a private prosecution. In such a case as I have postulated,
therefore, this Court would in my opinion by virtue of its inherent power be
entitled to set aside a criminal summons issued by its own officials or to
interdict further proceedings upon it.”
This broad
principle was confirmed, but with some caution, by Hoexter JA in Phillips
v Botha 1999 (2) SA 555 (SCA) at 565G-I:
“Where the Court finds an attempt
made to use for ulterior purposes machinery devised for the better
administration of justice it is the Court's duty to prevent such abuse. This
power, however, is to be exercised with great caution and only in a clear case.
……… The question is whether the private prosecution of the respondent was
either instituted or thereafter conducted by the appellant for some collateral
and improper purpose, such as the extortion of money, rather than with the
object of having criminal justice done to an offender.”
In the more
recent South African case of Singh v Minister of Justice and
Constitutional Development & Another (5072/05) [2006] ZAKZHC 20, it
was argued that the National Director of Public Prosecutions (the NDPP) was
obliged to issue to the applicant a certificate nolle prosequi once
there had been a decision that he had declined to prosecute, and that it was
not necessary for a private prosecutor to prove some substantial and peculiar
interest in the issue of the trial. It was held, per Hollis AJ, that upon a
proper construction of s 7 of Act No. 51 of 1977 the NDPP was not obliged to do
so unless the requirements of s 7(1) (a) had been met. It was necessary for the
applicant to provide a factual basis proving that he had some substantial and
peculiar interest in the issue of the trial, arising out of some injury which
he has individually suffered in consequence of the commission of the alleged
offence.
Bennion (op. cit.) at p. 625, dealing
specifically with rights in relation to law and legal proceedings, opines that:
“One aspect of the principle
against doubtful penalisation is that by the exercise of state power the rights
of a person in relation to law and legal proceedings should not be removed or
impaired, except under clear authority of law.”
In his ensuing commentary on
the principle, the learned author makes the following observation, at p. 626:
“The right to bring, defend and
conduct legal proceedings without unwarranted interference is a basic right of
citizenship. …….. . While the court has control, subject to legal rules, of its
own procedure, this does not authorize any ruling which abridges the basic
right.”
The language of s 16(1) of the CP&E Act is
categorically clear, viz. a private prosecutor must produce “a
certificate signed by the Attorney-General that he has seen the statements or
affidavits on which the charge is based and declines to prosecute at the public
instance”. Moreover, “in every case in which the Attorney-General
declines to prosecute he shall, at the request of the party intending to
prosecute, grant the certificate required”.
In any event, in construing this provision, we must also
have regard to the Attorney-General's constitutionally guaranteed independence
and wide discretion in matters of criminal prosecution. Taking this into
account, it seems to me that the exercise of his discretion vis-à-vis any
intended private prosecution involves a two-stage process. The first stage is
for him to decide whether or not to prosecute at the public instance. If he
declines to do so, the next stage comes into play, i.e. to decide
whether or not to grant the requisite certificate. In so doing, he must take
into account all the relevant factors prescribed in s 13 of the Act, to wit,
whether the private party in question “can show 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”. If he cannot show
any such interest, the Attorney-General is entitled to refuse to issue the
necessary certificate. However, where the private party is able to demonstrate
the required “substantial and peculiar interest” and attendant criteria, the
Attorney-General is then bound to grant the certificate nolle prosequi.
At that stage, his obligation to do so becomes peremptory and s 16(1) can no
longer be construed as being merely permissive or directory.
This conclusion clearly does not impinge on the
Attorney-General's principal discretion to prosecute or not to prosecute at the
public instance. That decision is an incident of his constitutional primacy in
the sphere of criminal prosecution and is generally not reviewable. Indeed, as
is expressly recognized in s 20 of the CP&E Act, even after a private
prosecution has commenced, he is entitled to apply for the proceedings to be
stopped in order to institute or continue the prosecution at the public
instance. However, once he has declined to prosecute and is met with a request
for private prosecution by a party that satisfies the “substantial and peculiar
interest” requirement of s 13, he has no further discretion in the matter and
is statutorily bound by s 16(1) to issue the requisite certificate.
DISPOSITION
It follows
from all of the foregoing that the appellant, qua private corporation,
is entitled to institute a private prosecution in terms of s 13 of the Act.
However, this entitlement is subject to the issuance of a certificate nolle
prosequi under s 16(1) upon the respondent being satisfied that the
appellant meets the requirements of s 13.
According to
the appellant's founding affidavit in the proceedings a quo, it has
incurred a massive loss in the amount of US$1,700,000 arising from the alleged
fraudulent activities of its former employees. The respondent takes issue with
the evidence required to establish fraud but does not dispute the nature and
extent of the prejudice suffered by the appellant. On the papers, therefore,
the appellant has clearly demonstrated a substantial and peculiar interest in
the issue of the intended prosecution and trial arising out of an injury which
it has suffered by the commission of the alleged offence.
The appellant also avers that, at the stage of bail
proceedings, the evidence against the four accused persons was found to be so
overwhelming as to entail the refusal of bail by the Magistrates Court. Three
weeks later, charges against all four accuseds were withdrawn before plea on
the ground of insufficient evidence. After a further three weeks, following the
appellant's request to mount a private prosecution, the respondent withheld and
declined to issue his certificate nolle prosequi. The reasons stated
for that decision, in the respondent's letter of 23 April 2010, were that “the
evidence [in the police docket] does not establish a criminal offence
against the four suspects” and that it would be “contra bonos mores
for me to grant my certificate in this matter.” However, nothing was stated in
the letter as to his evaluation of the nature and extent of the appellant's
interest in the matter or the relationship between the alleged offence and the
injury sustained by the appellant.
The
appellant's grounds for seeking to review the respondent's decisions before the
court a quo are essentially twofold, to wit, gross irrationality in
his assessment of the evidence in the docket and misdirection at law in his
application of s 16(1) of the Act. The locus classicus on judicial
review in England is the decision of the House of Lords in Council for
Civil Service Unions v Minister for the Civil Service [1984] 3
All ER 935 (HL). Lord Diplock, at 950-951, described the grounds of review as
follows:
“The first ground I would call
'illegality', the second 'irrationality' and the third 'procedural
impropriety'. That is not to say that further development on a case by case
basis may not in course of time add further grounds. I have in mind
particularly the possible adoption in the future of the principle of
'proportionality' which is recognised in the administrative law of several of
our fellow members of the European Economic Community; but to dispose of the
instant case the three already well-established heads that I have mentioned
will suffice.
By 'illegality' as a ground for
judicial review I mean that the decision-maker must understand correctly the
law that regulates his decision-making power and must give effect to it.
Whether he has or not is par excellence a justiciable question to be decided,
in the event of dispute, by those persons, the judges, by whom the judicial
power of the state is exercisable.
By 'irrationality' I mean what can
by now be succinctly referred to as 'Wednesbury unreasonableness' (see Associated
Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER
680, [1948] 1 KB 223). It applies to a decision which is so outrageous in its
defiance of logic or of accepted moral standards that no sensible person who
had applied his mind to the question to be decided could have arrived at it.
Whether a decision falls within this category is a question that judges by
their training and experience should be well equipped to answer, or else there
would be something badly wrong with our judicial system. To justify the court's
exercise of this role, resort I think is today no longer needed to Viscount
Radcliffe's ingenious explanation in Edwards (Inspector of Taxes) v Bairstow
[1955] 3 All ER 48, [1956] AC 14 of irrationality as a ground for a court's
reversal of a decision by ascribing it to an inferred though unidentifiable
mistake of law by the decision-maker. 'Irrationality' by now can stand on its
own feet as an accepted ground on which a decision may be attacked by judicial
review.
I have described the third head as
'procedural impropriety' rather than failure to observe basic rules of natural
justice or failure to act with procedural fairness towards the person who will
be affected by the decision. This is because susceptibility to judicial review
under this head covers also failure by an administrative tribunal to observe
procedural rules that are expressly laid down in the legislative instrument by
which its jurisdiction is conferred, even where such failure does not involve
any denial of natural justice. But the instant case is not concerned with the
proceedings of an administrative tribunal at all.”
Lord Roskill, at 953-954,
adverted favourably to the “new nomenclature” devised by Lord Diplock but
adopted a slightly different approach which, in essence, retains the same
classification:
“But your Lordships are vitally
concerned with that branch of judicial review which is concerned with the
control of executive action. This branch of public or administrative law has
evolved, as with much of our law, on a case by case basis and no doubt
hereafter that process will continue. Thus far this evolution has established
that executive action will be the subject of judicial review on three separate
grounds. The first is where the authority concerned has been guilty of an error
of law in its action, as for example purporting to exercise a power which in
law it does not possess. The second is where it exercises a power in so
unreasonable a manner that the exercise becomes open to review on what are
called, in lawyers' shorthand, Wednesbury principles (see Associated
Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER
680, [1948] 1 KB 223). The third is where it has acted contrary to what are
often called 'principles of natural justice'.”
In Patriotic
Front-Zimbabwe African People's Union v Minister of Justice, Legal and
Parliamentary Affairs 1985 (1) ZLR 305 (SC), the question that fell for
resolution was whether the courts could test the validity of anything done by
the President. Dumbutshena CJ, at 325-326, commended the decision in the CCSU
case as follows:
“More recently the House of Lords
laid down the grounds upon which administrative actions are subject to judicial
review. These grounds appeal to me not only because they were pronounced by an
eminent Law Lord, but also because they make clear the wide extent of the
theatre of operation in which courts can test the validity of prerogative
actions.”
The learned
Chief Justice then proceeded, at 327-328, to adopt and apply the grounds of
review expounded by the House of Lords:
“I respectfully agree with Lord
Diplock's three grounds on the reviewability of decisions taken under royal
prerogative (in our case Executive prerogative), which clearly state the
grounds upon which actions taken under executive prerogative can be attacked by
the courts.
I have no doubt in my mind that
the Electoral Act (Modification) Notice 1985 and Proclamation 2 of 1985 ……..
are reviewable by the court on the grounds so ably stated by Lord Diplock.”
Section 26 of the High Court Act [Chapter 7:06]
declares the inherent power, jurisdiction and authority vested in the High
Court to review all proceedings and decisions of all inferior courts, tribunals
and administrative authorities within Zimbabwe. In terms of s 28 of the Act,
upon the review of any civil proceedings or decision, the High Court may,
subject to any other law, set aside or correct the proceedings or decision.
The principles of judicial review
enunciated by Lords Diplock and Roskill, and subsequently adopted by
Dumbutshena CJ, are now codified in s 3(1)(a) of the Administrative
Justice Act [Cap10:28]. This provision enjoins every administrative
authority which has the responsibility or power to take any administrative
action which may affect the rights, interests or legitimate expectations of any
person to “act lawfully, reasonably and in a fair manner”. Subsections (2) and
(3) of s 4 restate and elaborate the inherent powers of the High Court to grant
relief in respect of any reviewable irregularity. These include the power to
confirm or set aside the decision under review or refer the matter back to the
administrative authority concerned for consideration or reconsideration.
Additionally, the High Court may give such directions as it may consider
necessary or desirable to achieve and ensure compliance by the administrative
authority with s 3 as well as the relevant law or empowering provision.
Dealing with the
irrationality ground invoked by the appellant, I do not think that the
respondent's assessment of the evidence against the accused persons in question
can properly be subjected to review. As I have already stated, that is a
function that forms part of his constitutional prerogative and cannot
ordinarily be questioned by the courts. Even if it were held to be reviewable,
it cannot be said on the facts in casu that his decision is so
irrational in its defiance of logic or accepted moral standards that no
reasonable person in his position who had applied his mind to the matter could
have arrived at it.
On the other
hand, turning to the legality of the respondent's decision not to issue his
certificate, it is clear that he has failed to exercise his statutory powers on
a proper legal footing. Having declined to prosecute at the public instance, he
should have considered whether or not the appellant satisfied the “substantial
and peculiar interest” requirement of s 13 of the Act. He did not do so but
proceeded to decline his certificate nolle prosequi on the basis that
there was insufficient evidence to prosecute. He consequently failed to
correctly understand and give effect to the requirements of s 16(1) which
regulated his decision-making power. Put differently, by withholding his
certificate, he was guilty of an error of law by purporting to exercise a power
which in law he did not possess. He thereby contravened his duty to act
lawfully in accordance with the peremptory injunction of s 16(1). This
constitutes a manifest misdirection at law rendering his decision reviewable on
the ground of illegality.
It follows
that the court a quo should have found in favour of the appellant on
the first ground of review pleaded by it, viz. that the respondent
misdirected himself at law in exercising his discretion under s 16(1) of [Cap
9:07]. As I have already indicated, the High Court is endowed with wide
powers of review, including the power to set aside and correct the decision
under review or refer the matter back for reconsideration or give directions to
ensure compliance with the law. In the present matter, in light of the
appellant having demonstrated its “substantial and peculiar interest in the
issue of the trial” in terms of s 13, no useful purpose would be served by
remitting the matter to the respondent for reconsideration. The best recourse
in the circumstances of this case would be to grant the relief prayed for by
the appellant in the High Court.
In the
result, the appeal is allowed with costs. The judgment of the court a quo
is set aside and substituted with the following:
“1. The decision by the
respondent to refuse to grant a certificate nolle prosequi
to the applicant be and is hereby set aside.
2.
The respondent is directed and ordered, within 5 days of the date of this
order, to issue a certificate to the applicant that he declines to prosecute
the fraud charge at the public instance.
3.
The respondent shall pay the costs of this application.”
ZIYAMBI JA:
I agree.
GARWE JA:
I agree.
Scanlen & Holderness, appellant's legal
practitioners
Civil Division of the Attorney-General's Office,
respondent's legal practitioners
