IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
Case No: CCT 1/16 In the matter between:
NATIONAL SOCIETY FOR THE PREVENTION
OF CRUELTY TO ANIMALS Applicant
and
MINISTER OF JUSTICE
AND CONSTITUTIONAL DEVELOPMENT First Respondent
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS Second Respondent
and
CORRUPTION WATCH Amicus Curiae
___________________________________________________________________
PRACTICE NOTE FOR CORRUPTION WATCH
THE NATURE OF THE PROCEEDINGS
This is an application for leave to appeal against a decision of the Supreme Court of Appeal (SCA). It concerns the constitutionality of section 7(1)(a) of the Criminal Procedure Act 51 of 1977 (CPA).
1
ISSUES TO BE ARGUED BY THE AMICUS
Whether excluding juristic persons from bringing a private prosecution gives rise to a constitutional defect
Whether that defect is to be resolved by interpretation or a declaration of invalidity
PORTIONS OF THE RECORD NECESSARY FOR DETERMINATION OF MATTER The whole record.
ESTIMATED DURATION OF ORAL ARGUMENT Half a day.
SUMMARY OF ARGUMENT
Precluding juristic persons from ever engaging in a private prosecution, no matter the circumstances, is not consistent with the Constitution. Not only is it inconsistent with section 9(1) of the Constitution (the submission correctly advanced by the applicant), it is also inconsistent with the constitutional duty on the State to take reasonable measures to prevent corruption.
There is nothing in the language of section 7(1)(a) of the CPA that requires that this interpretation is adopted. On the contrary, once the interpretative approach required by section 39(2) of the Constitution is applied, the approach of the Appellate Division in Barclays v Black and of the SCA in the present matter falls to be rejected.
2
Alternatively, to the extent that section 7(1)(a) of the CPA is only capable of the interpretation adopted by the SCA, it is unconstitutional and invalid.
AUTHORITIES ON WHICH PARTICULAR RELIANCE WILL BE PLACED
Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC)
STEVEN BUDLENDER GIFT MOTAUNG
Counsel for Corruption Watch Chambers, Johannesburg
29 July 2016
