Private prosecution

Private prosecution
What to do to privately prosecute?

” In 1998 I suffered the loss of my father and farm” A good example of the charge sheet: IN THE HIGH COURT OF SOUTH AFRICA LIMPOPO DIVISION, POLOKWANE CASE NO : IN THE MATTER BETWEEN :

THE STATE VERSUS   ANDRE BRITS

ELMARIE (KLEYNHANS) BRITS

RITA (RUST) KLEYNHANS

PRIVATE PROSECUTION CHARGE SHEET COUNT 1 MURDER IN THAT ON OR ABOUT 30 MAY 1998 AT OR NEAR ALLDAYS IN THE DISTRICT OF ZOUTPANSBERG The accused did wrongfully, unlawfully and with the intention to kill, cause the death of HENDRIK TERBLANS
KLEYNHANS by suffication, removing the supply of oxygen to the deceased. COUNT 2 THEFT IN THAT ON OR ABOUT 30 MAY 1998 AT OR NEAR ALLDAYS IN THE DISTRICT OF ZOUTPANSBERG The accused did wrongfully and unlawfully steal 200 (two hundred) shares in the
company Alldays Escape (pty) Ltd. with the intention to deprive the owner, George Kleynhans, of his farm Campfornis.

“In 2016 my son was assaulted in ‘n bar, however the state decided not to prosecute the particular person. Lately I’ve heard a lot in the news about private prosecution. How does it work?” While a large percentage of the South African public
only recently heard of private prosecution, it is not a new concept, and has been in existence for almost a century, even though it is seldom used. In terms of Section 7 of the Criminal Procedure Act a private person may prosecute another person privately
should the Director of Public Prosecutions/National Prosecution Authority decide not to prosecute. Should such a decision be taken, a nolle prosequi certificate will be issued. This certificate is then valid for three months, which means that
a person considering private prosecution has to take the necessary legal steps within three months from date of issue. A person considering private prosecution must also note that he/she should have an essential and particular interest in the case,
and that he/she must have suffered personal damages as a result of the alleged offence. Private prosecution also makes provision for spouses to institute such prosecution on behalf of each other, as well as for parents to act on behalf of their children
and guardians on behalf of minors. Two or more persons may however not institute private prosecution under the same charge, unless both parties suffered damages due to the same alleged offence. Furthermore private prosecution must be instituted in the
name of the private prosecutor, and the process documents issued in the name of, and at the expense of, the private prosecutor. As with civil cases, a private prosecution is also reported in the name of the parties involved, for example Van Rensburg
v Francisco. A person being privately prosecuted may however not be arrested for the relevant charge, but may only be summoned to appear before the court. Furthermore he/she enjoys the same rights as an accused being prosecuted by the state. The attorney
general kan also intervene at any time and take over the prosecution, and then all proceedings in the private prosecution has to be stopped. Before a person may be privately prosecuted, the private prosecutor has to pay in an amount at the Magistrates
Court in which jurisdiction the crime had been committed. This payment serves as security and is determined by the Minister of Justice. Currently this amount is R2500, but it can be amended from time to time, with the particular court also by rights
to determine a different amount. This amount can be forfeited should the private prosecutor fail to pursue the private prosecution against an accused to its end, or where he/she fails to show up. If the private prosecutor fails to without a valid reason
show up for the trial, the charge against the accused will be dismissed and may he/she not be privately prosecuted again for the same offence. The attorney general may however prosecute the accused for that charge. If the accused pleads guilty on the
day of the trial, the National Prosecuting Authority will take over and prosecute further. Private prosecution is a time consuming and expensive process, but if a person is certain that justice has not been done, there is always the option to follow
this route. Should you consider it, it’s advisable to consult a criminal law specialist to determine the merits of private prosecution in your case.

 

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Expropiation of land

The ANC national conference decided its National Executive Committee (NEC) would start the process towards a constitutional amendment of Section 25, or the Constitution’s property clause, to make possible land redistribution without compensation. There is a carefully phrased and potentially crucial rider: a sustainability test to ensure such redistribution does not negatively impact on the agriculture, food security or other sectors such as financial services, which hold around 70% of commercial farmers’ debt.

This will be a painfull loss to the unfortunate owners of land.

I have empathy with the majority decision, however I had the personal experience of the most painful loss in my life being the loss of the farm Campfornis in the district of Zoutpansberg without compensation.

George Kleynhans

076 741 6666

Zuma resigns

ZUMA RESIGNS

I know the difference between beeeg shiiit and sweet cake of corruption and it looks like more shiiit is on its way.

Zuma will not disappoint when his proaction of protection fails, in my opinion, president Zuma can take the only way out, to compromise and resign while he can.

Let me know when it happens

George Kleynhans

LAWYA INC

076 741 6666

lawya@me.com

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Freedom of expression on your own site is a privilege, the pen is mightier than the sword.

When you read this, feel free and welcome to express your views on any subject or share with us any new idea.

You are invited to file your legal problem or question with writer hereof if you are resident in South Africa or planning to visit.
George Kleynhans

lawya@me.com

+2776 741 6666

Clarity

Clarity

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Clarity at last! A new owner is not responsible for the municipal debt of the previous owner10 October 2017 “I’ve been following the running debate in the media over the last few years about whether the municipality can hold a new owner responsible for the municipal debts of the previous owner. I understand now that the matter has been decided on by the Constitutional Court. But is it really resolved?”

You are correct to note that the matter has been the topic of a lot of media exposure as several of our courts have had a stab at interpreting the provisions of section 118 of the Local Government Municipal Systems Act 32 of 2000 (“Systems Act”).

Section 118(3) of the Systems Act has been a great cause of concern for home owners, as this section has been viewed as enabling a municipality to hold a new home owner responsible for the arrear municipal debts of a previous owner. According to this section, an amount due for municipal service fees, property rates and other municipal taxes, levies, etc, is a charge upon the property and enjoys preference over any mortgage bond registered against the property, thereby creating a security provision in favor of the municipality for the payment of the outstanding debts. No time limit is attached to this provision and it does not matter when the secured debt became due.

Last year, the Gauteng High Court (Pretoria) declared section 118(3) constitutionally invalid. Following this, the Constitutional Court in Jordaan and Others v City of Tshwane Metropolitan Municipality and Others recently had to consider the meaning and constitutionality of this particular subsection. The Constitutional Court concluded that a new owner is not liable for the previous owner’s historical municipal debts arising before transfer of the property.

The Court noted that section 118(3) does not require the charge against the property to be either registered or noted at the Registrar of Deeds. There is no indication that the right given to the municipalities has an effect on third-parties. Further, there is no provision to fulfil the publicity requirement which is central to the functioning of limited real rights. The section stands alone, unsupported and with no express wording holding any suggestion that it is transmissible.

In contrast, the court looked at the Land and Agricultural Development Bank Act 15 of 2002 which was enacted soon after section 118(3) took effect. This statute provides specifically that before the Bank makes any payment of a loan, it must convey in writing to the Registrar of Deeds information about the advance which includes the amount due and the date. The Registrar makes a note in its registers and endorses the title deed of the property to that effect. This note creates a charge upon the property in favour of the Bank until the amount of the advance together with interest and costs has been paid.

Section 118(3), however, does not attempt to establish a similar publicity requirement in order to have the rights enforceable against third parties. The two provisions use the same language but the Land and Agricultural Development Bank Act holds the logical outcome that secures transmissibility, namely registration by public act in the register of deeds.

When legislation creates a transmissible charge upon immovable property, registration in the deeds registry is required. Its absence from section 118(3) provides a clear indication that the charge takes effect only against the current owner and not their successors.

The Court further considered that the Bill of Rights in the Constitution prohibits arbitrary dispossession of property, which would happen if debts without historical limit are imposed on a new owner. To avoid unjustified arbitrariness in violation of section 25(1) of the Constitution, the Court held that section 118(3) of the Systems Act must be interpreted so that the charge it imposes does not survive transfer to a new owner.

The Constitutional Court therefore found that section 118(3) is not unconstitutional and that it should be interpreted so that the charge does not survive transfer to the new owner and thereby confirmed that, upon transfer of a property, a new owner is not liable for debts arising before transfer from the charge upon the property under section 118(3). By so doing, our highest court finally confirmed the position and provided much needed legal certainty on the matter.