Pretoria – The National Society for the Prevention of Cruelty to Animals (NSPCA) is challenging the constitutionality of a section of the Criminal Procedure Act (CPA) permitting only private people to become private prosecutors.

The legislation prevented juristic persons, including the NSPCA, from using the provisions of the act to pursue a private prosecution, its executive director Marcelle Meredith said in court papers.

It has sought an order declaring the relevant section of the CPA unconstitutional, and on Monday the North Gauteng High Court in Pretoria granted an order giving Justice Minister Jeff Radebe and the National Director of Public Prosecutions 15 days to file answering affidavits.

“The NSPCA, manifestly not a ‘private person’, is frustrated in its efforts to perform its statutory tasks as a consequence of it being precluded from enjoying the benefits of section 7(1)(c),” said Meredith.

“It has a ‘policing function’, but is unable to carry this out effectively where, for example, the State refuses to prosecute,” she said.

Meredith said there had, in the past, been a number of instances where the NSPCA would have liked to privately prosecute an offender and there would probably be more in the future.

“The NSPCA challenges the constitutionality of section 7(1)(a) on the basis that it arbitrarily differentiates between private persons on the one hand and juristic persons on the other without any apparent rational basis for doing so,” she said.

“The distinction created between private and juristic persons does not comply with the requirements of the rule of law because the ‘differentiation’ seems to be no more than a ‘naked preference’ that serves no legitimate governmental purpose.”

She contended that the differentiation produced inequality in that the two classes of “persons” were not equal before the law nor did they enjoy equal benefit of the law.

Meredith said the NSPCA had, in the past few years, tried on several occasions to privately prosecute individuals in circumstances where the State declined to do so.

As the law currently stood, a private prosecution could only follow the issuing by the prosecutor of a certificate declaring that the case had been dropped.

Issuing of certificates

However, the NSPCA had time and again been told the prosecutor could not issue the certificate because, according to the act, only a private person could institute a private prosecution and not a juristic entity.

Meredith said this happened last year in a case where an NSPCA inspector was forced to shoot a camel, which was being slaughtered in a religious ritual in Lenasia, to put it out of its misery.

“The inspector witnessed the cruel and inhumane treatment of the animal by certain of the worshippers in a manner not befitting their religion, and which caused the camel undue and extended pain and suffering.

“The incident was caught on film by the inspector. In the opinion of the inspector the treatment of the animal by certain of the worshippers constituted an offence in terms of the Animal Protection Act.”

Meredith said the NSPCA referred the matter to the prosecuting authorities, but despite the evidence they declined to prosecute.

“It is precisely in instances where there is official inaction in prosecuting an offence, be it on the basis of policy or a lack of resources or whatever, that a person’s right to privately proceed with a prosecution is triggered,” she said.

“The right to bring a private prosecution ought to be capable of enforcement by any person, not only a private person,” she said.

– SAPA