11
think I would be lying if I said the first approach was, it was not relevant so, you know if he had actually come with the money I would not have taken it. And that is the truth ..I have...spent fortunes of money being here today and that is what this is about. This is not about the money.
Well I want to remind you that five minutes ago in your evidence you said to me the right amount come, you may have settled ? — I may have, ja.
But what is the right amount ? — Who knows ? I do not know..."
"I might take the money. I want to put something to you. I might take the money and not stop the prosecution..."
"Would you create the impression that you would stop the prosecution and then not stop it ? — You know, I do not honestly know. Mr Pierre Botha has frauded me, aggrieved me..."
"...it was a game we were playing. Pierre [the respondent] comes to me with second-hand cars, et cetera...This is not about money, this trial. It probably costs me R130 000,00 to be here today."
In so far as is relevant to this appeal sec 7(1) of the Act reads as follows :-
12
"7(1) In any case in which an attorney-general 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;
may, subject to the provisions of section 9, either in person or by a legal representative, institute and conduct a prosecution in respect of such offence any court competent to try that offence."
At the trial it was common cause that the game on which the respondent had hazarded his money was a "gambling game" as defined in sec 1 of the Gambling Act 51 of 1965. At the conclusion of argument before him the regional magistrate delivered an extempore judgment. He rejected as palpably untrue the appellant's assertion that on the night in question he had been ignorant of the fact that gambling debts are unenforceable. In the concluding portion of his extempore judgment the regional magistrate remarked as follows :-
13
"Nou vra hy [the appellant], wat nie in die sivielereg, in die privaatreg geholpe kan raak nie, vra hy die strafreg om hom tegemoet te kom se : ek het regtens 'n verlies gely, ek is regtens benadeel deur die optrede van die beskuldigde.
Ek glo nie dat dit ooit geargnmenteer kan word dat hy regtens benadeel is en dat hy as gevolg daarvan, van die optrede van die beskuldigde nadeel gely het nie. Wanneer twee mense soos die beskuldigde en hierdie klaer met vuil hande staan, dan moet hulle nie verwag dat 'n geregshof daardie vuil hande moet skoon was nie. Dit is nie die funksie van 'n geregshof nie, en hierdie hof is van mening dat dit die grond is waarom die prokureur-generaal geweier het om 'n vervolging in te stel en dat dit op goeie gronde geskied het dat daar 'n weiering was aan die prokureur-generaal se kant om 'n vervolging in te stel.
Die hof is tevrede dat daar geen substansie was vir 'n vervolging in hierdie betrokke geval nie want die klaer se eis is, vir die redes deur die hof gemeld, nie gebring binne die bepalings van artikel 7 van die Strafproseswet nie en volgens die hof se oordeel, as hierdie argument dan nie aanvaar word nie is daar in elk geval, wat hierdie hof betref, nie enige nadeel wat die klaer tref in die regsin van die uitleg van die woord 'nadeel'."
Following upon the trial court's order discharging the respondent the appellant's attorney, by notice in terms of sec 310 of the Act, required the
14 regional magistrate to state a case for consideration of the Witwatersrand
Local Division setting forth the question of law upon which he had
discharged the respondent in terms of sec 174 of the Act ; his decision
thereof; and his findings of fact insofar as such were material to the question
of law.
In written reasons in response to the above notice the regional magistrate said that the legal question which fell to be answered might be framed
thus :-
"Het die privaatvervolger in die verhoor 'n wesentlike en besondere belang bewys en homself sodoende binne die bepalings van art 7(l)(a) Wet 51 van 1977 gebring ?"
In seeking the answer to this question the regional magistrate pointed out that "daar geen siviele verhaalsreg is ten aansien van dobbelskuld nie" and he made reference to the decisions in Mullins and Meyer v Pearlman 1917 TPD 639 ("the Mullins case"); Ellis v Visser 1954(2) SA 431(T) ("the Ellis
15 case") ; Makhanya v Bailey NO 1980(4) SA 713(T) ("the Makhanya
case") ; and Levy v Benatar 1987(4) SA 693 (ZSC). Relying upon the
following dictum of MASON J in the Mullins case (at 643) that -
"where no right of civil redress exists the right of private prosecution would cease"
the regional magistrate held that he was bound by the decisions in the Mullins and Ellis cases -
"en dat die privaat vervolger geen locus standi ingevolge artikel 7(1 )(a) Wet 51 van 1977 bet indien by nie 'n siviele verhaalsreg het nie."
In the course of his comprehensive and closely-reasoned judgment HEHER J (at 954D-E) remarked :-
"The conduct of both the appellant and the accused was prima facie illegal. Ex turpi causa non oitur actio : the appellant
16
would, if seeking to enforce the contract, inevitably fail in such an action. The purpose of the maxim is to discourage illegality and advance public policy : Jajbhay v Cassim 1939 AD 537. One of the questions which arises in this matter is whether the placing of an interpretation upon S 7 of the Criminal Procedure Act which affords recognition of the prosecutor's title will conduce to an undermining or evasion of that principle."
Further on in his judgment (954I-955A) the learned Judge proceeded to say :-
"The potential prejudice to the appellant is obvious : on the strength of the delivery of the cheques he exposed himself to the
possibility of incurring losses to the accused during the course of the gaming. However, under the statute which requires that an 'injury' should have been suffered, considerations of policy in relation to the locus standi of a public prosecutor certainly import questions as to the legality of the injury."
HEHER J then proceeded to consider whether the regional magistrate had been correct in relying for his conclusion upon the dictum of MASON J quoted above. To this end the learned Judge subjected to critical analysis
17 the decided cases relevant to the inquiry. Dealing with the dictum of
MASON J in the Mullins case HEHER J (at956D-F) remarked :
"It seems quite clear to me that the 'right of civil redress* to which the Court first referred meant simply the right which would arise when the requirements enunciated in Patz v Greene [1907 TS 427] and other cases cited were present. Upon a proper interpretation of the judgment (and although the learned Judge did not relate the enquiry to any particular part of the section [sec 12 of Transvaal Ordinance No 1 of 1903] authorising private prosecution) the Court was trying to determine when a substantial and peculiar interest could be said to exist in the context of an alleged breach of a statutory provision. It was in this context, and only in this context, that the initial remarks relating to the existence of civil redress were made. The learned Judge was certainly not concerned, as we are, with an injury arising from an alleged common law crime and could not have had in mind the question of enforceability or otherwise of rights flowing from the injury. In my respectful opinion the Mullins case is of no assistance in the decision of the case before us, and the magistrate was not bound to apply the dictum found at 643 of the judgment."
After a thorough review (at 955B-960A) of the four cases already mentioned
18 together with the decision in Solomon v Magistrate, Pretoria, and Another
1950(3) SA 603(T) and upon a consideration (at 960A-I) of the policy
underlying sec 14 of Act 31 of 1917 (the forerunner of sec 7 of the Act) as
expounded by VAN DEN HEEVER AJP in Attorney-General v Van der
Merwe and Bornman 1946 OPD 197 at 201, HEHER J arrived at the
following conclusions :-
"...there has been a direct and serious infraction of the appellant's right not to be subjected to fraudulent conduct; he justifiably regards it as an invasion which he cannot ignore ; there is no obvious remedy at law open to him which will compensate him for his commercial loss nor assuage his sense of having been put upon..." (at 960I-961A)
and further (at 961H-J) -
"The point was well made that there is no reference to a right of civil redress to be found in the section. In each case the elements of s 7 must be matched with the facts in order to ascertain whether a particular complainant possesses locus standi or not. I respectfully agree with Le Roux J's assessment in Makhanya's case that when a legal right of a
19
person is infringed then the question of a civil remedy is not relevant. In the present case, for example, prima facie, at least, the appellant's right not to be made the victim of a fraudulent misinterpretation has been infringed, yet there was and is no civil remedy available to him because the law regards his claim against the accused as unenforceable.
Because of these considerations I do not experience difficulty with the elements of a 'substantial and peculiar interest in the issue of the trial'. Both aspects are clearly present in the facts disclosed by the evidence of the private prosecutor."
Having decided that the appellant was a private person who had proved
some substantial and peculiar interest in the issue of the trial, HEHER J next embarked upon the further inquiry whether such interest had arisen "out of some injury which he individually suffered in consequence of the commission of the said offence".
The learned Judge decided (at 962F) that there was in fact no causal connection between the injury of which the appellant complained and the respondent's fraud; and that on this ground the regional magistrate had been
20 right in discharging the respondent. The reasoning which impelled the
Court a quo to this conclusion is reflected in the following passage (at 962D-
E) of its judgment :-
"The injury which the prosecutor relies on to satisfy the statute was the loss of R105 000 which would have been paid to him if the cheques had been met. But was this injury suffered 'in consequence of the commission' of the fraud ? I think not. In truth the injury upon which the appellant relies was caused not by the fraud - which simply persuaded him to issue chips for participation in the game, an act which resulted in no loss to him at all; gambling chips have no inherent value, their value can only be determined by the result of the game - but by his inability in law to enforce his bargain..."
However, HEHER J went on to hold (at 962G) that even if in this respect he might have erred, there was a further and fatal obstacle to the recognition of the appellant's locus standi as a private prosecutor. The learned Judge stressed the fact (at 963B-C) that the gambling debts which gave rise to the cheques involved transactions which were prohibited by law ; and from
21 WESSELS, The Law of Contract in South Africa, he quoted, inter alia, the
following passage from para 644 :-
"An illegal contract is a vicious contract. It is one which the law forbids. The law is not indifferent to it. Not only does the law refuse to enforce it, but it refuses to help a party who has been the victim of such a contract. No claim can be grounded upon an illegal contract. The Court will have nothing to do with rights based directly or indirectly upon an illegal contract..."
HEHER J concluded that such injury as the appellant may have suffered in consequence of the respondent's fraud was not cognisable under sec 7 of the Act. He reasoned (at 963F-964B) as follows :-
"The intransigent mien of the Courts towards illegal contracts which these passages from Wessels manifest has, of course, been softened by long contemplation of the principles enunciated in Jajbhay v Cassim (supra)... Such mitigation goes no further, however, than enabling a party to such a contract to obtain restitution when justice or public policy requires that...I
22
have found nothing to suggest that the loss to a party caused by inability to enforce an illegal contract has attracted any judicial sympathy. Compare the approach to a claim for damages on the strength of earnings illegally earned, in which public policy appears to be the determinant of judicial recognition : Dhlamini en 'n Ander v Protea Asurance Co Ltd 1974(4) SA 906(A) at 912H-915G : Santam Insurance Ltd v Ferguson 1985(4) SA 843(A) at 850B-E. I do not consider that I can introduce public policy as such as an interpretative tool in relation to s 7, but should I do so it would not affect my conclusion. Notwithstanding the factors to which I have earlier referred which encourage the view that a private prosecution should be available to the appellant, I cannot but conclude that the accused's fraud did not result in an injury to the appellant which the law recognises. The magistrate was, therefore, also correct in finding that the appellant did not suffer an injury as contemplated by s 7."
Accordingly the learned Judge dismissed the appeal with costs and ordered the appellant to pay the respondent's costs of the appeal. He further considered that the respondent's conduct warranted investigation by the Law Society and he directed that his judgment be brought to that body's attention.
23
In the course of his written reasons in support of the order for the discharge
of the respondent the regional magistrate recorded, as part of his factual findings, the following :-
"13. Dat beskuldigde 'n vaste aanbod van R205 000,00 gemaak het ter skikking voor die verhoor maar dat klaer 'n spel gespeel het om hom uit te lok om soveel as R310 000,00 te wil h
. (Bewysstuk"J").
14.
Dat klaer beslis die hof probeer mislei het deur voor te
gee dat hy nie geweet het dat dobbelskuld nie
afdwingbaar is nie.
15.
Dat klaer die strafhof wil misbruik om sy onwettige
bedryf te bevorder."
Having regard to the above factual findings by the trial court as well as the tenor of much of the appellant's own testimony, this Court some weeks before the hearing of the appeal requested counsel for both parties to submit supplementary heads of argument to deal with the issue whether the private prosecution did not amount to an abuse of criminal process. We are
24
indebted to counsel for the additional written arguments furnished by them
on this point.
A terse but useful definition of abuse of civil process is to be found in the judgment of ISAACS J in the Australian High Court case of Varawa v Howard Smith Co Ltd vol 13 CLR (1911) 35 at 91 :-
"...the term 'abuse of process' connotes that the process is employed for some purpose other than the attainment of the claim in the action. If the proceedings are merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate they are regarded as an abuse for this purpose..."
In Solomon v Magistrate, Pretoria, and ,Another 1950(3) SA 603(T)
ROPER J (at 607 F-H) remarked :-
"The Court has an inherent power to prevent abuse of its process by frivolous or vexatious proceedings (Western
25
power is usually asserted in connection with civil proceedings it exists, in my view, equally where the process abused is that provided for in the conduct of a private prosecution."
Where the Court finds an attempt made to use for ulterior purposes machinery devised for the better administration of justice it is the Court's duty to prevent such abuse. This power, however, is to be exercised with great caution and only in a clear case. (See Hudson v Hudson and Another (supra) at 268).
The question is whether the private prosecution of the respondent was either instituted or thereafter conducted by the appellant for some collateral and improper purpose, such as the extortion of money, rather than with the object of having criminal justice done to an offender. Counsel for the respondent argued strenuously that the private prosecution in fact represented an abuse
26 of the trial court's process ; and he urged upon us that on this ground alone
the appeal should fail. On the other hand counsel for the appellant, while
candidly conceding that portions of the appellant's testimony made for sorry
reading, submitted that neither the institution nor the actual conduct of the
prosecution amounted to an abuse of the regional court's process. In
particular counsel called attention to the fact that it was the respondent who
had approached the appellant with offers of settlement; and that it was not
the appellant who had taken the initiative in this connection.
From the evidence of the admissions extracted from the appellant during his cross-examination it may be fairly inferred that, as part of a punitive campaign, the appellant played a protracted game of cat-and-mouse with the respondent. The appellant relished the woe and agony of mind experienced by the respondent in the awkward predicament in which he suddenly found himself. The appellant gloatingly rejected the various offers of settlement made by the respondent and on each occasion prodded him into making even
27 more substantial offers. That the appellant was determined to teach the
respondent a sharp lesson is clear. Taking his evidence as a whole,
however, and despite the unsavoury conduct to which he too resorted, I am
unable to conclude that in prosecuting the respondent the appellant's
dominant motive was one of extortion or oppression rather than having
justice done to a wrongdoer.
I turn again to the judgment of the Court below. In considering the locus standi of the appellant under sec 7 of the Act HEHER J undertook two separate and discrete inquiries into whether the appellant had proved : (1) that he had some substantial and peculiar interest in the issue of the trial; and, if so (2) that such interest arose out of some injury which he individually suffered in consequence of the commission of the said offence. In the concluding part of this judgment I shall consider briefly whether this bifurcated approach was really necessary.
28 I agree, with respect, with the conclusion of HEHER J that when a person's
legal right has been infringed the existence or otherwise of a civil remedy
does not by itself determine the question whether he has locus standi under
sec 7 of the Act. The further question whether in the instant case the
appellant proved that he had a substantial and peculiar interest in the issue
of the trial I shall, for the moment, leave in abeyance.
In the view which I take of the matter it is unnecessary for me to express an opinion on the correctness or otherwise of the finding of the Court a quo that no causal connection existed between the injury of which the appellant complained and the respondent's fraud. For the purposes of argument I shall assume in favour of the appellant that there was such a causal connection.
In the end HEHER J was driven to the conclusion that the appellant lacked locus standi as a private prosecutor on the ground that any injury which he
29 may have suffered in the instant case is not an injury cognisable under sec
7 of the Act. With that finding I entirely agree. It is no doubt so that in
pressing for the conviction of the respondent the appellant is not seeking
civil enforcement of an illegal contract. The essential fact of the matter
however remains that any representation which the respondent may have
made as to his own state of mind which induced the appellant to accept the
former's cheques was part and parcel of the whole illegal transaction in
which they were both engaged. Viewed from any angle the conclusion
seems to me inescapable that what the appellant is trying to do through the
machinery of a private prosecution is to found a case in criminal law based
on his own iniquity. Closely allied to the rule of our law ex dolo malo non
oritur actio is the maxim nemo auditur propriam turpitudinem allegans (no
one is heeded who adduces his own infamy) cf Cod.7.8.5. In prosecuting
the respondent that is precisely what the appellant is seeking to do. He is
in law not entitled to do so.
30 I return to the question whether it was necessary for the Court below to
undertake separate inquiries into (1) substantial and peculiar interest; and
(2) the injury out of which such interest arises. This dissociation seems
to me, with respect, to be somewhat artificial. If (as the Court a quo
correctly found) the injury of which the appellant complains is not one
which falls within the purview of sec 7(1) of the Act that finding must, I
consider, at once be destructive of the existence on the part of the appellant
of any "substantial and peculiar interest" in the issue of the trial, because the
"interest" is one which in terms of the subsection "arises out of the
"injury". In my view the two concepts are indissolubly linked. In the
absence of an injury cognisable under sec 7(1) there can be on the part of a
private prosecutor no room for any interest (substantial and peculiar or
otherwise) in the issue of the trial.
For the reasons aforegoing the Court below correctly upheld the order of the
31 regional magistrate discharging the respondent at the close of the
prosecution's case. The appeal is dismissed with costs, including the costs
of two counsel.
G G HOEXTER
HEFER JA)
HOWIE JA)
concur SCHUTZ JA)
NGOEPE AJA)
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