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Protecting Animals from Mistreatment through Private Prosecutions in South Africa: A Comment on National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development 2016 1 SACR 308 (SCA)

Published online by Cambridge University Press:  08 May 2017

Jamil Ddamulira Mujuzi
Jamil Ddamulira Mujuzi*
Affiliation:
University of the Western Cape
*
[email protected]
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Abstract

The general rule in South Africa is that, when an offence is committed, the suspect has to be prosecuted by a public prosecutor. However, there is an exception whereby a victim of crime is permitted to institute a private prosecution if the prosecutor has declined to prosecute. South African law allows natural, but not juristic, persons to institute private prosecutions. In the case examined in this note, the appellant argued that the law prohibiting juristic persons from instituting private prosecutions is discriminatory. The Supreme Court of Appeal held that private prosecutions are only permitted on grounds of direct infringement of human dignity. This note argues that section 7 of the Criminal Procedure Act is unconstitutional for excluding juristic persons from instituting private prosecutions and recommends steps the appellant could take to institute private prosecutions against those who mistreat animals.

Keywords

Private prosecutionsSouth Africaprotection of animalsdiscriminationhuman dignityjuristic person
Type
Case Notes
Information
Journal of African Law , Volume 61 , Issue 2 , June 2017 , pp. 289 - 304
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Copyright
Copyright © SOAS, University of London 2017 

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Footnotes

*

Professor of law, Faculty of Law, University of the Western Cape, South Africa.

References

1 Act 32 of 1998.

2 The prosecution policy of the National Prosecuting Authority provides for circumstances in which a public prosecutor may not prosecute an alleged offender even if there is evidence that he / she committed the offence in question. See “Prosecution policy” (2014), available at: <https://www.npa.gov.za/sites/default/files/Library/Prosecution%20Policy%20%28Final%20as%20Revised%20in%20June%202013.%2027%20Nov%202014%29.pdf> (last accessed 20 March 2017).

3 Act 51 of 1977.

4 Id, sec 8.

5 See for example: National Environmental Management Act (Act No 107 of 1998), sec 33; Prevention of Illegal Eviction From and Unlawful Occupation of Land Act, Act No 19 of 1998, sec 8; Extension of Security of Tenure Act 1997, sec 23; and Attorneys Act, 1979, sec 46A.

6 National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development 2016 1 SACR 308 (SCA), para 8.

7 See for example: Freedom Under Law v National Director of Public Prosecutions and Others 2014 (1) SACR 111 (GNP), para 190; Nundalal v Director of Public Prosecutions KZN and Others (AR723/2014) [2015] ZAKZPHC 28 (8 May 2015), paras 53–54; Delport and Others v S [2015] 1 All SA 286 (SCA), 2015 (1) SACR 620 (SCA), para 31; and Reynolds NO v Beinash and Another [1998] JOL 2274 (W) at 6.

8 See generally Mujuzi, JD “The right to institute a private prosecution: A comparative analysis” (2015) 4 International Human Rights Law Review 222CrossRefGoogle Scholar.

9 National Society for the Prevention of Cruelty to Animals, above at note 6, para 28.

10 Barclays Zimbabwe Nominees (Pvt) Ltd v Black 1990 (4) SA 720 (A) at 721.

11 Kleyn, DG and Viljoen, F Beginner's Guide for Law Students (4th ed, 2010, Juta Google Scholar) at 56.

12 Act 33 of 1957.

13 Barclays Zimbabwe Nominees, above at note 10 at 724.

14 Id at 726. This principle was also emphasized in Reynolds v Beinash 1998 JDR 0510 (W).

15 (29677/2013) [2014] ZAGPPHC 763 (8 October 2014).

16 Id, para 19.

17 Id, para 24.

18 Id, paras 25–26.

19 Id, para 27.

20 National Society for the Prevention of Cruelty to Animals, above at note 6, para 6.

21 Ibid.

22 Id, para 29.

23 Id, para 19.

24 Id, paras 20–24.

25 Id, para 25.

26 Id, para 26.

27 Id, para 28.

28 See above at note 5.

29 Act No 169 of 1993.

30 National Society for the Prevention of Cruelty to Animals, above at note 6, para 11.

31 G Fraser and V Fraser “If only the SPCA were a company …” (9 December 2015) Legal Brief Today.

32 Debates of the National Assembly (Hansard) (11 May 1962) at 5516.

33 Id at 916. It was introduced by Hon Gay.

34 Id at 929.

35 Ibid.

36 Id at 1217.

37 Id at 5515.

38 Id at 5516.

39 Debates of the National Assembly (Hansard) (25 November 1993) at 14064–89.

40 National Society for the Prevention of Cruelty to Animals, above at note 6, para 28.

41 Phillips v Botha 1999 (2) SA 555 (SCA); [1999] 1 All SA 524 (A).

42 Nundalal, above at note 7.

43 Bothma v Els and Others 2010 (2) SA 622 (CC); 2010 (1) SACR 184 (CC); 2010 (1) BCLR 1 (CC).

44 I Currie and J De Waal The Bill of Rights Handbook (6th ed, 2013, Juta) at 250–57.

45 Id at 251.

46 Ibid.

47 National Society for the Prevention of Cruelty to Animals, above at note 6, para 26.

48 Records of the Cape Colony (vol 21, 1827) at 124–25.

49 Barclays Zimbabwe Nominees, above at note 10 at 726.

50 National Society for the Prevention of Cruelty to Animals, above at note 6, para 29.

51 Currie and De Waal The Bill of Rights, above at note 44 at 171–72.

52 Id at 150–75.

53 Singh v Minister of Justice and Constitutional Development and Another (5072/05) [2006] ZAKZHC 20 (5 May 2006).

54 Nundalal, above at note 7.

55 National Society for the Prevention of Cruelty to Animals, above at note 6, para 9.

56 Fraser and Fraser “If only the SPCA”, above at note 31.

57 Constitution, sec 167(3)(b)(i).

58 Id, sec 167(3)(b)(ii).

59 Paulsen and Another v Slip Knot Investments 777 (Pty) Limited 2015 (3) SA 479 (CC), paras 16–18.

60 In Mashongwa v PRASA (CCT03/15) [2015] ZACC 36 (26 November 2015), para 15, the court held that “this application raises a constitutional issue. It also raises an arguable point of law of general public importance relating to PRASA's legal obligations to protect its rail commuters from harm”.

61 Sec 49A provides: “Notwithstanding the provisions of sec 76, the board of control may, by any person authorized 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.”

62 See for example: National Director of Public Prosecutions and Others v Freedom Under Law 2014 (4) SA 298 (SCA), 2014 (2) SACR 107 (SCA), [2014] 4 All SA 147 (SCA); Zuma v National Director of Public Prosecutions [2009] 1 All SA 54 (N), 2009 (1) BCLR 62 (N); and Democratic Alliance v Acting National Director of Public Prosecutions and Others (19577/2009) [2016] ZAGPPHC 255 (29 April 2016); Acting National Director of Public Prosecutions and Others v Democratic Alliance In Re: Democratic Alliance v Acting National Director of Public Prosecutions and Others (19577/09) [2016] ZAGPPHC 489 (24 June 2016).

63 Freedom Under Law, para 51.

64 On appeal to the Constitutional Court, the court did not address the issue of the constitutionality of sec 7 of the Criminal Procedure Act because it did not consider it to be a live dispute. See National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development and Another 2017 (1) SACR 284 (CC), para 63.