Mathunyane and Another v Mokoena (5722/2024) [2024] ZAMPMHC 61 (18 November 2024)

Mathunyane and Another v Mokoena (5722/2024) [2024] ZAMPMHC 61 (18 November 2024)

The court found that the respondent failed to satisfy the jurisdictional requirements for private prosecution under section 7(1)(a) of the Criminal Procedure Act, as he did not suffer any personal injury arising from the alleged offences. The respondent's interest was indirect and speculative, relating to potential liability as Secretary General of the party, rather than a direct injury. The inclusion of charges not listed in the nolle prosequi certificate was unlawful, as section 7(2)(a) restricts private prosecution to charges specified therein. The court held that the applicants' constitutional rights justified urgency and that there was no alternative remedy. The application for...

Citation
[2024] ZAMPMHC 61
Parties
Applicant: Selape Thato Mathunyane; Applicant: Finky Sonia Ngomane; Respondent: Ben Hamilton Mokoena
Court
Middelburg High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
18 November 2024
Case Number
5722/2024
Procedural Posture
Urgent Application / Opposed Urgent Application to Set Aside Private Prosecution Summons and Interdict Respondent From Reinstituting Proceedings.
Outcome
Application granted. The summons instituting private prosecution is set aside as unlawful, unconstitutional, and invalid. The respondent is interdicted from reinstituting prosecution. Costs awarded on attorney and client scale.
Judges
JL Bhengu
Legal Topics
Private Prosecution, Locus Standi, Abuse of Process, Electoral Offences, Nolle Prosequi Certificate
Criminal Law Civil Procedure Private Prosecution Locus Standi Abuse of Process Electoral Offences Nolle Prosequi Certificate

Case Brief

Summary, issues, holding and outcome

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Parties

Selape Thato Mathunyane

Applicant

Finky Sonia Ngomane

Applicant

Ben Hamilton Mokoena

Respondent

Procedural Posture

Urgent Application / Opposed Urgent Application to Set Aside Private Prosecution Summons and Interdict Respondent From Reinstituting Proceedings.

Legal Issues

  1. 1 Whether the respondent had locus standi to institute private prosecution under section 7(1)(a) of the Criminal Procedure Act.
  2. 2 Whether the summons for private prosecution should be set aside due to noncompliance with statutory requirements.
  3. 3 Whether charges not appearing on the nolle prosequi certificate are unlawful.

Ratio Decidendi

The court found that the respondent failed to satisfy the jurisdictional requirements for private prosecution under section 7(1)(a) of the Criminal Procedure Act, as he did not suffer any personal injury arising from the alleged offences. The respondent's interest was indirect and speculative, relating to potential liability as Secretary General of the party, rather than a direct injury. The inclusion of charges not listed in the nolle prosequi certificate was unlawful, as section 7(2)(a) restricts private prosecution to charges specified therein. The court held that the applicants' constitutional rights justified urgency and that there was no alternative remedy. The application for...

Court Disposition

Application granted. The summons instituting private prosecution is set aside as unlawful, unconstitutional, and invalid. The respondent is interdicted from reinstituting prosecution. Costs awarded on attorney and client scale.

Orders

  • The summons in criminal case number 219/24 issued in the Regional Division of Middelburg on 22 October 2024 for private prosecution against the applicants by the respondent is declared unlawful, unconstitutional, invalid and set aside.
  • The respondent is interdicted and restrained from reinstituting, proceeding with, or taking any further steps pursuant to the private prosecution of the applicants.