.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable

Case No: 20781/2014
In the matter between:

NATIONAL SOCIETY FOR THE PREVENTION

APPELLANT
OF CRUELTY TO ANIMALS

and

MINISTER OF JUSTICE AND CONSTITUTIONAL

FIRST RESPONDENT
DEVELOPMENT

NATIONAL DIRECTOR OF PUBLIC
SECOND RESPONDENT
PROSECUTION

Neutral citation:
National Society for the Prevention of Cruelty to Animals v
Minister of Justice and Constitutional Development (20781/2014)
[2015] ZASCA 206 (4 December 2015)

Coram:
Maya DP, Petse, Saldulker and Mbha JJA and Van der Merwe
AJA

Heard:
19 November 2015
Delivered
4 December 2015
Summary:
Constitutional law - constitutional challenge to Act s 7(1)(a) of
the Criminal Procedure Act 51 of 1977 - whether the section is
unconstitutional insofar as it allows only private persons to
institute private prosecutions and not juristic persons - whether
the differentiation is rationally connected to a legitimate
governmental purpose.

_________________________________________________________________
ORDER
_________________________________________________________________
On appeal from: Gauteng Division of the High Court, Pretoria (Fourie J sitting as
court of first instance).
The appeal is dismissed.
_________________________________________________________________
JUDGMENT
_________________________________________________________________
Saldulker JA (Maya DP, Petse and Mbha JJA and Van Der Merwe AJA
concurring):

[1] This appeal concerns a constitutional challenge to s 7(1)(a) of the Criminal
Procedure Act 51 of 1977, (the CPA), to the extent that it allows only a private
person  to institute a private prosecution and not a juristic person. The Gauteng
Division of the High Court, Pretoria, (Fourie J), dismissed an application by the
appellant, the National Society for the Prevention of Cruelty to Animals, against the
first respondent, the Minister of Justice and Constitutional Development (the
Minister), and the second respondent, the National Director of Public Prosecutions

(the NDPP) to declare the provisions of s 7(1)(a) of the CPA invalid and
unconstitutional to the extent that they prohibit juristic persons from instituting and
conducting private prosecutions merely because they are not private persons.

[2] The appellant is a juristic person, created in terms of s 2 of the Societies for
the Prevention of Cruelty to Animals Act 169 of 1993, (the SPCA Act). The objects of
the appellant are set out in s 3 of the SPCA Act and include:
(i) determining, controlling and co-ordinating the policies and standards of societies,
in order to promote uniformity;
(ii) preventing the ill-treatment of animals by promoting their good treatment by man;
(iii) taking cognisance of the application of laws affecting animals and societies and
making representations in connection therewith to the appropriate authority;
(iv) doing all things reasonably necessary for or incidental to the achievement of the
aforegoing objectives.

[3] The appellant is managed and controlled by a board consisting of directors
elected in accordance with a constitution and a director nominated by the minister.1
In terms of s 6 (1) of the SPCA Act, the appellant shall for the purposes of s 82 of the
Animal Protection Act 71 of 1962 (the Animal Protection Act) be a society for the
prevention of cruelty to animals. The Animal Protection Act criminalises certain acts
of cruelty to animals. The duties, powers and functions of the appellant are set out in
s 6 of the SPCA Act, which include the appointment of suitably qualified persons as
inspectors, conferring upon inspectors certain functions and powers which the
appellant may deem necessary, including the power to enter premises, search and
seize animals, material, substances or other articles on such premises.

[4] The Minister is charged with the administration of the Criminal Procedure Act
51 of 1977. The NDPP is cited in its representative capacity as head of the National
Prosecuting Authority (the NPA) responsible for the prosecution of crimes on behalf
of the State. The NPA is established in terms of the National Prosecuting Authority

1 In terms of s 1 of the SPCA Act which contains the definitions, reference to ‗Minister‘ means the
Minister of Agriculture.
2 Section 8 of the Animal Protection Act sets out the powers of officers of society for prevention of
cruelty to animals.

Act 32 of 1998 (the NPA Act) which established a single national prosecuting
authority in compliance with s 179 of the Constitution.3

[5] The respondents did not oppose the appellant‘s application in the court below.
They, however, filed ‗explanatory affidavits‘ and made submissions before us, akin to
that of an amicus curiae. I will return to this aspect later.

The appellant’s contentions
[6] The appellant seeks an order declaring s 7(1)(a) of the CPA unconstitutional.
Its case is summarised as follows: s 7(1)(a) differentiates between natural persons
on one hand and juristic persons on the other hand. There is no good reason for
differentiating between the two classes of persons. As a result, the differentiation
fails to serve a legitimate governmental purpose and is therefore irrational and non-
compliant with the rule of law as an articulated standard in s 1(c) of the Constitution.
Further, the differentiation fails to render both natural and juristic persons equal
before the law and specifically denies juristic persons equal benefit of the law
rendering the impugned provision non-compliant with the articulated standard in s
9(1) of the Constitution. The consequential  relief claimed in the notice of motion by
the appellant was to excise the words ‗private‘ and ‗individual‘ from the provisions of
s 7 (1)(a) of the CPA. However, during argument counsel for the appellant appeared
to be content with only the word ‗private‘ being excised from the section.

Background
[7] The appellant has, as stated, a policing function to prevent cruelty to animals.
During November 2010, the appellant was made aware of a religious ritual involving
a slaughtering of a camel as a sacrifice by a group of Islamic worshippers in Lenasia.
In compliance with its statutory obligations, an inspector of the appellant visited the
venue where the appellant contends the inspector witnessed the ‗cruel and
inhumane‘ treatment of the animal. To prevent the animal from suffering further, and

3 The NPA Act repealed the whole of the Attorneys-General Act 92 of 1992. Historically, South Africa
had attorneys-general (head of prosecution) at various divisions of the high courts. There was no
single national prosecuting authority, and the attorneys-general acted independently of each other.

‗in an act of compassion‘, the inspector shot the camel to relieve it of its misery. As
the inspector was of the opinion that the treatment of the camel by certain of the
worshippers constituted an offence in terms of the Animal Protection Act, the matter
was referred to the prosecuting authorities. According to the appellant, despite the
overwhelming evidence it furnished to the prosecutors, the prosecuting authority
declined to prosecute. The appellant‘s request for a certificate nolle prosequi (refusal
to prosecute) so that it could take up the criminal case and privately prosecute the
offenders, was refused by the prosecutor. The reason being that the appellant was a
juristic person and not a ‗private person‘ as required by s 7(1)(a) of the CPA. It is as
a result of this refusal, among others, by the public prosecutor, which may also arise
in the future, that the appellant seeks to have the impugned provision declared
unconstitutional.

[8] The statutory provisions regulating private prosecution have been in place for
almost 100 years. The provisions of s 7(1) of the CPA are framed in almost identical
terms to the old Criminal Procedure and Evidence Act 31 of 1917. They retain the
limitation that only a private person is allowed to institute a private prosecution and
read as follows:
‗(1) In any case in which a Director of Public Prosecutions declines to prosecute for an
alleged offence –
(a) 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;
(b) a husband, if the said offence was committed in respect of his wife;
(c) the wife or child or, if there is no wife or child, any of the next of kin of any deceased
person, if the death of such person is alleged to have been caused by the said
offence; or
(d) the legal guardian or curator of a minor or lunatic, if the said offence was committed
against his ward,
may, subject to the provision of section 9 and section 59(2) of the Child Justice Act,
2008, 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.‘

[9] Section 7(2) of the CPA, provides for the issuing of a certificate by the
prosecuting authority to the effect that he or she has perused the statements and
declines to prosecute on behalf of the State. The prosecuting authority is obliged to
furnish a certificate called nolle prosequi to someone who wishes to prosecute
privately. Section 9 provides for security to be deposited by a private prosecutor,
whereas s 10, read with s 12, determines the process and manner of a private
prosecution.

[10] Section 8 of the CPA regulates private prosecution by a ‗body‘ under statutory
right and reads:
‗(1) Any body upon which or person upon whom the right to prosecute in respect of any
offence is expressly conferred by law, may institute and conduct a prosecution in respect of
such offence in any court competent to try that offence.
(2) A body which or a person who intends exercising a right of prosecution under subsection
(1), shall exercise such right only after consultation with the attorney-general concerned and
after the attorney-general has withdrawn his right of prosecution in respect of any specified
offence or any specified class or category of offences with reference to which such body or
person may by law exercise such right of prosecution.
(3) An attorney-general may, under subsection (2), withdraw his right of prosecution on such
conditions as he may deem fit, including a condition that the appointment by such body or
person of a prosecutor to conduct the prosecution in question shall be subject to the
approval of the attorney-general, and that the attorney-general may at any time exercise with
reference to any such prosecution any power which he might have exercised if he had not
withdrawn his right of prosecution.‘

[11] In the context of the prevention of cruelty to animals, the Prevention of Cruelty
to Animals Act 8 of 1914 (the Prevention of Cruelty to Animals Act) applied. This Act
was repealed by the Animal Protection Act in 1962. Before its repeal, s 12 of the
Prevention of Cruelty to Animals authorised the society for the prevention of cruelty
to animals to privately prosecute offenders. Section 12 provided as follows:
‗(1) Any society for the prevention of cruelty to animals may, by any person authorised
thereto in writing under the hand of the chairman or secretary thereof, prosecute for any

offence against this Act and the provisions of any law relating to private prosecutions shall
apply to all such prosecutions.
(2) A magistrate may, by writing under his hand, authorise any officer of such a society to
exercise within his district all or any of the powers conferred by this Act upon a police officer
and in the exercise of such powers the officer of the society shall when required produce for
inspection such documents of authority. The magistrate may for good cause revoke any
such authority.‘
It appears therefore that historically, the predecessor of the appellant had the right
specially conferred by statute, to privately prosecute offenders. This power is not
conferred by the Animal Protection Act or the SPCA Act.

[12] The appellant is a public body carrying out its functions in the interest of the
public. In terms of s 6(2)(e) of the SPCA Act, the appellant has the power to defend
or institute legal proceedings connected with its functions, including such
proceedings in an appropriate court of law or prohibit the commission by any person
of a particular kind of cruelty to animals, and assist a society in connection with such
proceedings against it or by it. Thus, it is clear from the provisions of the SPCA Act,
that it does not confer on the council or the society the right to privately prosecute
any offender.

Constitutional challenge
[13] As stated above, the appellant contends that s 7(1)(a) of the CPA is
unconstitutional on the basis that it violates subsecs 1(c) and 9(1) of the Constitution.
Significantly, the appellant does not challenge the provisions of s 8 of the CPA. The
appellant asserts that the right to bring a private prosecution ought to be capable of
enforcement by any person, both a natural and a juristic person.

[14] The rule of law is a founding value entrenched in s 1(c) of the Constitution.  It
encapsulates the principle of legality and the requirement that the exercise of public
power may not be arbitrary but must be rationally connected to a legitimate
governmental purpose.

[15] For purposes of this enquiry, if the differentiation inherent in section 7(1)(a) of
the CPA fails to serve a legitimate governmental purpose then the differentiation is
irrational and falls foul of the rule of law. In Prinsloo v Van der Linde and another4 it
was held that when Parliament enacts legislation that differentiates between groups
or individuals it is required to act in a rational manner. The court said:
'In regard to mere differentiation the constitutional State is expected to act in a rational
manner. It should not regulate in an arbitrary manner or manifest "naked preferences'' that
serve no legitimate governmental purpose, for that would be inconsistent with the rule of law
and the fundamental premises of the constitutional State5. . . .

[16] The provisions of s 9(1) of the Constitution read: ‗[e]veryone is equal before
the law and has the right to equal protection and benefit of the law.‘ The test to
determine whether s 9(1) has been violated was set out as follows in Prinsloo:
‗[25] . . . [t]he purpose of this aspect of equality is, therefore, to ensure that the State is
bound to function in a rational manner. This has been said to promote the need for
governmental action to relate to a defensible vision of the public good, as well as to enhance
the coherence and integrity of legislation. In Mureinik's celebrated formulation, the new
constitutional order constitutes 'a bridge away from a culture of authority . . . to a culture of
justification.
[26] Accordingly, before it can be said that mere differentiation infringes s 8 it must be
established that there is no rational relationship between the differentiation in question and
the governmental purpose which is proffered to validate it. In the absence of such rational
relationship the differentiation would infringe s 8. But while the existence of such a rational
relationship is a necessary condition for the differentiation not to infringe s 8, it is not a
sufficient condition; for the differentiation might still constitute unfair discrimination if that
further element, referred to above, is present.‘

[17] In Glenister v President of the Republic of South Africa & others,6 the
Constitutional Court said:

4 Prinsloo v Van der Linde & another [1997] ZACC 5; 1997 (3) SA 1012 (CC) para 25.
5 See para 25.
6 Glenister v President of the Republic of South Africa & others [2011] ZACC 6; 2011 (3) SA 347 (CC)
para 55.

‗Under our Constitution, national legislative authority vests in Parliament.  However, in the
exercise of its legislative authority, ―Parliament is bound only by the Constitution, and must
act in accordance with, and within the limits of, the Constitution‖. But, like all exercise of
public power, there are constitutional constraints that are placed on Parliament. One of these
constraints is that ―there must be a rational relationship between the scheme which it adopts
and the achievement of a legitimate governmental purpose‖. Nor can Parliament act
capriciously or arbitrarily. The onus of establishing the absence of a legitimate governmental
purpose, or of a rational relationship between the law and the purpose, falls on the objector.
To survive rationality review, legislation need not be reasonable or appropriate.‘ (Footnotes
omitted.)

[18] In Weare & another v Ndebele NO & others7 after accepting the high court‘s
finding that s 9(1) can be applied to juristic persons, the court considered whether
differentiating between natural persons on the one hand and juristic persons on the
other was rationally connected to the legitimate aim by government of regulating
gambling. The court held that legislation which differentiated between classes of
persons was considered not to violate s 9(1) of the Constitution if it was rationally
linked to the achievement of a legitimate government purpose.

[19] Counsel for the appellant properly conceded that the regulation of private
prosecutions is a legitimate governmental purpose. Therefore, the question is
whether the provisions of s 7(1)(a) of the CPA are rationally connected to this
purpose. The rationality threshold is low. The connection must not be arbitrary but
must be based on a reason that does not have to be the most efficient or the only
reason. Put differently, the question is whether there is an acceptable reason for the
limitation of private prosecutions contained in s 7(1)(a). This question must be
answered within the context of the whole of s 7 and s 8 of the CPA, s 179 of the
Constitution and the provisions of the NPA Act.

[20] Section 179 of the Constitution reads:

7 Weare & another v Ndebele & others [2008] ZACC 20; 2009 (1) SA 600 (CC).

‗(1) There is a single national prosecuting authority in the Republic, structured in terms of an
Act of Parliament, and consisting of-
(a) a National Director of Public Prosecutions, who is the head of the prosecuting authority,
and is appointed by the President, as head of the national executive; and
(b) Directors of Public Prosecutions and prosecutors as determined by an Act of Parliament.
(2) The prosecuting authority has the power to institute criminal proceedings on behalf of the
state, and to carry out any necessary functions incidental to instituting criminal proceedings.
(3) National legislation must ensure that the Directors of Public Prosecutions -
(a) are appropriately qualified; and
(b) are responsible for prosecutions in specific jurisdictions, subject to subsection (5).
(4) National legislation must ensure that the prosecuting authority exercises its functions
without fear, favour or prejudice.
(5) The National Director of Public Prosecutions -
(a) must determine, with the concurrence of the Cabinet member responsible for the
administration of justice, and after consulting the Directors of Public Prosecutions,
prosecution policy, which must be observed in the prosecution process;
(b) must issue policy directives which must be observed in the prosecution process;
(c) may intervene in the prosecution process when policy directives are not complied with;
and
(d) may review a decision to prosecute or not to prosecute, after consulting the relevant
Director of Public Prosecutions and after taking representations within a period specified by
the National Director of Public Prosecutions, from the following:
(i) The accused person.
(ii) The complainant.
(iii) Any other person or party whom the National Director considers to be relevant.
(6) The Cabinet member responsible for the administration of justice must exercise final
responsibility over the prosecuting authority.
(7) All other matters concerning the prosecuting authority must be determined by national
legislation.‘

[21] In terms of s 32(1)(a) of the NPA Act, a member of the prosecuting authority
shall serve impartially and exercise, carry out or perform his or her powers, duties
and functions in good faith and without fear, favour or prejudice and subject only to
the Constitution and the law. Sections 21(1) and 22(2)(a) of the NPA Act provide that
the NDPP must determine prosecuting policy and issue policy directives, which must
be observed in the prosecuting process. In terms of s 22(2)(b) of the NPA Act, the
NDPP may intervene in any prosecuting process when policy directives are not
complied with. Section 22(2)(c) of the NPA Act provides that the NDPP may review a
decision to prosecute or not to prosecute after consulting the relevant Director of
Public Prosecutions and after taking representations, within the periods specified by
the NDPP of the accused person, the complainant and any other person or body
who the NDPP considers to be relevant.

[22] In Democratic Alliance & others v Acting National Director of Public
Prosecutions & others,8 this court held at paras 23 to 32 that in a constitutional state
such as South Africa there were by definition legal limits to the exercise of public
power: the government, like everyone else, was bound by and equal before the law.
The power to enforce the rule of law resided in the judiciary through its powers of
review under the rule of law, which extended beyond the confines of a review of
'administrative action' under the Promotion of Administrative Justice Act 3 of 2000
(PAJA). When it decided to discontinue a prosecution, the NDPP exercised a public
power which was subject to a rule of law review, even if it did not constitute
administrative action.
And at para 27 the court said:
‗While there appears to be some justification for the contention that the decision to
discontinue a prosecution is of the same genus as a decision to institute or continue a
prosecution, which is excluded from the definition of ―administrative action‖ in terms of s 1(ff)
of PAJA, it is not necessary to finally decide that question. Before us it was conceded on
behalf of the first and third respondents that a decision to discontinue a prosecution was
subject to a rule of law review. That concession in my view was rightly made. . . .‘

8 Democratic Alliance & others v Acting National Director of Public Prosecutions & others [2012]
ZASCA 15; 2012 (3) SA 486 (SCA).

[23] In National Director of Public Prosecutions & others v Freedom Under Law,9
this court held that the same policy considerations underlying the exclusion of a
decision to institute or to continue to prosecute from the ambit of PAJA applied to a
decision not to prosecute or to discontinue a prosecution.
At para 27 the court said:
‘(a) It has been recognised by this court that the policy considerations underlying our
exclusion of a decision to prosecute from a PAJA review are substantially the same as those
which influenced the English courts to limit the grounds upon which they would review
decisions of this kind.
(b) The English courts were persuaded by the very same policy considerations to impose
identical limitations on the review of decisions not to prosecute or not to proceed with
prosecution.
(c) In the present context I can find no reason of policy, principle or logic to distinguish
between decisions of these two kinds.
(d) Against this background I agree with the obiter dictum by Navsa JA in DA and Others v
Acting NDPP, that decisions to prosecute and not to prosecute are of the same genus, and
that, although on a purely textual interpretation the exclusion in s 1(ff) of PAJA is limited to
the former, it must be understood to incorporate the latter as well.
(e) Although decisions not to prosecute are — in the same way as decisions to prosecute —
subject to judicial review, it does not extend to a review on the wider basis of PAJA, but is
limited to grounds of legality and rationality.‘

[24] Thus, all decisions by the prosecuting authority to prosecute or not to
prosecute must be taken impartially, without fear, favour or prejudice. They must
also adhere to prosecuting policy and policy directives. It goes without saying that
the aim of prosecuting policy and policy directives must be to serve the interests of
justice for the benefit of the public in general. And decisions to prosecute or not to
prosecute may be reviewed, either by the NDPP under the NPA Act or by the courts
under the rule of law.

9 National Director of Public Prosecutions & others v Freedom Under Law [2014] ZASCA 58; 2014 (2)
SACR 107 (SCA) paras 25 – 27.

[25] It follows that a decision of the prosecuting authority not to prosecute, which
of course is a prerequisite for a private prosecution in terms of s 7(1) of the CPA,
must be made for a good reason. Against this background the conclusion that private
prosecutions should be limited to exceptional cases, cannot be faulted. The
exceptions are those found in subsecs 7(1) and 8 of the CPA.

[26] The effect of s 7(1) of the CPA is to permit private prosecutions only where
private and personal interests are at stake. This is explained in Attorney General v
Van der Merwe and Bornman10 where the court said:
‗The object of the phrase [substantial and peculiar interest] 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 to such
inalienable rights by effecting ethical retribution. Finally it effects atonement, which is a social
desideratum.‘

[27] In Barclays Zimbabwe Nominees (Pvt) Limited v Black11 the question arose as
to whether or not a company was entitled to bring a private prosecution. Milne JA
said, at 724 G, that the term ‗private person‘ should be interpreted as meaning only a
natural person, and expressly excluded a company or a juristic person. And at 726F-
J he said:

10Attorney General v Van Der Merwe and Bornman 1946 OPD 197 at 201.
11 Barclays Zimbabwe Nominees (Pvt) Limited v Black [1990] ZASCA 92; 1990 (4) SA 720 (A).

‗A corporate body as such has no human passions and there can be no question of the
company, as such, resorting to violence. It was submitted, however, that the temptation to
resort to self-help ―is not diminished by the fact that the loss sustained relates to a share-
holding rather than to some other form of asset‖. If, however, s 7(1)(a) were to be read as
including a company then it would only be an injury suffered by the company as such which
could give rise to a private prosecution and not an injury suffered by an individual
shareholder or group of shareholders. These would not necessarily coincide.
The general policy of the Legislature is that all prosecutions are to be public prosecutions in
the name and on behalf of the State. See ss 2 and 3 of the Criminal Procedure Act. The
exceptions are firstly where a law expressly confers a right of private prosecution upon a
particular body or person (these bodies and persons being referred to in s 8(2)) and,
secondly, those persons referred to in s 7. There may well be sound reasons of policy for
confining the right of private prosecution to natural persons as opposed to companies, close
corporations and voluntary associations such as, for example, political parties or clubs.‘

[28] In the final analysis, private prosecutions in terms of s 7 of the CPA are only
permitted on grounds of direct infringement of human dignity. This is the reason for
s 7(1)(a) of the CPA and for the exclusion of juristic persons other than those
mentioned in s 8 from instituting private prosecutions. Human dignity is a
foundational value of our Constitution. To allow for private prosecutions other than in
terms of s 8 of the CPA only on grounds of direct infringement of human dignity, is
for the reasons mentioned, rationally related to the legitimate government purpose of
limitation of private prosecutions. I therefore find that s 7(1)(a) of the CPA is not
unconstitutional.

[29] Another aspect requires attention. It is unfortunate that the respondents failed
to deal with the merits and provide this court with the rationale for the limitation of
private prosecutions. The first respondent is charged with the administration of the
Criminal Procedure Act. The second respondent was cited as head of the single
national prosecuting authority responsible for the institution of criminal proceedings
on behalf of the State. The government and the respondents have a constitutional
duty to the courts, to the legislature and the citizens of this country to be open and
accountable in a manner that promotes the rule of law. Our courts have on many

occasions referred to the special duty that rests on the government in constitutional
litigation.12 As was said by Cameron J in Van Niekerk v Pretoria City Council,13
government cannot ‗play possum‘ by simply rolling over and playing dead when a
constitutional challenge is brought against a statute.

[30] As to the costs aspect, both parties did not seek costs. In accordance with the
principle set out in Biowatch Trust v Registrar, Genetic Resources & others14 no
order as to cost is made.

[31] The following order is made:
The appeal is dismissed.

12 See Permanent Secretary, Department of Welfare, Eastern Cape v Ngxuza & others [2001] ZASCA
85; 2001 (4) SA 1184 (SCA) paras 14 and 15; Van der Merwe & another v Taylor NO & others [2007]
ZACC 16; 2008 (1) SA 1 (CC) paras 71 and 72).
13 Van Niekerk v Pretoria City Council 1997 (3) SA 839 (T) at 850A-C.
14 Biowatch Trust v Registrar, Genetic Resources & others [2009] ZACC 14; 2009 (6) SA 232 (CC)
paras 21 – 25.

_________________
H Saldulker
Judge of Appeal

APPEARANCES:
For the Appellant
K Hopkins (with S Freese and L Nkoana)

Instructed by:
Marston & Taljaard c/o Friedland Hart Solomon &
Nicolson, Pretoria

Honey Attorneys, Bloemfontein

For the Respondents:
L Montsho – Moloisane SC (with VD Mtsweni)

Instructed by:

The State Attorney, Pretoria

The State Attorney, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

4 December 2015

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

National Society for the Prevention of Cruelty to Animals v Minister of Justice and
Constitutional Development (20781/2014) [2015] ZASCA 206 (4 December 2015)

MEDIA STATEMENT

Today, the Supreme Court of Appeal (SCA) dismissed an appeal by the National Society for the
Prevention of Cruelty to Animals (the appellant) and upheld the order of the Gauteng Division of the
High Court, Pretoria. The issue before the SCA was whether s 7(1)(a) of the Criminal Procedure Act
(CPA) which allows only a private person  to institute a private prosecution, and not a juristic person,
flouts the provisions of the Constitution. The Gauteng Division of the High Court, Pretoria, (Fourie J),
had dismissed an application by the appellant against the first respondent, the Minister of Justice and
Constitutional Development (the Minister), and the second respondent, the National Director of Public
Prosecutions (the NDPP), to declare the provisions of s 7(1)(a) of the CPA invalid and
unconstitutional to the extent that they prohibit juristic persons from instituting and conducting private
prosecutions merely because they are not private persons. The respondents did not oppose the
application in the court below. They, however, filed ‘explanatory affidavits’ and made submissions
similar to that of an amicus.

The basis of the constitutional challenge against s7(1)(a) of the CPA was that it differentiated
between natural persons on one hand and juristic persons on the other hand, and that there was no
good reason for differentiating between the two classes of persons. As a result, the differentiation fails
to serve a legitimate governmental purpose and is therefore irrational and non-compliant with the rule
of law as a standard in s 1(c) of the Constitution. Further, the differentiation fails to render both
natural and juristic persons equal before the law.

The SCA, in rejecting the arguments of the appellant, held (i) that regulation of private prosecutions is
a legitimate governmental purpose, (ii) there is an acceptable reason for the limitation of private
prosecutions as contained in s 7(1)(a), which reason is found within the context of the whole of s 7
and s 8 of the CPA, s 179 of the Constitution and the provisions of the NPA Act, (iii) all decisions by
the prosecuting authority to prosecute or not to prosecute must be taken impartially, without fear,
favour or prejudice. They must also adhere to prosecuting policy and policy directives. Accordingly,
the aim of prosecuting policy and policy directives must be to serve the interests of justice for the
benefit of the public in general. And decisions to prosecute or not to prosecute may be reviewed,
either by the NDPP under the NPA Act or by the courts under the rule of law. It followed that a
decision of the prosecuting authority not to prosecute, which is a prerequisite for a private prosecution
in terms of s 7(1) of the CPA, must be made for a good reason. Against this background the
conclusion that private prosecutions should be limited to exceptional cases as envisaged in
subsections 7(1)(a) and 8 of the CPA, cannot be faulted. The effect of s 7(1) of the CPA is to permit
private prosecutions only where private and personal interests are at stake. Finally, private
prosecutions in terms of s 7 of the CPA are only permitted on grounds of a direct infringement of
human dignity and this was the reason for the existence of  s 7(1)(a) of the CPA and for the exclusion
of juristic persons other than those permitted  in s 8 to institute private prosecutions. Human dignity is
a foundational value of our Constitution.

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