This is a matter on appeal from a decision of the High Court handed down on 19 October 2011. It concerns the powers of the Attorney-General, the respondent, in the specific context of private prosecutions by corporate entities.
The factual circumstances of this matter are common cause.
In early 2010, four senior employees of the appellant were charged with a massive fraud of about US$1,700,000 perpetrated against the appellant.
Because of the respondent's position that there was overwhelming evidence against the accused persons, all of them were initially denied bail. At a later stage, the charges against them were withdrawn before plea following a directive by the respondent that there was insufficient evidence to prosecute.
Consequently, the appellant sought a certificate nolle prosequi which was withheld and declined by the respondent.
The appellant then applied to the High Court, on review, for that decision to be set aside as being both unlawful and grossly irrational.
The High Court held, that, a private company, as distinct from a private individual, had no locus standi to institute a private prosecution.
The learned judge a quo adopted, and applied, the position taken by the South African Appellate Division in interpreting the equivalent statutory provisions in South Africa.
He accordingly decided, that, it was not necessary to determine the further question as to the respondent's discretion to withhold his certificate.
The first issue, on appeal, is whether or not a private company is entitled to bring a private prosecution.
The second issue, which is inter-related with the first, is whether the respondent has the discretion to issue or withhold his certificate nolle prosequi where he declines to prosecute at the public instance.
GOVERNING STATUTORY PROVISIONS
Part III of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CP&E Act) regulates the institution of private prosecutions. Section 13 confers the right to prosecute in the following terms:
“In all cases where the Attorney-General declines to prosecute for an alleged offence, any private party, who can show some substantial and peculiar interest in the issue of the trial arising out of some injury which he individually has suffered by the commission of the offence, may prosecute, in any court competent to try the offence, the person alleged to have committed it.”
Persons, other than those referred to in section 13 of the Criminal Procedure and Evidence Act, who are entitled to prosecute, are identified in section 14 of the Criminal Procedure and Evidence Act:
“The following shall possess the right of prosecution –
(a) A husband, in respect of offences committed against his wife;
(b) The legal guardians or curators of minors or mentally disordered or defective persons, in respect of offences committed against their wards;
(c) The wife or children or, where there is no wife or child, any of the next-of-kin of any deceased person, in respect of any offence by which the death of such person is alleged to have been caused;
(d) Public bodies and persons, on whom the right is specially conferred by statute, in respect of particular offences.”
Section 16 of the Criminal Procedure and Evidence Act deals with the grant of certificates nolle prosequi by the Attorney General and their production for the purpose of criminal proceedings. It provides as follows:
“(1) Except as is provided by subsection (2), it shall not be competent for any private party to obtain the process of any court for summoning any party to answer any charge, unless such private party produces to the officer authorised by law to issue such process a certificate signed by the Attorney-General that he has seen the statements or affidavits on which the charge is based and declines to prosecute at the public instance, and, in every case in which the Attorney General declines to prosecute, he shall, at the request of the party intending to prosecute, grant the certificate required.
(2) When the right of prosecution referred to in this Part is possessed under any statute by any public body or person, in respect of particular offences, subsection (1) shall not apply.”
ORIGINS OF RIGHT OF PRIVATE PROSECUTION
Before addressing the status of corporate entities in the prosecutorial context, it seems necessary to delineate the historical background to private prosecutions generally.
As was recognised and restated in section 89 of the former Lancaster House Constitution:
“Subject to the provisions of any law for the time being in force in Zimbabwe relating to the application of African customary law, the law to be administered by the Supreme Court, the High Court, and by any courts in Zimbabwe subordinate to the High Court shall be the law in force in the Colony of the Cape of Good Hope on 10th June 1891 as modified by subsequent legislation having in Zimbabwe the force of law.”
According to DUGARD: South African Criminal Law and Procedure – Vol. IV Introduction to Criminal Procedure (1977)…, the Roman-Dutch law of criminal procedure and evidence remained in force at the Cape until the early 19th century.
Following various alterations to the structure of the courts in the Cape, this adjectival law was radically anglicised by Ordinance No.40 (1828) and Ordinance No.72 (1830) to form the foundations of our modern law (ibid. at p25).
As regards the institution of prosecutions, the British Government accepted that the conditions prevailing in the Cape did not permit the unmodified adoption of the English system of private prosecution. Accordingly, the right of prosecution was vested in the Attorney-General, but, where he declined to prosecute, a private individual might prosecute in respect of an injury to himself or to someone under his care (ibid. at p25).
In principle, therefore, the law governing private prosecutions, both in Zimbabwe and in South Africa, does not originate in the Roman-Dutch law but is derived from the English common law.
In England, during the 17th and 18th centuries, the system of criminal procedure that prevailed was predominantly one of private prosecutions. No public official was designated as a public prosecutor, either locally or nationally, although the local justice of the peace sometimes assumed that role.
In essence, private citizens were responsible for preserving the peace and maintaining law and order. Crimes were regarded as being committed, not against the State, but against a particular individual or family. Thus, the prosecution of almost all criminal offences was usually initiated and conducted by the victim or his or her relative.
The distinctive feature of the common law was that it was not a privilege, but the duty, of the private citizen to preserve the peace and bring offenders to justice. Consequently, no authority was vested in the King to dictate if, and when, a private individual could institute criminal proceedings.
With the passage of time, King's attorneys were appointed to intervene in matters of particular interest to the King or to initiate and conduct prosecutions in his name. This led to the origin and evolution of the so-called law officers of the Crown, vested with the specific function of advising and litigating on behalf of the King.
The late 19th century saw the passage of the Prosecution of Offences Act 1879 which first introduced the office of Director of Public Prosecutions. However, this Act did not fundamentally undermine private prosecutions because public prosecutors enjoyed very limited authority.
Again, the successor Act of 1908 did not substantially increase the powers of public prosecutors.
It was only with the enactment of the Prosecution of Offences Act 1985 that England established an effective system of public prosecution through the Crown Prosecution Service. Even then, this Act continued to preserve a limited right of private prosecution.
RIGHT OF PRIVATE COMPANY TO PROSECUTE
The above historical synopsis demonstrates, that, the right of private prosecution originates in the reparation of individual injuries and the vindication of individual as opposed to corporate rights.
The interests that the right to prosecute is conceived to safeguard are manifold. They are certainly not confined to purely pecuniary loss or the kind of injury that might ordinarily be sustained by corporate entities in the normal course of their business.
This rationale is aptly and eloquently captured by Van Den HEEVER AJP in Attorney-General v Van der Merwe and Bornman 1946 OPD 197…,.:
“Prosecution is not primarily designed to recover compensation. I do not think, therefore, that the expression 'substantial and peculiar interest' was intended…, to convey only a pecuniary interest in respect of which the prosecutor may obtain compensation or restitution. The object of the phrase was clearly 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.
The interest the legislature had in mind may be pecuniary, but, may also be such that it cannot sound in money – such imponderable interests, for example, as the chastity and reputation of a daughter or ward, the inviolability of one's person or the persons of those dear to us.
Permission to prosecute in such circumstances was conceived as a kind of safety-valve.
An action for damages may be futile against a man of straw and a private prosecution affords a way of vindicating those imponderable interests - other than the violent and crude one of shooting the offender. The vindication is real: it consoles the victim of the wrong; it protects the imponderable interests involved by the deterrent effect of punishment, and it sets at naught the inroad into such inalienable rights by effecting ethical retribution. Finally, it effects atonement, which is a social desideratum.”
In the case of Salisbury Bottling Co. (Pvt) Ltd & Ors v Central African Bottling Co. (Pvt) Ltd 1958 (1) SA 750 (FC) all the parties involved were corporate entities.
Our Federal Supreme Court canvassed the right of private prosecution under section 19 of [Cap 28] (the predecessor to section 13 of the Criminal Procedure and Evidence Act [Chapter 9:07]) as an alternative remedy to the grant of damages or an interdict.
In that context, the court did not draw any specific distinction as between private individuals and companies. However, it did not consider or make any definitive ruling on the point presently under review.
The authority relied upon, and followed, by the court below, in rejecting the appellant's locus standi to prosecute, is the South African case of Barclays Zimbabwe Nominees (Pvt) Ltd v Black 1990 (4) SA 720 (AD).
The court in that case held, that, the phrase “private person” in section 7(1)(a) of the Criminal Procedure Act No.51 of 1977 (the equivalent of section 13 in the Criminal Procedure and Evidence Act [Chapter 9:07]), as read in the context of section 7 and the Act as a whole, should be interpreted as meaning only a natural person.
MILNE JA, delivering the unanimous decision of the Appellate Division, elaborated several reasons for arriving at that conclusion:
(i) The definitions of the word “private” in the Oxford Dictionary (2nd ed.) are indicative of natural rather than artificial characteristics (at 722E-F and 723B-C);
(ii) The reference to “some injury which he individually suffered” is peculiarly apposite in the case of natural persons (at 723C-G);
(iii) Section 8(1) of the 1977 Act (the equivalent of our section 14(d) of the Criminal Procedure and Evidence Act) draws a clear distinction between natural persons and corporate bodies (at 725A-B);
(iii) Section 10(2) of the 1977 Act, which requires the signature of the indictment, charge sheet or summons, specifically differentiates between a private prosecutor and a corporate body (at 725C-E); and lastly
(iv) The need to obviate any resort to self-help, as articulated in Attorney-General v Van der Merwe and Bornman 1946 OPD 197 underscores the point that “a corporate body, as such, has no human passions and there can be no question of the company, as such, resorting to violence” (at 726F-G).
Although, as was clearly recognised by the learned judge a quo, the South African and Zimbabwean statutes are broadly in pari materia, I think it necessary to highlight certain critical differences between them.
(i) First and foremost, section 7(1) of the South African Act confers the right to prosecute on “any private person…, either in person or by a legal representative”; section 13 of the Criminal Procedure and Evidence Act provides that “any private party…, may prosecute.”
(ii) Secondly, the right to prosecute under statute is exercisable in terms of section 8(1) of the South African Act by “any body upon which or person upon whom” such right is expressly conferred; by virtue of section 14(d) of the Criminal Procedure and Evidence Act, it is exercisable by “public bodies and persons on whom” it is specially conferred.
(iii) Thirdly, there is no equivalent in the Criminal Procedure and Evidence Act of section 10(2) of the South African Act which requires the signature of the indictment, charge sheet or summons by the “prosecutor or his legal representative.”
(iv) Fourthly, section 11(1) of the South African Act refers to the failure of “the private prosecutor” to appear on the day set down for trial; section 18(1) of the Criminal Procedure and Evidence Act refers to such failure by “the prosecutor, being a private party.”
Ultimately, the most fundamental distinction between the two statutes is the usage of “private person” in the South African Act as contrasted with the references to “private party” in the Criminal Procedure and Evidence Act.
The word “person” in its principal sense, is defined in The Shorter Oxford English Dictionary 3rd ed. 1978 as “an individual human being; a man, woman, or child”. However, in its legal sense, it is defined to mean “a human being (natural person) or body corporate or corporation (artificial person), having rights or duties recognised by law.”
Again, in the legal context, the word “party” is defined as “each of two or more persons (or bodies of people) that constitute the two sides in an action at law, a contract, etc.”
In my view, these definitions, coupled with the differences that I have highlighted as between the South African and Zimbabwean statutes, tend to diminish the persuasive authority of the Appellate Division's otherwise cogent reasoning in Barclays Zimbabwe Nominees (Pvt) Ltd v Black 1990 (4) SA 720 (AD).
In England, as I have stated earlier, the Prosecution of Offences Act 1985 [Cap 23] now provides the regulatory framework for a comprehensive system of public prosecution.
Section 1 of this Act establishes the Crown Prosecution Service consisting of the Director of Public Prosecutions, Crown Prosecutors, and other subordinate staff.
In terms of section 3, the Director of Public Prosecutions, acting under the superintendence of the Attorney-General, is charged with the duty of, inter alia, taking over the conduct of all criminal proceedings instituted on behalf of any police force, as well as instituting criminal proceedings in important or difficult cases or where it is otherwise appropriate to do so.
In any event, section 6 explicitly preserves the right of private prosecution as follows:
“(1) Subject to subsection (2) below, nothing in this Part shall preclude any person from instituting any criminal proceedings or conducting criminal proceedings to which the Director's duty to take over the conduct of proceedings does not apply.
(2) Where criminal proceedings are instituted in circumstances in which the Director is not under a duty to take over their conduct, he may nevertheless do so at any stage.”
Prior to 1985, the importance of the private right to prosecute is illustrated by the reliance placed upon it by LORD WOOLF CJ in R (Hunt) v Criminal Cases Review Commission [2001] QB 1108 at para 20:
“Great importance has always been attached to the ability of an ordinary member of the public to prosecute in respect of breaches of the criminal law.”
The continuing survival of that right, to the extent provided for by section 6 of the 1985 Act, was vouchsafed by the House of Lords in Jones v Whalley [2007] 1 AC 63.
Any judicial curtailment of the right was not readily countenanced. As was observed by MITTING J in R (Ewing) v Davis [2007] EWHC 1730 (Admin) at para 23:
“…, if the right of private prosecution is to be taken away or subjected to limitation, it is for Parliament to enact and not for the courts, by decision, to achieve.”
The position of corporate entities in England is no different.
That the right of private prosecution can be exercised by a corporate body was confirmed by the Divisional Court in R (Gladstone PLC) v Manchester City Magistrates Court [2005] 1 WLR 1987.
More recently, the correctness of that position was re-affirmed by the Court of Appeal and the Supreme Court in a case involving the Financial Service Authority (the FSA).
The central issue in that case was whether the Financial Service Authority (the FSA) had the power to prosecute offences other than those referred to in sections 401 and 402 of the Financial Services and Markets Act 2000.
The Financial Service Authority (the FSA) contended, that, as a body corporate with legal personality, it had the common law power to bring prosecutions in respect of other offences.
The Financial Service Authority (the FSA) is a company limited by guarantee, incorporated in June 1985. The Memorandum and Articles of Association of the FSA express its objects and powers in broad terms.
The Act of 2000 did not create the Financial Service Authority (the FSA) or turn it into a statutory corporation, but, assumed its existence as a body corporate.
The Court of Appeal (Criminal Division), in R v Rollins and McInerney [2009] EWCA (Crim) 1941, rejected the contention, that, sections 401 and 402 of the Act, together, created a complete regime of offences that the Financial Service Authority (the FSA) could prosecute. It was held by RICHRADS LJ, at para 30:
“For our part, we can see no reason why the general right of private prosecution should not be enjoyed by the FSA. The right is not excluded by FSMA 2000 or any other statutory provision to which our attention has been drawn, and the powers conferred on the FSA, by its Memorandum of Association, are easily wide enough to cover the institution of criminal proceedings within the scope of its objects.”
The Court of Appeal accordingly concluded, that, the Financial Service Authority (the FSA) did have the power to prosecute offences beyond those referred to in sections 401 and 402 of the Act.
This decision was upheld on appeal to the Supreme Court in R v Rollins [2010] UKSC 39.
It was held, that, a corporation enjoyed the same power to prosecute as did any individual under the common law right of private prosecution. Sir JOHN DYSON SCJ, delivering the judgment of the court, enunciated this position as follows, at paras 8-9:
“Every person has the right to bring a private prosecution: see, for example Gouriet v Union of Post Office Workers [1978] AC 435, 497H per Lord Diplock. The right to bring private prosecutions has been expressly preserved by section 6 of the Prosecution of Offences Act 1985….,.
Nothing in section 6(1) excludes bodies corporate from the definition of 'any person'.
A corporation may therefore bring a prosecution provided that it is permitted to do so by the instrument that gives it the power to act. As Lord Mance noted in Jones v Whalley [2007] 1 AC 67 at para 38, private prosecutions 'may be initiated by private bodies such as high street stores, by charities such as NSPCC and RSPCA, or by private individuals….,.'”
For these reasons, the broad prosecutorial right of the Financial Service Authority (the FSA) was confirmed at paras 11-14:
“The general position, therefore, is that the FSA has always been able to bring any prosecution subject to statutory restrictions and conditions and provided that it is permitted to do so by its Memorandum and Articles of Association. Most statutes which create offences do not specify who may prosecute or on what conditions. Typically, they simply state that a person who is guilty of the offence in question shall be liable to a specified maximum penalty, it being assumed that anybody may bring the prosecution….,.
The general position before the enactment of FSMA was that the FSA had the power of a private individual to prosecute, provided that this fell within the scope of its objects and prosecution was not precluded or restricted by the terms of the relevant statute.”
Turning to the relevant provisions of the Criminal Procedure and Evidence Act, I would accept that some of the phraseology employed in section 13 of the Criminal Procedure and Evidence Act, in particular, the reference to “some injury which he individually has suffered” strongly supports the proposition that the right to prosecute conferred by that provision is confined to natural as opposed to artificial persons.
On the other hand, the references to “public bodies and persons” and “public body or person” in sections 14 and 16 of the Criminal Procedure and Evidence Act respectively, suggest otherwise.
The term “private party” itself, as used in Part III of of the Criminal Procedure and Evidence Act, is defined in section 12, in a fashion that is plainly tautologous and unhelpful, to mean:
“a person authorized by section thirteen or fourteen to prosecute any offence.”
In the context of the Criminal Procedure and Evidence Act as a whole, section 2 contemplates a broad definition of “person” in the following terms:
“'person' and 'owner' and other like terms, when used with reference to property or acts, include corporations of all kinds, and any other association of persons capable of owning or holding property or doing acts, and they also, when relating to property, include any department of the State.”
A broader connotation of the words under review is further supported by section 3(3) of the Interpretation Act [Chapter 1:01] which provides that in every enactment:
“'person' or 'party' includes –
(a) Any company incorporated or registered as such under an enactment; or
(b) Any body of persons, corporate or un-incorporated; or
(c) Any local or other similar authority.”
Also relevant for present purposes is section 9 of the Interpretation Act which prescribes rules as to gender and number as follows:
“(1) Unless the context otherwise requires, words importing female persons include male persons and juristic persons and words importing male persons include female persons and juristic persons.
(2) Words in the singular include the plural and words in the plural include the singular.”
One of the paramount principles of statutory construction is that the law should not be subject to casual change.
As was succinctly put by LORD DEVLIN in National Assistance Board v Wilkinson [1952] 2 QB 648:
“It is a well-established principle of construction, that, a statute is not to be taken as effecting a fundamental alteration in the general law unless it uses words that point unmistakably to that conclusion.”
BENNION: Statutory Interpretation…, elaborates the principle against casual change as follows:
“It is a principle of legal policy, that, law should be altered deliberately rather than casually, and that Parliament should not change either common law or statute law by a sidewind, but only by measured and considered provision. In the case of common law, or Acts embodying common law, the principle is somewhat stronger than in other cases.
It is also stronger the more fundamental the change is.
The court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislator intended to observe this principle. The court should therefore strive to avoid adopting a construction which involves accepting that Parliament contravened the principle.”
Having regard to the English authorities cited above, it is clear that the common law right of private prosecution was not confined to natural persons, but extended, as well, to juristic and artificial entities.
That common law right migrated to the Cape Colony through Ordinance No.40 (1828) and Ordinance No.72 (1830) and remained intact until 10 June 1891, at which stage it became an integral part of our law (cf. section 89 of the former Constitution).
The critical question is whether the right of private prosecution, as embodied in statute, has been modified by the Criminal Procedure and Evidence Act (or its predecessors) so as to exclude private corporations from its ambit.
The governing rule of statutory interpretation dictates, that, the provisions of Part III of the Criminal Procedure and Evidence Act should be construed, insofar as is consistent with their language and context, so as to preserve the common law components of the right to prosecute rather than to diminish or extinguish them.
I do not perceive, in these provisions, any clear or positive legislative intention to alter pre-existing rights or to constrict the common law position relative to corporations.
This interpretation is fortified by the reality that a company is, in essence, an association of persons and therefore should, albeit subject to its obvious physical limitations, enjoy the same rights and privileges as the individual members comprising it - including the right of prosecution.
The fact that it is devoid of human passions and has no personal interests to protect should not, in principle, detract from that right.
Its interests may be of a purely material or pecuniary character, but, they constitute a proper basis for the right to prosecute.
This was clearly recognised in Attorney-General v Van der Merwe and Bornman 1946 OPD 197…, and in Levy v Benatar 1987 (1) ZLR 120 (S)…,.
To answer the question posed above, it seems to me that a liberal and inclusive construction of section 13 of the Criminal Procedure and Evidence Act accords not only with the definition of “person” and “party” in section 2 of that Act but also with the broad definition of those terms in section 3(3) of the Interpretation Act.
It also accords with the rule of interpretation prescribed by section 9(1) of the Interpretation Act, viz. that words importing male persons include female persons and juristic persons.
Moreover, this construction is neither inconsistent with the context of section 13 of the Criminal Procedure and Evidence Act nor does it lead to any absurdity.
I accordingly take the view, that, the right of private prosecution conferred by that provision vests in natural as well as artificial persons - including private corporations.
