Telecel v Attorney-General - SC 1-2014

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 At a later stage, the charges against them were withdrawn before plea following a directive by the respondent that there was insufficient evidence to prosecute.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 interrelated 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.

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