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At a later stage, the charges against them were withdrawn before plea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 section 13 who are entitled to
prosecute are identified in section 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 section 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 p19, 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 p25).
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 p25).
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 section 19 of [Cap
28] (the
predecessor to section 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); section 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.
(i)
First and foremost, section 7(1) of the South African Act confers the
right to prosecute on “any private person…… either in person or
by a legal representative”; section 13 of the CP&E Act provides
that “any private party…… may prosecute”.
(ii)
Secondly, the right to prosecute under statute is exercisable in
terms of section 8(1) of the South African Act by “any body upon
which or person upon whom” such right is expressly conferred; by
virtue of section 14(d) of the CP&E Act it is exercisable by
“public bodies and persons on whom” it is specially conferred.
(iii)
Thirdly, there is no equivalent in the CP&E Act of section 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”.
(iv)
Fourthly, section 11(1) of the South African Act refers to the
failure of “the private prosecutor” to appear on the day set down
for trial; section 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 section 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, section 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
section 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 sections 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 sections 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 sections 14 and 16 respectively,
suggest otherwise.
The
term “private party” itself, as used in Part III of the Act, is
defined in section 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, section 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
section 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 section 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 p317, 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 section 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
section 3(3) of the Interpretation Act.
It
also accords with the rule of interpretation prescribed by section
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 section
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 section 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 p121:
“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 section 7
of Act No.51 of 1977 the NDPP was not obliged to do so unless the
requirements of section 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 p625,
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 p626:
“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 section 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-a-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 section 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 section
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 section 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 section 13, he has no further
discretion in the matter and is statutorily bound by section 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 section 13 of the Act. However, this entitlement is
subject to the issuance of a certificate nolle
prosequi under
section 16(1) upon the respondent being satisfied that the appellant
meets the requirements of section 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:
(i)
gross irrationality in his assessment of the evidence in the docket;
and
(ii)
misdirection at law in his application of section 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 section 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 section 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 section 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 section 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 section 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 section 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 section 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 section 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 section 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
