Tsholo v Kgafela and Others (1244/2004) [2004] ZANWHC 36 (9 December 2004)

REPORTABLE CASE NO. 1244/2004

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

PETER SENWELO TSHOLO APPLICANT

And

REGINA KGAFELA 1ST RESPONDENT

ADV. M.H. NKOANA 2ND RESPONDENT

THE DIRECTOR OF PUBLIC

PROSECUTIONS, NORTH WEST 3ND RESPONDENT

___________________________________________________________________

JUDGMENT

MOGOENG JP.

Introduction

[1] The Applicant in this matter, Peter Senwelo Tsholo, is an accused in a case relating to the murder of the first Respondent’s ex-husband, Ellias Molahlegi Kgafela. The second Respondent, Adv M.H. Nkoana, is the legal representative assisting the first Respondent in the private prosecution of the Applicant. The third Respondent is the Director of Public Prosecutions in the North West Province.

[2] This is an application for an order restraining the first and second Respondents from commencing the private prosecution of the Applicant. It came before me on an urgent basis. The Respondents were served with papers for the application. The first and second Respondents filed affidavits opposing this application although they were neither in attendance nor represented during the hearing of the application. The third Respondent did not oppose the application and chose to abide by the decision of the Court. After hearing counsel’s submissions, I reserved judgment. This then is the judgment. The facts giving rise to the application are set out below.

Background

[3] Some time in 2001, both the Applicant and the first Respondent were arraigned before Friedman JP on a charge of murder. The basis for the charge was that the first Respondent, who was the wife to the deceased in that matter, had hired the Applicant to kill her husband. The Applicant did not perform the task himself but enlisted the services of one Vayi. As a result, the first Respondent’s husband was subsequently shot and later died in hospital.

[4] During the course of the trial, the charge against the Applicant was withdrawn after he had agreed to become a State witness, in terms of s 204 of the Criminal Procedure Act No. 51 of 1977 (“the Act”), against the first Respondent. The trial proceeded against the first Respondent. She pleaded guilty to the charge and was convicted on her plea of guilty. Friedman JP found that no substantial and compelling circumstances exist and sentenced the first Respondent to an effective term of life imprisonment. (Friedman JP’s judgment is reported as S v Kgafela 2001 (2) SACR 207 (B).) An appeal to the Supreme Court of Appeal against the sentence was dismissed. (S v Kgafela 2003 (2) SACR 176 (SCA).)

[5] Since the first Respondent had tendered an acceptable plea of guilty, the Applicant did not testify on the merits. He only testified on sentence. When he did, the Court was not informed that he was an accomplice in respect of whom the procedure in terms of s 204 of the Act was to be followed. Accordingly the issue of the indemnity of the Applicant from prosecution in terms of s 204 of the Act did not arise. The Applicant was, therefore, not indemnified from prosecution.

[6] First Respondent wanted the Applicant to be prosecuted for his role in the commission of the murder. Accordingly she approached the Director of Public Prosecutions. The Director of Public Prosecutions declined to prosecute and issued a certificate to that effect. The first Respondent, duly assisted by the second Respondent, then instituted a private prosecution against the Applicant. The second Respondent issued a summons and set the matter down for trial on 29 September 2004. On that date, the Applicant challenged the validity of the summons for want of compliance with s 144(4)(a) of the Act. The section requires an indictment (a summons), together with a notice of trial to be served on an accused person ten days before the date appointed for trial, unless an accused person agrees to a shorter period. The first Respondent served the summons on the Applicant less than ten days before the trial date. The Applicant had not agreed to that shorter period. Consequently, Gura AJ (as he then was) struck the matter off the roll. A second summons was, according to the Applicant in his founding affidavit, issued on 04 October 2004. According to this summons, the Applicant had to appear in Court again on 22 November 2004. This date was 11 Court days from the date on which this application was heard.

The Issues

[7] The Applicant has launched this application in order to permanently interdict both the first and the second Respondents from proceeding with their private prosecution of him and asks for a costs order against both of them.

[8] The basis of the application is four-fold: (1) the security for costs was not deposited as required by s 9(1)(b) of the Act; (2) the first and second summons were irregularly issued in that they were not issued by the authorised official and the second summons was issued while the first summons had not been set aside and was still effective; (3) the first and the second Respondents have no lucus standi or title to conduct the private prosecution; and (4) the Applicant was indemnified against prosecution in respect of the murder charge.

This ground is, as clearly appears from paragraph 5 above, without merit.

[9] First Respondent raised a number of defences to the Applicant’s contentions, two of which are that the matter is not urgent and that this Court has no jurisdiction to entertain the application in that the Applicant should raise the issue of lack of locus standi as a plea in terms of s 106(1)(m) of the Act at his trial. It is not necessary to deal with these defences, suffice it to say that the matter is urgent and that this Court has jurisdiction to entertain the application in terms of its inherent common law powers (Solomon v Magistrate, Pretoria, & Another 1950 (3) SA 603 (T) at 607E-H; Phillips v Botha 1995 (3) SA 948 (W) at 951F; van de Venter v Reichenberg & Another [1996] 1 ALL SA 125 (C) at 132F-G; Phillips v Botha [1998] ZASCA 105; 1999 (2) SA 555 (SCA) at 565F-G; and Nedcor Bank Ltd & Another v Gcilitshana & Others 2004 (1) SA 232 (SECLD) at 241A-E).

[10] In the view I take of the matter, I do not deem it necessary to deal with all the grounds relied on in support of and in opposition to this application and all of the parties’ submissions relating thereto. I will therefore only deal with the issue of lack of locus standi, since a finding in favour of the Applicant will be dispositive of the matter. The only other issue is costs. I, thereby, mean no disrespect to counsel for their comprehensive and eloquent submissions on the remaining issues. The key issues are dealt with below.

Locus Standi

[11] The portion of s 7(1) of the Act, which is relevant to this case, reads as follows:

“In any case in which an Attorney-General [now a Director of Public Prosecutions] declines to prosecute for an alleged offence –

Any private person who proves some substantial and peculiar interest in the issue of the trial arising out of some injury which he individually suffered in consequence of the commission of the said offence;

. . .

The wife . . . if the death of such person is alleged to have been caused by the said offence; or

May subject to the provisions of section 9, either in person or by a legal representative, institute and conduct a prosecution in respect of such offence in any court competent to try that offence.”

It is necessary to address the question whether the first Respondent has locus standi to institute private prosecution by virtue of being the deceased’s wife or on the same basis as any private person would qualify in terms of s 7(1)(a). I do so below.

i) The Wife

[12] It is clear from s 7(1) that before a person may institute and conduct a private prosecution, he/she must have locus standi. The section distinguishes between ‘any private person’ and ‘the wife’. Whereas a private person must prove ‘some substantial and peculiar interest in the issue of the trial arising out of some injury which he individually suffered’, this is not so in respect of the wife. She is automatically presumed to have the necessary interest (du Toit et al, Commentary on the Criminal Procedure Act at 1-6A).

[13] In the instant case, the first Respondent and her husband (the deceased) were divorced prior to the commission of the murder (See the judgments of Friedman JP supra at 226H and the Supreme Court of Appeal supra at 180C). She was no longer his wife. Consequently the automatic presumption of the necessary interest to prosecute does not operate in her favour. The first Respondent may well be able to show that as any other private person, she does have the locus standi to institute and conduct a private prosecution. An exploration of that possibility follows below.

ii) Any Private Person

[14] The rationale behind the requirement of a substantial and peculiar interest on the part of a private person was 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 (Attorney-General v van der Merwe and Bornman 1946 OPD 1977 at 201). The injury suffered individually by the private prosecutor must be beyond that suffered by the public generally (Levy v Benatar 1987 (4) SA 693 (ZS) at 699G-G).

[15] In Phillips v Botha the Appellant permitted the Respondent to gamble in his premises. At that time, gambling was illegal and the Appellant was aware of this fact. The Respondent paid the Appellant by cheques. However, the Respondent later ordered his bank not to honour the cheques. The Appellant laid charges against the Respondent. The Attorney-General declined to prosecute and the Appellant instituted a private prosecution in the Magistrate’s Court. The Appellant’s locus standi was successfully challenged in the High Court. He appealed to the Supreme Court of Appeal. The Supreme Court of Appeal, approving the decision of Heher J (as he then was) in which Strydom J concurred, expressed itself thus:

“In the end Heher J was driven to the conclusion that the appellant lacked locus standi as a private prosecutor on the ground that any injury which he may have suffered in the instant case is not an injury cognisable under s 7 of the Act. With that finding I entirely agree. It is no doubt so that in pressing for the conviction of the respondent the appellant is not seeking civil enforcement of an illegal contract. The essential fact of the matter, however, remains that any representation which the respondent may have made as to his own state of mind which induced the appellant to accept the former’s cheques was part and parcel of the whole illegal transaction in which they were both engaged. Viewed from any angle the conclusion seems to me inescapable that what the appellant is trying to do through the machinery of a private prosecution is to found a case in criminal law based on his own iniquity. Closely allied to the rule of our law ex dolo malo non oritur actio is the maxim nemo auditur propriam turpitudinem allegans (no one is heeded who adduces his own infamy) . . .

In prosecuting the respondent that is precisely what the appellant is seeking to do. He is in law not entitled to do so”

(At 566H-567A)

[16] In this case, the first Respondent hired the Applicant to kill her ex-husband. The Applicant enlisted the services of Vayi to achieve that goal. The deceased lost his life as a result of this illegal transaction authored and stage-managed by the first Respondent herself. Assuming that the first Respondent has suffered any injury as a result of the killing of her former husband, what she is now trying to do through the machinery of a private prosecution, is to found a case in criminal law based on her own iniquity. She cannot be heeded for adducing her own infamy. Her conduct in instituting the private prosecution constitutes an abuse of process of the Court. That in law she is, just like Phillips in Phillips v Botha supra, not entitled to do.

[17] The above discussion of s 7(1)(a) and the conclusion is all that needs to be said since there is no need to deal separately with the existence and nature of the substantial and peculiar interest of the private person on the one hand and the injury on which the interest arises on the other. This was aptly stated in Phillips v Botha (SCA) supra at 567B-D as follows:

“I return to the question whether it was necessary for the Court below to undertake separate inquiries into (1) substantial and peculiar interest; and (2) the injury out of which such interest arises. If (as the Court a quo correctly found) the injury of which the appellant complains is not one which falls within the purview of s 7(1) of the Act, that finding must, I consider, at once be destructive of the existence on the part of the appellant of any ‘substantial and peculiar interest’ in the issue of the trial, because the ‘interest’ is one which in terms of the subsection ‘arises out of’ the ‘injury’. In my view the two concepts are indissolubly linked. In the absence of an injury cognisable under s 7(1) there can be on the part of a private prosecutor no room for any interest (substantial and peculiar or otherwise) in the issue of the trial."

[18] The first Respondent has not really articulated the kind of injury, if any, that she has suffered as a result of the death of her ex-husband. Be that as it may, whatever injury she may have suffered cannot be one that falls within the purview of s 7(1)(a). She not only decided to suffer the injury, but she also took steps to ensure that she inflicts that injury upon herself. In other words we are dealing with a purposefully self-inflicted injury. This is destructive of any possibility for the existence of a ‘substantial and peculiar interest’. For these reasons, I am satisfied that the first Respondent has no locus standi to conduct the private prosecution and that she should and will be interdicted from doing so. The last issue is that of costs.

Costs

[19] The Applicant seeks a costs order against both the first and the second Respondents. I asked Mr Pistor, for the Applicant, why I should make a costs order against the first Respondent’s counsel, so to speak. His answer was that the second Respondent chose to oppose the application when he should have just ignored it. In my view the Applicant left the second Respondent with no choice but to oppose the application. I say so because the Applicant asked for costs against him irrespective of whether he would oppose or not. The position would probably have been different had the Applicant sought an order for costs against the second Respondent only in the event of opposition, and notwithstanding this, the second Respondent opposed the application. I see no compelling reason why I should order the second Respondent to pay costs to the Applicant and I will, therefore, make no such order.

Order

[20] In the result, I make the following order:

“1. The first and second Respondents are interdicted from proceeding with the private prosecution against the Applicant in respect of the murder of the late ELLIAS MOLAHLEGI KGAFELA; and

2. The first Respondent is directed to pay the costs of this application to the Applicant.”

_________________

M.T.R. MOGOENG

JUDGE PRESIDENT OF THE HIGH COURT

APPEARANCES

DATE OF JUDGEMENT : 09 DECEMBER 2004

COUNSEL FOR THE APPLICANT : ADV J.H.F. PISTOR

ATTORNEYS FOR THE APPLICANT : SMIT STANTON INC.

ATTORNEYS FOR THE 1ST & 2ND RESPONDENTS : PHANCY MAGANO & PARTNERS

ATTORNEYS FOR THE 3RD RESPONDENTS : THE DIRECTOR OF PUBLIC PROSECUTIONS