Telecel Zimbabwe (Pvt) Ltd v The Attorney-General of Zimbabwe N.O.

HH 233-2011
                                                                                   HC 2744/10
TELECEL ZIMBABWE (PVT) LTD
versus
THE ATTORNEY-GENERAL OF ZIMBABWE N.O.


HIGH COURT OF ZIMBABWE
HLATSHWAYO J
HARARE, 19 October 2011


Opposed Application

Mr. G.V. Mamvura, for the applicant
Mr. C Mutangadura, for the respondent


       HLATSHWAYO J:          Two questions arose for decision in this matter; firstly, whether
a private company is entitled to bring a private prosecution and, secondly, whether the

Attorney-General has discretion to issue or withhold the certificate nolle prosequi where he
declines to prosecute at the public instance.        The questions arose in the following
circumstances.
       The applicant, a private company incorporated in terms of the laws of Zimbabwe and
focused on telecommunications, discovered a potentially massive fraud perpetrated against it

with prejudice of around US$1 700 000 and reported the matter to the police.        The police
carried out investigations under CID serious frauds and identified two employees of the
applicant as suspects; Charles Mapurisa, the Regional Sales Manager and Naquib Omar, the
Commercial Director. The police also arrested the Managing Director of Oxygon Investments
(Private) Limited, Jane Mutasa and her personal assistant, Caroline Gwinyai. The four
accused persons were charged with fraud involving recharge cards and starter packs valued at
US$ 1 700 000.00.
       Initially, the accused persons were denied bail on the basis that the prima facie
evidence against them was very strong and that the fourth accused, Naquib Omar, had not
been apprehended then. However, they were subsequently all released on bail, including the
fourth accused, who had subsequently surrendered himself to the police.
       Upon completion of police investigations and the appearance of the suspects in court,
the Respondent’s office withdrew 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
2
HH 233-2011
HC 2744/10

practitioners Messrs Scalen & Holderness to request from respondent a certificate signed by
him that he has seen the statements and affidavits on which the charge of fraud is based and
declines to prosecute at the public instance.
         In response, the respondent wrote a letter to the Applicant’s legal practitioners, the
relevant part of which reads:
         “Kindly note that I have read the witnesses’ statements in the police docket and I have
         satisfied myself that the evidence therein does not establish a criminal offence against
         the four suspects. In the circumstances, I find it contra bonos mores for me to grant
         my certificate in this matter. In essence therefore, I withhold my certificate of Nolle
         Prosequi and decline to issue the same.”

         What followed was quite some bad-tempered litigation, which spilt unnecessarily into
the administrative processing of the matter. The applicant immediately launched a terse court
application for review of the respondent’s decision arguing that the respondent had no
discretion whatsoever where he has declined to prosecute but must issue the certificate to a
would-be private prosecutor. Furthermore, the applicant charged that “the respondent’s
decision that the evidence in the docket does not establish a criminal offence against the four
suspects is so devoid of logic that no reasonable Attorney-General properly applying his
mind could come to such a decision considering that at the accused persons’ initial court
appearance the remand magistrate refused to admit them to bail on the ground that the
evidence against them was overwhelming and they were likely to abscond if admitted to
bail”.
         In an equally testy opposing affidavit, the respondent maintained he had such
discretion and that the applicant could not place much on the preliminary finding by the
remand magistrate as the bail decision was made without hearing evidence or seeing the
docket. In the midst of all this vituperation, the respondent raised a point in limine, that the
applicant being a private person has no locus standi to institute a private prosecution, a point
which could have assisted in curtailing proceedings had it been given due attention at this
stage.
         The applicant did not bother to file a replying affidavit, but straight away lodged its
heads of argument. The effect of not filing a replying affidavit is that the court must then
accept as correct the unchallenged statements in the opposing affidavit, for example
concerning the attribution of the fraud where the respondent states thus:
         “No issues arise herein save to state that the docket alleges that a shortfall of US$1
         725 875.00 was detected of which US$750 000.00 was traceable to Oxygon
                                                                                                 3
                                                                                       HH 233-2011
                                                                                        HC 2744/10

       Investments (Pvt)Ltd in respect of Telecel lines valued at US$300 000.00 and
       US$450 000.00 in respect of recharge cards. In essence, it is extravagant to aver that
       “most of the stock was released to Oxygon Investments (Pvt)Ltd” as that is not
       factually true according to information in the docket.”

       Now, concerning the point in limine raised by the respondent that the applicant, being
a company and not a private person, has no locus standi to institute a private prosecution,
reference must be made to section 13 of the Criminal Procedure and Evidence Act [Cap
9:07] (hereinafter called “the CP&E Act”) which provides as follows:


  “13 Private prosecution on refusal of Attorney-General to prosecute
      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.” (Emphasis added).

        “Private party” is then defined in this part of the statute as “a person authorized by
section thirteen or fourteen to prosecute any offence”. Section fourteen provides, thus:

       14 What other persons entitled to prosecute
       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.

        So far, one can say that a private company, such as the applicant, would definitely not
qualify under section fourteen, but may qualify under section thirteen depending on how that
provision is interpreted. In terms of the general definition section of the CP&E Act:

       “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.

       The Interpretation Act [Cap 1:01] defines person in the following terms:

       “person” or “party” includes—
       (a) any company incorporated or registered as such under an enactment; or
       (b) any body of persons, corporate or unincorporated; or
       (c) any local or other similar authority.
4
HH 233-2011
HC 2744/10

        The above definitions show that the words “person” or “party” are used
interchangeably and include a private company. The question, therefore, is whether the
qualification of these terms by the word “private” changes their usual meaning in the context
of the private prosecution provisions of the CP&E Act. The applicant submits that it does not
and the respondent maintains it does.

       In the South African case of Barclays Zimbabwe Nominees (Pvt)Ltd v Black 1990 (4)
SA 720 (AD) it was held that a company is not a “private” person as intended by s.7 of the
Criminal Procedure Act 51 of 1977 and therefore does not have locus standi to institute a
private prosecution. Mr. Mamvura, for the applicant, sought to distinguish the South African
case authority from the present matter on the basis that the South African legislation uses the
words “private person” whereas the Zimbabwean Act provides for a “private party” as having
the right to prosecute, but, as shown above and is implicit in the applicant’s own heads of
argument, the words “party” and “person” are used interchangeably by the legislature.
Section 12 of the CP&E Act states that the words “private party” in the context of private
prosecutions mean “a person authorized by section thirteen or fourteen to prosecute any
offence”. (emphasis added) Thus, the respective South African and Zimbabwean Acts are in
pari materia. According to the Barclays Zimbabwe Nominees case (supra), a company
cannot conduct a private prosecution for reasons expounded in that case, which are
summarized below, with comments on the equivalent Zimbabwean provisions:
   a) In the Barclays case, the court noted that the Oxford Dictionary (2 nd edition) Volume
       xii at page 515 defines “Private” in the context “of a Person”, and noted that the
       illustrations made by the editors of the use of the words in this sense refer to “private
       men” or “private individual” as if “private persons were synonymous with them”.


   b) Reference to an injury which “he individually suffered”(compare section 13 of the
       Zimbabwean Act) was held to be a potent pointer to the fact that the legislature
       intended to refer only to natural persons since this “is language perculiarly apposite
       in the case of natural persons”.

   c) Another consideration was the use of the word “he” in respect of an injury suffered by
       a private prosecutor. The use of the word “he”, it was held, “is certainly not
       permissible usage to speak in English of an injury which “he suffered” when
       referring to a company”.
                                                                                            5
                                                                                  HH 233-2011
                                                                                   HC 2744/10

    d) The requirement for the private prosecutor to appear in person indicates that a human
         being, and not a company, is the envisaged private prosecutor cannot appear in
         person. The use of the pronoun “his” was held to suggest a natural person. (see
         section 18(1) of the CP&E Act)

    e) It was also held in Attorney-General v Van der Merwe and Bornman 1946 OPD 197
         that the rationale behind establishing private prosecutions was not for recovery of
         pecuniary interest but to protect injured parties from taking the law into their own
         hands:
    f)
         “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”.


         In this context it was held in the Barclays case that “a corporate body as such has no
human passion and there can be no question of the company, as such, resorting to violence”.
And, of course, there is the time-honoured aphorism which one may take liberties with and
summarize as that ‘a company has no soul to damn and no butt to kick’. Thus, lacking those
intrinsically humane qualities, it would be stretching the language of the legislature too far to
hold that a private company was expected to exhibit the same “imponderable interests” as
those outlined in s.14 (a) to (c) of the Act.
         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 interest
conflict as they so often do? How do we accept a death penalty carried out on the basis of a
company private prosecution instituted on a split majority decision with a vociferous minority
in strong opposition and directors at sixes and sevens?
         I am satisfied that the Barclays Zimbabwe Nominees decision based as it was on a
statute in pari materia with our CP&E Act, is highly persuasive authority for holding that a
6
HH 233-2011
HC 2744/10

private company cannot institute a private prosecution. In further heads of argument, it was
suggested on behalf of the applicant that since corporate bodies have better resources to
conduct private prosecutions than individuals, they should be allowed to do so at a policy
level. However, I doubt the merit of such a submission. It certainly does not assist in the
interpretation of the provisions in issue. 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, a specter which has justified the various restrictions imposed on the right to
institute a private prosecution even by individuals, the risk so ably noted by Van der Heever
AJP (as he then was) in Attorney-General v Van der Merwe and Bornman (supra) thus:


       “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.” p.201


       In the premises, therefore, this application for review cannot succeed. If the applicant
has no locus standi to institute a private prosecution as I have found, there is no need to go on
to examine whether the respondent has discretion to issue the nolle prosequi certificate. As
far as costs are concerned, I am not persuaded that there is a sufficient basis from departing
from the general rule that costs, on the ordinary scale and not on the punitive scale as prayed
by the respondent, should follow the outcome, the intemperate pleadings, which were evident
on both sides it must be noted, notwithstanding.
       This application is accordingly dismissed with costs.




Scanlen & Holderness, Applicant’s legal practitioners
The Attorney-General’s Office, Respondent’s legal practitioners
          7
HH 233-2011
 HC 2744/10