Polovin v The Director of Public Prosecutions, Western Cape and Others

Mr David Polovin (an attorney) and Ms Liesel Jane Green were neighbours in Bantry Bay, Cape Town. In May 2012, Polovin accessed Green's confidential credit records on the TransUnion Law Data System without her consent, using a colleague's login details. This constituted a contravention of s 86(1) of the Electronic Communications and Transactions Act 25 of 2002 (ECTA). Green laid criminal charges. After representations by Polovin's counsel and several court appearances, the Director of Public Prosecutions (DPP) declined to prosecute on 8 November 2019. Green requested a certificate of nolle prosequi under s 7 of the Criminal Procedure Act 51 of 1977 (CPA) to institute a private prosecution. The Acting DPP issued the certificate on 20 May 2020, which lapsed after three months. A second certificate was re-issued on 14 October 2020, including additional charges of fraud, contravention of ss 86(1) and 86(3) of ECTA, contravention of s 68 of the National Credit Act, and defeating/obstructing the administration of justice. Green served summons on 30 November 2020. Polovin launched a frontal challenge in the Western Cape High Court to stop the private prosecution, which was dismissed. He then sought leave to appeal.

• Whether leave to appeal should be granted under s 17(2)(b) read with s 17(1)(a)(i) and (ii) and s 17(6)(a)(i) and (ii) of the Superior Courts Act 10 of 2013
• Whether the issuing of a certificate of nolle prosequi constitutes administrative action reviewable under PAJA
• Whether the jurisdictional requirements of s 7(1)(a) of the CPA for issuing a certificate of nolle prosequi were met
• Whether the Acting DPP was entitled to re-issue the certificate of nolle prosequi after the first certificate lapsed
• Whether additional charges could be included in the re-issued certificate beyond those originally charged by the State
• Whether the private prosecutor had locus standi and a substantial and peculiar interest arising from actual injury individually suffered
• Whether the private prosecution was unfounded, vexatious, and contrary to public policy

1. The application for leave to appeal is granted. 2. The appeal is dismissed with costs.

The binding legal principles established are: (1) A certificate of nolle prosequi issued under s 7(2)(b) of the CPA is not administrative action reviewable under PAJA; it is merely a formal document evidencing the DPP's decision not to prosecute. The decision not to prosecute itself is reviewable only on grounds of legality and rationality, not under PAJA. (2) When issuing a certificate under s 7(2)(b), the DPP need only form a prima facie view from the statements and affidavits in the docket that the person requesting the certificate meets the jurisdictional requirements of s 7(1)(a) of the CPA. The DPP does not conduct an evidentiary inquiry or 'prove' compliance. (3) The DPP is not functus officio after issuing a certificate and may re-issue it, as the right to institute private prosecution prescribes 20 years after the offence, not when the certificate lapses. (4) Additional charges may be included in a re-issued certificate if they are based on the same statements and affidavits in the docket that the State initially considered. (5) 'Injury' under s 7(1)(a) includes injury to personality rights such as dignity and privacy, not only physical or property injury. (6) Frontal challenges to private prosecutions should be discouraged where they lack merit and primarily serve to delay the commencement of criminal trials, particularly where the accused has alternative remedies available (such as cost orders under s 16 of the CPA).

The Court made several non-binding observations: (1) While caution should be exercised in determining what constitutes reviewable administrative action, not every administrative act by state officials constitutes an 'administrative action' under PAJA unless all definitional elements are met. (2) The limitation on 'any person' in s 7(1)(a) is designed to refer primarily (though not exclusively) to complainants in criminal cases. (3) The Court noted that the private prosecution presents an opportunity to bring ongoing disputes between the parties to finality and that this would be in the public interest. (4) The Court commented critically on Polovin's conduct as an attorney in issuing provocative communications to Green's attorney after the DPP declined to prosecute ('we'll find out whether she's willing to waste her own money on her nasty vendetta'), suggesting he should have known better. (5) The Court noted that private prosecutions carry enormous financial risk for the private prosecutor, who may face punitive costs under s 16 of the CPA if the prosecution is found unfounded and vexatious. (6) The Court observed that in weighing the balance between an accused's right not to be subjected to unfounded prosecution and the complainant's s 34 constitutional right of access to courts, the latter should prevail where the frontal challenge lacks merit.

This judgment provides important guidance on private prosecutions in South African law: (1) It clarifies that a certificate of nolle prosequi is not administrative action reviewable under PAJA but merely a formal document evidencing a prior decision; (2) It reconciles conflicting High Court judgments on the jurisdictional requirements of s 7(1)(a) of the CPA; (3) It confirms the DPP need only form a prima facie view of compliance with jurisdictional requirements when issuing the certificate, not conduct a full evidentiary inquiry; (4) It establishes that the DPP can re-issue certificates and include additional charges based on the same docket materials; (5) It recognizes that injury to personality rights (dignity and privacy) can constitute the 'injury' required under s 7(1)(a); (6) It confirms that frontal challenges to private prosecutions should be discouraged where they lack merit and serve only to delay proceedings; and (7) It emphasizes the constitutional right of access to courts (s 34) in the context of private prosecutions. The judgment represents a significant development in balancing the rights of accused persons with the rights of victims to pursue justice through private prosecution.