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 :





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.



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

municipal debt

municipal debt

According to Section 118(1) of the MSA, a property may not be transferred unless a rates clearance certificate has been issued by the municipality where the property is situated. The certificate must certify that all amounts due to the municipality for municipal service fees, surcharges on fees, property rates and other municipal taxes, levies and duties (“municipal fees”) during the two years preceding the date of application for the certificate have been fully paid. This subsection says nothing about historical arrears which may be older than two years.

According to Section 118(3) an amount due for municipal fees is a charge upon the property and enjoys preference over any mortgage bond registered against the property, thereby creating a security provision in favour 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. It can include debts up to 30 years old (for rates, refuse and sewer charges) and 3 years old (for electricity and water), including debts of more than one previous owner, all of which are secured through Section 118(3) in favour of the municipality.

The issue that is the cause of the consternation is where a new (innocent) owner is now held responsible for municipal debts older than two years incurred by previous owners, without any prior knowledge that there is arrear debt and that municipalities may, as in your case, hold the new owner responsible for the arrear debt of someone else. The new owner is caught by surprise, particularly as a rates clearance certificate was issued creating the impression (even if not legally correct) that all debts with the municipality have been settled by the seller.

Our Supreme Court of Appeal has recently confirmed that a rates clearance certificate does not mean that there is no further municipal debt tied to a property. Our courts also confirmed that if the seller or previous seller is unable to pay or cannot be located, the purchaser or new owner will be held liable for these debts, in extreme cases even potentially allowing the municipality to sell the property itself to settle the arrear debts. This right (or hypothec) of the municipality over the property established by Section 118(3) thus survives any form of property transfer without exception.

Based on this court decision, it potentially leaves a new owner vulnerable to the municipality enforcing its rights over the property, even resorting to disconnecting water and electricity to force a new owner to settle arrear municipal debts.

Our courts have not however had occasion to test the constitutionality of Section 118 of the MSA, and in our view there could be constitutional grounds for testing the fairness of the current interpretation of Section 118(3) and the application thereof by municipalities.

We accordingly recommend that should the municipality persist in your case to require settlement of a previous owner’s arrear municipal debts or face disconnection of municipal services, you should approach a legal advisor for assistance.

lawful evictions

lawful evictions
Housing is a vital and primary need for each person. As most of us acquire accommodation by lease or through home loans or even through state housing provided by municipalities, it is important to know your rights and what the correct procedure is for lawful evictions.

With the exclusion of farm land, lawful evictions from residential premises, buildings or structures thereon, which includes any hut, shack, tent or similar structure or any other form of temporary or permanent dwelling or shelter, is governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, commonly known as the PIE Act.

Who has a right to evict?

The right to evict under the PIE Act is given to a registered owner of premises or to a person in control of the residential premises in question. Persons in control of residential premises include:

A lawful tenant
The executor administrating the estate which includes the premises
Any other agent acting on the lawful instructions of the owner
Who can be evicted?

People who can be evicted include the following people who remain in occupation of the premises:

Defaulting tenants whose lease agreements are terminated
Defaulting mortgagors whose bonds were cancelled and property sold in execution
Unlawful occupiers and squatters
Any other person who does not have the express consent of the owner or person in lawful control of the premises
What are the special considerations?

When dealing with eviction applications our courts are obliged to give special consideration to the elderly, children, people with disabilities and also households headed by women. All facts and circumstances of such persons must be highlighted to the court for the evaluation of such special considerations.

Lawful eviction procedure:

Step 1 – Eviction notice/demand

An eviction notice or demand serves to warn the occupant of the intended eviction and it usually provides the occupant 30 days to vacate the premises. It also affords parties the opportunity to negotiate settlement terms or terms and timeframes for vacating the premises. This letter may be served by the Sheriff of the Court, by hand at the premises or by registered post.

Step 2 – Court application for eviction

A court application by way of a notice of motion with a supporting affidavit, must be served by the Sheriff on the occupant and on the relevant municipality. This will set out the court appearance date and the dates when the occupant must file their opposing court papers if they intend to oppose the eviction application. The occupant must receive the court application papers at least 14 days before the court date.

Step 3 – Appearance in court for hearing of eviction application

A Court is obliged to consider all relevant facts relating to the eviction application at the appointed dated for hearing the application. Legal representatives of the parties will be afforded an opportunity to present oral and written legal arguments on behalf of each respective party. The Court will then through a Court Order, if the application is succesful, provide the occupant sufficient time to vacate which is ordinarily up to 1 month with a provision that should the occupant fail to vacate in that period, the Sheriff is authorized to remove the occupant and all belongings from the premises at the costs of the occupant.

Step 4 – Forced eviction of occupant by Sheriff

The Sheriff will first serve a copy of the Eviction Court Order on the occupants. The Sheriff will then usually be authorized to forcefully remove the occupants after the vacation date appointed by the court has lapsed. The Sheriff may also be authorized to obtain the assistance of the police where necessary and he may also be authorized to remove the belongings of the occupants including to demolish any erected structures. The Sheriff may take up to 3 weeks to execute the eviction Court Order after making necessary arrangements to evict the occupants.


Lawful evictions can take between 2 to 3 months to be concluded and they can become technical and even costly. A landlord, owner or a person in control who wishes to evict, and a tenant or occupant against whom eviction processes are being commenced, are in both instances advised to seek legal advice from an attorney specialising in evictions to ensure that the eviction process is lawful and carried out correctly. Following the correct lawful eviction procedure minimizes frustration, costs and potential further rental losses and avoids the need for conduct like changing locks, disconnecting utilities and even intimidating conduct, which in itself can result in legal action being taken by unlawful occupants against owners or landlords.

social media

social media


“Recently one of my employees posted a number of defamatory comments via her various social media platforms regarding some of her colleagues. I have already addressed the matter with her individually, but would like to prevent issues like this cropping up in the future and also protect my business. Most of my employees are on various social media sites and my business also has various social media accounts. Is there anything I can do?”

The benefits of social media cannot be disputed. The rise of social media has afforded the man on the street a public platform and the opportunity to stay connected and engage with others around the world in ways never anticipated before. An increasing amount of people are utilising social media platforms for both personal and professional purposes. Facebook, Twitter, Instagram, LinkedIn and Google+ have become standard ways in which information is communicated effectively and immediately. This has made many companies realise the need to take their businesses online, both in an effort to keep up with the times and to attract a wider pool of customers by promoting their businesses online, enhancing their brand visibility and using social media to gauge and improve their customer satisfaction.

But careless use of social media has become a prominent topic in the news recently. Despite the many advantages of this new digital age in which social networking has become the norm, the law has yet to develop effective mechanisms to address issues and mitigate the risks involved with the downsides of social media use. It is therefore imperative that businesses and employees remain well versed on the dangers associated with irresponsible social media use and the accompanying reputational harm that may be caused. In the age of social media, where material can go viral in a matter of minutes, it is crucial for employers to set out clear policy guidelines on acceptable social media use and the repercussions of stepping out of line. This is where a social media policy comes in.

A social media policy can be described as a corporate code of conduct which provides clear parameters for what is considered acceptable conduct on social media sites and what behaviour will not be tolerated. Ideally the policy should also highlight the consequences for breaching the company`s social media policy and have effective enforcement mechanisms in place to encourage compliance therewith. This will also help the employer to justify disciplinary action when the employee steps out of line.

Fact is, employers may face brand damage, reputational harm and suffer consequential loss of business from unsavoury posts or comments made on their business accounts or by employees of the business on their personal accounts. The ease by which a thoughtless comment or emotionally-fuelled post can bring an employer into disrepute and destroy client relationships is a reality of social media, and one which may cause irreparable harm if left unchecked. However, employers need to strike a balance between respecting their employee`s privacy and protecting their business interests. A social media policy can therefore be an effective means of managing employees’ conduct by limiting personal social media use during working hours, making sure that employees understand the risks associated with misusing social media and that they know what is expected of them. Such a policy should also clearly define what can be considered as libellous in terms of the company’s image in the general market place, and the consequences of such statements.

In a company`s social media policy, employers should therefore distinguish between, and cover both, employees` personal social media use (during and after work hours) as well as employees` use of social media for business purposes.

It is also important to understand that a company still needs a social media policy notwithstanding the fact that the business might not have its own social media accounts. As the majority of employees are engaging on social media platforms, their actions may cause harm to their employers even when the employer has no social media presence. Employers may be held liable for posts or comments made by employees on their own personal social media pages. For example, in terms of the Employment Equity Act, employers may be held liable for acts of unfair discrimination (which includes harassment) committed by their employees, unless it can be shown that the employer took reasonable steps to prevent contraventions of the aforementioned Act.

Employers should not underestimate the significance of establishing a sound social media policy in our current digital age. Having a social media policy that is applied consistently and communicated to employees will go a long way towards protecting your company`s brand and reputation as well as managing your company`s liability.



“I was recently made an offer to sell my business. I was not really planning on selling but the offer sounded interesting. However, when I received the proposed offer I noticed the purchaser was a trust. I don’t know much about trusts and it made me nervous that a trust was involved as I’ve heard stories about having to be careful when dealing with a trust. Is this true, or am I being overly cautious?”

A trust is a valid business form, and the mere presence of a trust should not invalidate a fair transaction. However the words “this case yet again demonstrates the need to be careful when dealing with a trust” are words that have frequently been uttered by our courts in recent times when warning about some of the legal perils people encounter when transacting with trusts. The reality is that trusts are a common occurrence in everyday life. But dangers in contracting with a trust do exist, making it imperative to analyse beforehand whether a trust has the necessary authority to enter into a transaction.

When establishing whether a trust has the necessary authority to enter into a specific transaction, it is advisable to first obtain –

1) a copy of the trust deed;
2) copies of the letters of authority authorising trustees to act as such on behalf of the trust;
3) a resolution of the trustees should not all of the trustees sign the agreement authorising one or more trustees to sign the agreement on behalf of the trust; and
4) ID documents to ensure that the trustee(s) is who he/they purports to be.

A trust is governed in South Africa by the Trust Property Control Act, our common law as well as the relevant provisions of the trust deed. This means that a trustee can only act in accordance with the powers afforded to him by law and specifically also the trust deed. Unless the trust deed makes another arrangement, all trustees must act jointly if the trust is to be bound by the trustees’ acts. So if a trust deed prescribes that there must at all times be a certain number of trustees in office, decisions taken by fewer trustees will be null and void.

Should a trust deed not authorise a certain transaction, then the trustee does not have the authority to conclude such a transaction and the trust will not be held liable. So if the trust deed does not contain an express or implied provision which allows trustees to pursue a purchase of your business, the trustees will not be allowed to do so and the trust will not be bound to the purchase agreement.

When a trust deed is received, it must therefore be carefully scrutinised, not only to see that it has been properly constituted, but also to establish the identity of the trustees, formalities they have to comply with, whether there are restrictions on certain type of transactions and the scope of their powers.

Obtaining a copy of the latest letters of authority issued by the Master of the High Court will show you which trustees have been given the necessary authorisation to act on behalf of the trust. If any trustee claims to act on behalf of the trust he must be authorised by the other trustees to act on their behalf by way of a written resolution passed by all the trustees in accordance with the trust deed. One should also ensure that the resolution is dated prior to the date that the contract is entered into.

Your concerns regarding dealing with a trust are fair and one should be careful when dealing with a trust. However, this should not stop a good business transaction. Do your homework well and if necessary obtain legal assistance to help you review the relevant information regarding the trust to make sure that everything is in order. And remember the golden rule when dealing with trusts – don’t assume the necessary authority is in place, make sure it is.

in community of property

in community of property


“My husband and I were married in community of property many years ago. We now however feel that it would be better for the management of our family and separate business interests if we were rather married out of community of property. Can we change our marriage system to out of community of property?”

Things change. What once seemed appropriate, a few years later may not. Fortunately, our law understands this and allows married couples to change their matrimonial property system at a later stage. But to dissuade flippant changes and to protect creditors, our law demands that a court approve such a change.

The following provides a brief overview of the process to change your matrimonial property system. It should be noted that this process may vary slightly for the different provincial High Courts.

• A notary must draft what is now termed a notarial post-nuptial contract for you containing the change in matrimonial property system you wish to apply to your marriage. This contract will for all intents and purposes have to meet similar requirements as would be necessary for a notarial ante-nuptial contract
• Your attorney will also have to assist you in giving notice to the Registrar of Deeds and your creditors of your proposed change of matrimonial property system. The notice of the proposed change to the Registrar of Deeds must be advertised in the Government Gazette and in two local newspapers in the area where the parties reside at least two weeks prior to the date of the application’s hearing. The notice to the creditors must be given by certified post at least two weeks before the date of the application.
• Your attorney will then have to assist you in lodging an application with the High Court to change your matrimonial property system. In the application the parties must make full disclosure of their financial position and it will have to be shown that –
o There are sound reasons for the change;
o That sufficient notice was given to your creditors.
o That no other person would be prejudiced by the proposed change.
• Should the court approve the change of property system, the court will authorise a notary to sign and execute the notarial post-nuptial contract and register such with the relevant Deeds Office. The result of such registration will be that the matrimonial property system has been changed to that approved by the court and provided for in the notarial post-nuptial contract.

The process to amend your matrimonial property system can take a few months to be completed and can also be costly as it involves an application to court. But it can be done. If you wish to proceed with the change of your matrimonial property system I would advise that you consult an attorney as soon as possible to get the process started.