The right for juristic persons to pursue private prosecutions was the subject of intense debate in the Constitutional Court in Johannesburg yesterday as the National Council of Societies for the Prevention of Cruelty to Animals (NSPCA) fought for the right to go after people the National Prosecuting Authority (NPA) has refused to.
In law, a “juristic person” is recognised as an organisation or business. Basically, a private person may bring a private prosecution, while a juristic person is forbidden from doing so.
The Constitutional Court application is the NSPCA’s last-gasp attempt at having people prosecuted for allegedly torturing a camel so badly during a religious ceremony that,“in an act of compassion, the inspector shot the camel to relieve it of its misery” the NSPCA claimed at the Supreme Court of Appeal (SCA) hearing.
At the time, the NPA declined to prosecute the suspects for what the NSPCA alleged was “cruel and inhumane” treatment, possibly because of the constitutional nightmare the case may open in terms of freedom to practise religion.
The NSPCA has failed in its appeals to Pretoria’s high court and the Supreme Court of Appeals and, with the NPA refusing to issue a nolle prosequi certificate (decline to prosecute –nolly in slang) because the NSPCA is not a private person, it has been unable to attempt to find justice for the allegedly tortured animal.
Yet, granting the right of private prosecution to organisations would in itself open a can of worms, the Constitutional Court realised yesterday.
Justice Johan Froneman wanted to know –in line with the NSPCA’s application – what offences would then be open for private prosecution, and it was advocate Kevin Hopkins for the NSPCA who had to respond.
“The offences are set out in section 2 of the [Criminal Procedure] Act and this raises a difficult question, which I’m afraid I haven’t considered – and that is whether the powers under section 8 to become a private prosecutor are then restricted only to the offences enumerated in the statute itself,” said Hopkins.
The sections deal specifically with cruelty to animals.
Amicus Curiae Corruption Watch said in its submission that “allowing juristic persons to engage in private prosecutions where the NPA has declined to prosecute is a critical issue in combating corruption and will serve the public interest”.
Advocate Steven Budlender for Corruption Watch said in his heads of argument that the application, if successful, would increase the prospects of successful convictions for corruption.
“It also substantially reduces the incentive of those accused of corruption to seek to influence the NPA in an improper manner, as they will be aware that this will not preclude a prosecution taking place,” said Budlender.
The NSPCA noted in its heads there were other “good reasons” for extending the right of private prosecution to other juristic persons.
“The modern commercial world is exposed to crimes that are increasingly harder toi detect, investigate and prosecute.
“The crimes themselves are becoming more technical and the methods of committing them more sophisticated,” Hopkins wrote.
“The state, with the greatest of respect, does not always possess the requisite skills expertise, nor capacity to prosecute all offenders.”
For its part, the NPA contested that the NSPCA was empowered by sections of the SPCA Act, which conferred, among others, “upon the applicant the power to institute legal proceedings”.
“We submit that this includes the power to institute criminal proceedings,” wrote advocate Lesego Montsho-Moloisane (SC) for the NPA.
“Even if we are wrong in our submission, it is submitted that the correct approach for the applicant would be to lobby parliament to amend or review its legislation in order to address these shortcomings.”
Judgment was reserved.