Porrit and Another v National Prosecuting Authority of South Africa and Others [2023] ZAGPPHC 136; B825/2023 (6 March 2023)

Porrit and Another v National Prosecuting Authority of South Africa and Others [2023] ZAGPPHC 136; B825/2023 (6 March 2023)

The application for a mandamus compelling the NDPP to issue a certificate nolle prosequi fails because the NDPP cannot comply with the statutory requirement to consider the statements or affidavits on which the charge is based, as the docket is unavailable. The applicants' delay in requesting the certificate contributed to the impossibility of reconstructing the docket before the prescription period lapses. The principle lex non cogit ad impossibilia applies: the law does not require the impossible. Therefore, the NDPP is not legally able to issue the certificate, and the application must be dismissed. Each party is to bear its own costs.

Citation
[2023] ZAGPPHC 136
Parties
Applicant: Gary Patrick Porritt; Applicant: Susan Hilary Bennett; Respondent: National Prosecuting Authority of South Africa; Respondent: National Director of Public Prosecutions; Respondent: Director of Public Prosecutions, Pretoria
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
6 March 2023
Case Number
B825/2023
Procedural Posture
Urgent Application / Application for Mandamus to Compel Issue of Nolle Prosequi Certificate
Outcome
Application dismissed; no order as to costs.
Judges
Millar
Legal Topics
Nolle Prosequi Certificate, Private Prosecution, Mandamus, Lex Non Cogit Ad Impossibilia, Administrative Action, Prescription of Criminal Offences
Criminal Law Administrative Law Nolle Prosequi Certificate Private Prosecution Mandamus Lex Non Cogit Ad Impossibilia Administrative Action Prescription of Criminal Offences

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Parties

Gary Patrick Porritt

Applicant

Susan Hilary Bennett

Applicant

National Prosecuting Authority of South Africa

Respondent

National Director of Public Prosecutions

Respondent

Director of Public Prosecutions, Pretoria

Respondent

Procedural Posture

Urgent Application / Application for Mandamus to Compel Issue of Nolle Prosequi Certificate

Legal Issues

  1. 1 Whether the National Director of Public Prosecutions can be compelled to issue a certificate nolle prosequi under section 7(2)(a) of the Criminal Procedure Act when the docket is unavailable.
  2. 2 Whether the applicants' delay in requesting the certificate affects their entitlement to relief.
  3. 3 Whether the NDPP is legally able to issue the certificate in the absence of the docket and supporting affidavits.

Ratio Decidendi

The application for a mandamus compelling the NDPP to issue a certificate nolle prosequi fails because the NDPP cannot comply with the statutory requirement to consider the statements or affidavits on which the charge is based, as the docket is unavailable. The applicants' delay in requesting the certificate contributed to the impossibility of reconstructing the docket before the prescription period lapses. The principle lex non cogit ad impossibilia applies: the law does not require the impossible. Therefore, the NDPP is not legally able to issue the certificate, and the application must be dismissed. Each party is to bear its own costs.

Court Disposition

Application dismissed; no order as to costs.

Orders

  • The application is dismissed.
  • There is no order as to costs.