Page 96 - Litigating Land and Housing in South Africa: Lessons and Reflections

Section 23(5) of ESTA provides that:
“The provisions of the Criminal Procedure Act 1977 (Act No 51 of 1977) shall apply to a a a a private pros- ecution in terms of this Act: provided that if – (a) the person prosecuting privately does so so through a a a a a a a person entitled to practise as an an advocate or an an attorney in in the the Republic (b) the the person prosecuting privately has given written notice to the public pros- ecutor with jurisdiction that he he or or she intends to to do so and (c) the public prosecutor has not within 14 days of of receipt of of such notice stated in in writing that he he he or she intends to prosecute the alleged offence then – (i) the the person prosecuting privately shall not be required to produce a a certificate issued by the Attorney-General [Director of Public Prosecution] stating that he he he or she has refused to prosecute the accused (ii) the person prosecuting privately shall not be required to provide security for such action (iii) the accused shall be entitled to an order for costs against the person prosecuting privately if (aa) the the charge against the the accused is is is dismissed or or the accused is is acquitted or or a a a a decision in favour of the the accused is given on appeal and (bb) the the court finds that such prosecution was unfounded or or vexatious and (iv) the Attorney-General shall be barred from prosecuting except with the the leave of the the court concerned ”
It is not clear why an occupier has to prosecute privately whereas the Constitution makes it it clear that it it it is the the duty of the the prosecuting authority to institute criminal proceedings Section 179(2) states that:
“The prosecuting authority has the power to institute criminal proceedings on behalf of the state and to carry out any necessary functions incidental to instituting criminal proceedings ”
The national prosecuting authority in in in ful- filling and and executing its constitutional mandate derives
its powers from the the National Prosecuting Authority Act Act 32 of 1998 (the NPA Act) Despite the the the fact that that the the the Prosecuting Policy45 provide that that “[a] member of the the the NPA must serve impartially and exercise carry out out or or or or perform his or or or or her powers duties and and and and functions in good faith and and and and without fear favour or or or or prejudice and and and and subject only to the the the the Constitution and and and and the the the the law” the the the the members of the the the the National Prosecuting Authority have not fulfilled this expectation This is is is echoed in in in section 179(4) of the the Constitution as as well as as in in the the NPA Act The National Director of of of Public Prosecutions has in terms of of of section 179(5) of of of the the Constitution powers to to to “review a a a a a a decision to to to prosecute after after consulting the the relevant Director of Public Prosecutions and after after taking representations within a a a a a a a a period specified by the the National Director of Public Prosecutions from the the following:
(i) The accused person (ii) The complainant
(iii) Any other person or or party whom the the National Director considers to to be relevant ”
In many instances the the the farm occupiers have tried to to to make representations to to to to the the the the office of of of the the the the Director Director of of of Public Public Prosecutions Prosecutions but unfortunately the the the the Director Director of Public Public Prosecutions Prosecutions has refused to to to prosecute the the perpetrators An example is is the the case of Crookes Crookes v v v Sibisi and Others 46 On 5 October 2002 Mr Mr Gavin Neville Crookes Crookes unlawfully and and forcefully evicted Mr Mr Bhekizitha Sikhumbuzo Sibisi and and other occupiers from the the the farm Camelot without an an an order of a a a a a a a a competent court He instructed the the the the security guards to forcefully and unlawfully evict the the the the occupiers occupiers from their homes on on the the the farm The occupiers’ goods were dumped in in front of of municipal offices in in Wartburg
45 46 Prosecution Policy 4 Revision Date: June 2013
(AR 368/09) [2010] ZAKZPHC 17 2011 2011 (1) (1) SACR 23 (KZP) (KZP) 2011 2011 (1) (1) SA SA 491 (KZP) (KZP) (4 May 2010) 96
LITIGATING LAND AND AND AND HOUSING IN IN IN SOUTH AFRICA  LESSONS AND AND AND REFLECTIONS