TELECEL ZIMBABWE (PVT) LTD v ATTORNEY-GENERAL 2011 (2) ZLR 310 (H)

Flynote

Criminal procedure — private prosecution — who may prosecute — whether a company which has suffered loss may bring private prosecution

Headnote

The applicant, a private company, discovered a potentially massive fraud perpetrated against it with prejudice of around US$1 700 000 and reported the matter to the police. The police carried out investigations and arrested four persons, two of whom were the company's employees. The four accused persons were charged with fraud. Upon completion of police investigations and the appearance of the suspects in court, the respondent's office withdrew the charges against all the four accused persons before plea, indicating that the respondent's directive was that there was insufficient evidence against the four of them. The applicant then decided to mount a private prosecution. It instructed its legal practitioners to request from the respondent a certificate signed by him that he has seen the statements and affidavits on which the charge of fraud is based and declined to prosecute at the public instance. The respondent refused to issue a certificate of nolle prosequi on the grounds that there was insufficient evidence. The applicant then brought an application to compel the respondent to issue the certificate, arguing that the respondent had no discretion. The respondent raised a point in limine that the applicant, as a private person, had no locus standi to launch a private prosecution.

Held, that a "private party" is defined in s 12 of the Criminal Procedure and Evidence Act [Chapter 9:07] as a person authorised under s 13 or s 14 to prosecute any offence. Under s 13, 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 bring a private prosecution. Various other persons (such as a husband, in respect of an offence committed against his wife) are specified under s 14, although the applicant would not fall into any of those categories. The question was whether a company could be classed as a "private party". In terms of s 2 of the Act and s 3 of the Interpretation Act [Chapter 1:01], the words "person" and "party" would include a company.

Held, further, that the normal dictionary definitions of the phrase "private person" mean an individual and the reference to an injury which "he individually suffered" is a potent pointer to the fact that the legislature intended to refer only to natural persons. The use of the word "he" is another consideration, as it is certainly not permissible usage to speak in English of an injury which "he suffered" when referring to a company. Section 18(1) of the Act envisages an appearance in person by the private prosecutor.

Held, further, that prosecution is not primarily designed to recover compensation. The expression "substantial and peculiar interest" is not intended to convey only a pecuniary interest in respect of which theprosecutor may obtain compensation or restitution. The object of the phrase is 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 and to prevent injured parties from taking the law into their own hands. A corporate body as such has no human passion and there can be no question of the company, as such, resorting to violence.

Held, further, that there may also be practical difficulties in a private company exercising the right of private prosecution. Does it do so on the recommendation of its directors, the majority shareholders or are minority interests also to be taken account of? What if those interests conflict, as they so often do? How could we accept a death penalty carried out on the basis of a company private prosecution instituted on a split majority decision? The fact that corporate bodies have better resources to conduct private prosecutions than individuals does not necessarily mean that they should be allowed to do so at a policy level. It may, in fact, point to a danger which opening up private prosecutions to private companies may pose to the general public precisely because of the vast resources that private corporations, various interest organizations, political parties, etc, command.