Constitutionality of 7(1) (a) of the Criminal Procedure Act, 1977, differentiating between juristic person and natural person, upheld

Supreme Court of South Africa: While deciding upon the constitutionality of Section 7(1) (a) of the Criminal Procedure Act, 1977 insofar as allowing only private persons to institute private prosecutions and not juristic persons; and whether the differentiation is rational and connected to a legitimate governmental purpose, a 5 judge Bench of Saldulker, JA (Judge of Appeal), Maya DP., Petse and Mbha, JJA. and Van Der Merwe, AJA., held that the impugned provision is not unconstitutional as private prosecutions in terms of Section 7 are only permitted on grounds of direct infringement of human dignity, which is why the provision was enacted for the exclusion of juristic persons, from instituting private prosecutions. It was further observed that, allowing private prosecutions, other than the exceptions in Section 8 of the Criminal Procedure Act on grounds of direct infringement of human dignity is rationally related to the legitimate government purpose of limitation of private prosecutions.

The appellant wanted to initiate proceedings against a group of Islamic worshippers in Lenasia who were apparently involved in ritualistic slaughtering of a camel. However the appellant‘s request for a certificate nolle prosequi (refusal to prosecute) was refused by the prosecutor on the grounds that the appellant was a juristic person as per Section 7 (1) (a) of the Criminal Procedure Act. The appellants contended before the Court that the differentiation between juristic person and natural person as enshrined in the impugned provision fails to serve a legitimate governmental purpose and is therefore irrational.

The Court upon perusing the contentions and the relevant case laws observed that, Section 7 has to be read in the light with Section 8 of the Criminal Procedure Act and the relevant provision of Constitution of South Africa. The Court further observed that the decision to prosecute or not to prosecute should be decided impartially by the prosecuting authority and in adherence to the prosecution policies and directives, thereby serving the interests of the general public. [National Society for the Prevention of Cruelty to Animals v. Minister of Justice and Constitutional Development (20781/2014)[2015] ZASCA 206, decided on 04.12.2015]

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