Telecel Zimbabwe (Pvt) Ltd v AG of Zimbabwe N.O. (Civil Appeal SC 254 of 2011; SC 1 of 2014) [2014] ZWSC 1 (27 January 2014)

Key Facts

Issues

• The first issue on appeal is whether a private company is entitled to bring a private prosecution under the relevant statutory provisions, considering the historical and legal context of private prosecutions and the distinction between natural and artificial persons.
• The second interrelated issue is whether the Attorney-General has the discretion to issue or withhold a certificate nolle prosequi after declining to prosecute at the public instance, examining statutory obligations and the constitutional independence of the Attorney-General in criminal prosecution matters.

Holdings

• The respondent is ordered to pay the costs of the application in the High Court.
• The respondent is directed to issue a certificate nolle prosequi to the applicant within 5 days of the order's date.
• The appeal is allowed with costs, and the High Court's judgment is set aside and substituted with new orders.

Remedies

• The respondent is ordered to issue a certificate nolle prosequi within 5 days, stating he declines to prosecute the fraud charge at the public instance.
• The respondent is required to pay the costs of the applicant's court application as part of the judgment.
• The court set aside the respondent's decision to refuse the certificate nolle prosequi, allowing the appeal with costs.

Legal Principles

• The judgment cited the inherent power of courts to interdict private prosecutions for ulterior or improper purposes, as emphasized in cases like Solomon v Magistrate and Phillips v Botha. This principle was invoked to underscore the limits of private prosecutions, even with a certificate nolle prosequi.
• The court applied the principle that statutes should not be interpreted to effect fundamental changes in the law unless there is clear legislative intent. This was used to argue that the CP&E Act did not exclude corporations from the right of private prosecution, preserving common law rights.
• The judgment references the judicial review principles of illegality (error of law in decision-making) and irrationality (Wednesbury unreasonableness), as outlined in the House of Lords' CCSU case. The court determined that the Attorney-General's refusal to issue the certificate was a misdirection at law, rendering it reviewable on grounds of illegality.

Precedent Name

• Patriotic Front-Zimbabwe African People's Union v Minister of Justice, Legal and Parliamentary Affairs
• Van der Merwe and Bornman
• Singh v Minister of Justice and Constitutional Development & Another
• R v Rollins
• R v Rollins and McInerney
• Levy v Benatar
• Barclays Zimbabwe Nominees (Pvt) Ltd v Black

Cited Statute

• Interpretation Act [Cap 1:01]
• Administrative Justice Act [Cap10:28]
• Criminal Procedure and Evidence Act [Cap 9:07]

Judge Name

• Patel
• Ziyambi
• Garwe

Passage Text

• The learned authors cited in the above passage point out, at p. 121: 'The mere possession of the attorney-general's certificate does not in itself confer an absolute right of private prosecution.'
• In the result, the appeal is allowed with costs. The judgment of the court a quo is set aside and substituted with the following: '1. The decision by the respondent to refuse to grant a certificate nolle prosequi to the applicant be and is hereby set aside.'
• It follows that the broad prosecutorial right of the FSA was confirmed, at paras. 11-14: 'The general position, therefore, is that the FSA has always been able to bring any prosecution subject to statutory restrictions and conditions and provided that it is permitted to do so by its memorandum and articles of association.'