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



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

+2776 741 6666




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.




After-hours bail: What are my rights?

Phone George
Kleynhans    076 741 6666


By Hein Gonzales According art 50 (1) (b) of the Criminal
Procedure determine an accused in custody after arrest must be informed as soon
as possible of his right to apply for bail and release. The latter is not a
choice but a direct order and command for execution by police. Arrest and
accompanying imprisonment on a Friday night is not the best way to kick off a
weekend. There is often confusion about after-hours bail can be granted outside
the court, and on the other side granted bail by a court. Part 1 of this
discussion deals with after-hours bail, and Parts 2 and 3, which will be placed
on Maroela in the coming weeks, will deal with bail granted by a court. The
starting point will be in this process to determine which charges you are
arrested and charged. The latter will be the determining factor whether you
will be eligible for after-hours bail or not. The Criminal Procedure Act 51 of
1977 (hereinafter referred to as the “Act”), several schedules which
involved offenses are divided and bail accordingly granted these schedules.
Read the schedules at and make sure you know your rights. Where
do we start? Bail granted by SAPS Under section 59 of the Act, bail is granted
to you as accused before your first appearance in court if you are charged with
an offense that is not in Part II and Part III of Schedule 2 fall. Bail can
only be done by a member SAPS be granted rank of officer or higher rank,
provided that consultation with the investigating officer should be on the
merits. When considering the bail application, the police officer fairness to
evince through consideration of all relevant facts. If the police officer
maliciously refuse bail or refused to exercise its discretion, it could lead to
civil claims against the official concerned. Factors that should be considered
is whether you have a fixed address and whether you will attend your hearing
without having to flee. What will the process? You are arrested and get in
touch with your attorney under your constitutional right enshrined in Article
35 of the Constitution. Your lawyer shows up at the police station and talk to
the investigating officer and determine the charge. Your attorney will talk to
the police officer and investigator and negotiations for bail if an offense is
not in Part II and Part III of Schedule 2 fall. bail be determined by police.
You pay the bail amount and released. After this bail is granted, you will have
to appear the next day in court on the charges against you. The police officer
will tell you handed a J398-borgtogakte that all the information contained as
court date, time, place and charges against you. Example: There comes an
argument between you and the car attendant at a parking lot on a fee. The car
guard attack you angry and you re the attack mode by hitting him in
self-defense. The car attendant will serve malicious a complaint of assault
against you and you are arrested. Can the police to allow you bail? Yes, you
can bail granted by police because it is not an offense falling within Part II
or Part III of Schedule 2 does. Bail granted by a public prosecutor may grant a
prosecutor for you as accused bail terms section 59A of the Act for your first
appearance in court, provided you charged of an offense as enshrined in
Schedule 7 of the Act. This kind of bail can only be granted by a prosecutor
who is authorized by the Director of Public Prosecutions, and after consultation
with the investigating officer. The prosecutor may also impose certain
conditions on the granting of bail as you might have no contact with witnesses
and / or your sign every day at the local police station, or even to report for
an identification parade. What will the process? You are arrested and get in
touch with your attorney under your constitutional right enshrined in Article
35 of the Constitution. Your lawyer shows up at the police station and talk to
the investigator and / or inhegtenisnemende officer and determine the charge.
Your attorney approach the after-hours prosecutor on duty and asked him to come
to the police station for negotiations. Your lawyer will then SAPS officer,
investigator and prosecutor talks and negotiations fall for bail if the offense
in schedule 7 of the Act. Bail is set by the state prosecutor. You pay the bail
amount and released. This kind of bail may be granted subject to the following
conditions: This kind of bail can be granted only for your first court appearance
the following day. This kind of bail is only valid until your first court
appearance, and the court may decide to extend the bail, edit, decided to
reconsider or even to listen to a new application under section 60 of the Act
the application for bail. Example: You died in a car accident in question
during a person. The state alleges that you were negligent and you are charged
with manslaughter. May allow a prosecutor to you bail? Yes, because the offense
falls within Schedule 7 of the Act. What if police and the prosecutor bail or
can not allow? If you do not fall within the scope of the framework above, your
matter will be referred to the court for a formal bail application under
section 60 of the Act and within 48 hours after your arrest. This kind of bail
will be addressed in Part 2 of this series. The investigating officer and
prosecutor could bail refused on the following grounds: There are previous
convictions and convictions of other offenses and / or of the same offenses.
There are pending cases of the same type and / or other offenses. There is
concern that you have no fixed address and therefore is a flight risk. There is
concern that you can interfere your probably in the investigation and / or
witnesses. There are good grounds that you pose a danger to the public and / or
complainant. Your four tips for after-hours bail Make sure that you are aware
of your rights under law and the Constitution. Tree always within the framework
of legislation (no cowboys!). Never trying to circumvent legislation, but
ensure that you take a stand and ensure that justice is done. With certain
rights also come responsibilities. Ensure the synergy between the two as they
interact. For more safety tips please check out AfriForum’s latest video on
your constitutional right to protect yourself and your family during an attack
on yourself, more specifically your rights and responsibilities.

Borgaansoek na-ure

Borgaansoek na-ure

Nauurse borgtog: Wat is my regte?



Hein Gonzales is bestuurder van risiko en ondersteuning by AfriForum se afdeling vir gemeenskapsveiligheid.Foto: Verskaf.

Deur Hein Gonzales

Luidens art 50(1)(b) van die Strafprosesregwet word bepaal ʼn beskuldigde wat in aanhouding is ná inhegtenisneming moet so spoedig moontlik ingelig word van sy reg om aansoek te doen om borgtog en vrylating. Laasgenoemde is nie ʼn keuse nie, maar ʼn direkte bevel en opdrag vir uitvoering deur SAPD.

Inhegtenisneming en die gepaardgaande gevangesetting op ʼn Vrydagaand is nie die beste manier om ʼn naweek af te skop nie. Daar is dikwels verwarring oor nauurse borgtog wat buite die hof toegestaan kan word, en aan die ander kant borgtog toegestaan deur ʼn hof. Deel 1 van hierdie bespreking handel oor nauurse borgtog, waarna Deel 2 en 3, wat in die komende weke op Maroela geplaas sal word, gaan handel oor borgtog wat toegestaan word deur ʼn hof.

Die vertrekpunt in hierdie proses gaan wees om vas te stel op welke klagte jy in hegtenis geneem en aangekla is. Laasgenoemde gaan die bepalende faktor wees of jy in aanmerking sal kom vir nauurse borgtog, al dan nie. Die Strafprosesregwet, wet 51 van 1977 (hierna genoem die “Wet”), het verskeie skedules waarin die betrokke misdrywe verdeel word en borgtog word dienooreenkomstig hierdie skedules toegestaan. Gaan lees gerus die skedules by en maak seker jy weet wat jou regte is.

Waar begin ons?

Borgtog toegestaan deur SAPD

Kragtens art 59 van die Wet kan borgtog toegestaan word aan jou as beskuldigde voor jou eerste verskyning in die hof indien jy aangekla word van ʼn misdryf wat nie in Deel II en Deel III van Skedule 2 val nie. Borgtog kan slegs deur ʼn lid van SAPD met rang van onderoffisier of hoër rang toegestaan word, op voorwaarde dat daar oorlegpleging met die ondersoekbeampte moet wees oor die meriete. By die oorweging van die borgtogaansoek moet die SAPD-beampte billikheid aan die dag lê deur oorweging van alle tersaaklike feite. Indien die SAPD-beampte kwaadwillig die borgtog weier of weier om sy diskresie uit te oefen, kan dit lei tot siviele eise teen die betrokke beampte.

Faktore wat oorweeg moet word, is of jy ʼn vaste adres het en of jy jou verhoor sal bywoon sonder om te vlug.

Hoe gaan die proses lyk?

  • Jy word in hegtenis geneem en tree in verbinding met jou prokureur kragtens jou grondwetlike reg soos verskans in art 35 van die Grondwet.
  • Jou prokureur daag op by die polisiestasie en gesels met die ondersoekbeampte en stel vas wat die aanklag is.
  • Jou prokureur sal dan met die SAPD-beampte en ondersoekbeampte gesels en onderhandel vir borgtog indien dit ʼn misdryf is wat nie in Deel II en Deel III van Skedule 2 val nie.
  • Borgtog word vasgestel deur SAPD.
  • Jy betaal die borgtogbedrag en word vrygelaat.

Nadat hierdie borgtog toegestaan is, sal jy die volgende oggend in die hof moet verskyn op die aanklagte teen jou. Die SAPD-beampte sal vir jou ʼn J398-borgtogakte oorhandig wat al die nodige inligting vervat soos hofdatum, tyd, plek en klagte teen jou.

Voorbeeld: Daar breek ʼn woordewisseling uit tussen jou en die karwag by ʼn parkeerterrein oor ʼn fooi. Die karwag val jou aan uit woede en jy weer die aanval af deur hom te slaan ter selfverdediging. Die karwag gaan dien kwaadwillig ʼn klagte van aanranding teen jou in waarna jy in hegtenis geneem word. Kan die polisie vir jou borgtog toestaan? Ja, jy kan borgtog toegestaan word deur SAPD aangesien dit nie ʼn misdryf is wat val binne Deel II of Deel III van Skedule 2 nie.

Borgtog toegestaan deur ʼn staatsaanklaer

Kragtens art 59A van die Wet kan ʼn staatsaanklaer vir jou as beskuldigde borgtog toestaan voor jou eerste verskyning in die hof, op voorwaarde dat jy aangekla is van ʼn misdryf soos verskans in skedule 7 van die Wet. Hierdie soort borgtog kan slegs verleen word deur ʼn staatsaanklaer wat daartoe gemagtig is deur die direkteur van openbare vervolging, asook ná oorlegpleging met die betrokke ondersoekbeampte. Die staatsaanklaer kan ook sekere voorwaardes oplê ten opsigte van die verlening van borgtog soos dat jy geen kontak mag hê met getuies nie en/of jou elke dag aanmeld by die plaaslike polisiestasie, of selfs moet aanmeld vir ʼn uitkenningsparade.

Hoe gaan die proses lyk?

  • Jy word in hegtenis geneem en tree in verbinding met jou prokureur kragtens jou grondwetlike reg soos verskans in art 35 van die Grondwet.
  • Jou prokureur daag op by die polisiestasie en gesels met die ondersoekbeampte en/of inhegtenisnemende beampte en stel vas wat die aanklag is.
  • Jou prokureur nader die nauurse staatsaanklaer aan diens en versoek hom om na die polisiekantoor te kom vir onderhandelings.
  • Jou prokureur sal dan met die SAPD-beampte, ondersoekbeampte en staatsaanklaer gesels en onderhandel vir borgtog indien die misdryf binne skedule 7 van die Wet val.
  • Borgtog word vasgestel deur die staatsaanklaer.
  • Jy betaal die borgtogbedrag en word vrygelaat.

Hierdie soort borgtog kan toegestaan word onderhewig aan die volgende voorwaardes:

  • Hierdie soort borgtog kan slegs verleen word voor jou eerste hofverskyning die volgende dag.
  • Hierdie soort borgtog is slegs van krag tot jou eerste hofverskyning, waarna die hof kan besluit om die borgtog te verleng, wysig, besluit om die aansoek om borgtog te heroorweeg of selfs ʼn nuwe aansoek kragtens art 60 van die Wet aan te hoor.

Voorbeeld: Jy is in ʼn motorongeluk betrokke waartydens een persoon oorlede is. Die staat beweer dat jy nalatig was en jy word aangekla van strafbare manslag. Kan ʼn staatsaanklaer vir jou borgtog toestaan? Ja, aangesien die misdryf binne skedule 7 van die Wet val.

Wat as SAPD en die staatsaanklaer nie borgtog kan of wil toestaan nie?

Indien jy nie binne die bestek van die raamwerk hierbo val nie, sal jou aangeleentheid na die hof verwys word vir ʼn formele borgtogaansoek kragtens art 60 van die Wet en wel binne 48 uur ná jou inhegtenisneming. Hierdie soort borgtog sal in Deel 2 van hierdie reeks hanteer word.

Die ondersoekbeampte en staatsaanklaer kan moontlik borgtog weier op die volgende gronde:

  • Daar is vorige veroordelings en skuldigbevindings van ander misdrywe en/of van dieselfde misdrywe.
  • Daar is hangende sake van dieselfde soort en/of ander misdrywe.
  • Daar bestaan kommer dat jy geen vaste adres het nie en dus ʼn vlugrisiko is.
  • Daar bestaan kommer dat jy jou heel moontlik kan inmeng in die ondersoek en/of getuies.
  • Daar is goeie gronde dat jy ʼn gevaar vir die publiek en/of klaer inhou.

Jou vier wenke vir nauurse borgtog

  • Maak seker dat jy bewus is van jou regte kragtens wetgewing en die Grondwet.
  • Tree altyd binne die raamwerk van wetgewing op (geen cowboys!).
  • Moet nooit wetgewing probeer omseil nie, maar verseker dat jy standpunt inneem en verseker dat geregtigheid geskied.
  • Met sekere regte kom daar ook verantwoordelikhede. Verseker die sinergie tussen die twee aangesien hulle in wisselwerking is.

Vir nog veiligheidswenke gaan kyk gerus na AfriForum se jongste video oor jou grondwetlike reg om jouself en jou familie te beskerm tydens ʼn aanval op jouself, meer spesifiek jou regte en verantwoordelikhede.


Liquidation or business rescue – what is the difference?
09 August 2017

“My family company has been operating successfully for nearly 20 years. Over time I’ve also managed to get a few investors into the business. The last year however has been tough and we are struggling to make ends meet. I feel its decision time about the future of the business, but was wondering whether liquidation is the best route or must I rather look at business rescue? What is the difference between these two options?”

In difficult economic times, many companies are having to come to terms with making tough financial decisions. Filing for liquidation, has in the past been a route considered by many companies. The  Companies Act 71 of 2008 (“Companies Act”), introduced another intervention mechanism, namely business rescue, as an option to be considered by a company that is in financial distress.

In terms of the Companies Act, a company will be considered to be in financial distress, if the company is not in a position to reasonably pay all of its debts as they become due and payable within the immediately ensuing six months or it appears reasonably likely that the company will become insolvent in the immediately ensuing six months. Once it has been established that a company is in financial distress, it must then be considered whether to file for liquidation or undergo business rescue.

To make this decision, the objective of each option must be considered as well as the process to be followed by a company.

With liquidation the objective is to dispose of the assets of the company and apply the proceeds thereof to pay the creditors of the company in terms of a legal order of preference. The purpose of business rescue on the other hand is to rehabilitate the financially distressed company and to rescue it by means of a plan that will help the company to turn its financial distressed position around and trade on a solvent basis again. Liquidation and business rescue proceedings can be launched either voluntarily or by way of an application to court by creditors and affected parties.

To initiate the voluntary liquidation process a company must decide on a date for the institution of liquidation proceedings. As from this date the company will not be allowed to incur any further debt but can continue trading. Any income then derived will go into the insolvent estate, and may not be used by the company. Once the date has been selected the shareholders of the company must resolve, by special resolution, to place the company under liquidation and an accompanying court application has to be submitted to the High Court. The court will first issue a provisional liquidation order before issuing the final order and notice must be given to all creditors before the final liquidation order is granted. Once the provisional liquidation order is granted no creditor may institute any legal action against the company and any legal action instituted will be suspended. The Master of the High court will appoint a liquidator who will determine the assets of the company, hold meetings with creditors, collect outstanding debt, sell assets, pay creditors and finalise the estate, after which the matter will be closed.

To initiate business rescue proceedings voluntarily the board of the company may resolve to place the company under business rescue if the company is financially distressed and there appears to be a reasonable prospect of rescuing the company. The resolution may not be adopted by the board if liquidation proceedings have been initiated by or against the company and will have no force or effect until it has been filed with the Companies and Intellectual Property Commission (“CIPC”). The company must notify all its creditors and appoint a business rescue practitioner (“BRP”) within five days after the resolution has been adopted and filed with CIPC. During business rescue proceedings no legal action including enforcement action may be instituted against the company, except with written consent thereto by the BRP or with leave of a court. The BRP is responsible for assessing the affairs of the company, holding meetings with creditors, other affected persons and management of the company and compiling a business rescue plan which needs to be voted on and accepted by all affected persons. The business rescue plan must indicate amongst others the probable dividends creditors would have received if the company was placed under liquidation and must prove that under business rescue the company is able to generate a better monetary return for its creditors than in the event of liquidation. The plan must further set out the advantages of business rescue over liquidation. Once the business rescue plan is adopted it binds the company, creditors and holders of any securities against the company.

Business rescue compared to liquidation provides for the company’s debt to be managed and contracts restructured and reorganized in order for the company to continue to trade on a solvent basis rather than selling off all of the company’s assets and the company being shut down as in the case of liquidation. If it does happen that business rescue is unsuccessful, the BRP may apply to court to have the company liquidated. The business rescue process is therefore a last lifeline to try and turn a company around before it has to close its doors when liquidated.

In your case, your views on the potential to rescue the company and the degree of financial distress the company is in, will determine which of these proceedings are the most appropriate route (if any) to be followed. Consider enlisting the help of a legal practitioner to help discuss in more detail the pro’s and con’s of these legal options for your company.