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

The matter arose from a long-standing neighbour dispute between Mr David Neville Polovin, a senior attorney, and Ms Liesel Jane Green. In May 2012, Polovin unlawfully accessed Green’s confidential credit records on the TransUnion Law Data System using a colleague’s login credentials, without her consent. After initially denying the conduct, he later admitted it. Green laid criminal charges against Polovin for contravening s 86(1) of the Electronic Communications and Transactions Act 25 of 2002. In November 2019, following representations by Polovin, the Director of Public Prosecutions (Western Cape) declined to prosecute. Green requested and was issued with a certificate of nolle prosequi under s 7 of the Criminal Procedure Act 55 of 1977, which lapsed due to procedural delays. Upon her request, the Acting DPP reissued the certificate in October 2020, including additional charges. Green then instituted a private prosecution. Polovin launched a frontal challenge in the High Court to the validity of the certificate, Green’s locus standi, the reissue and expansion of charges, and alleged that the prosecution was vexatious and contrary to public policy. The High Court dismissed the challenge and refused leave to appeal, prompting Polovin to petition the Supreme Court of Appeal.

Leave to appeal was granted, but the appeal was dismissed with costs, confirming the High Court’s dismissal of the challenge to the private prosecution.

This judgment is significant for clarifying South African law on private prosecutions under s 7 of the Criminal Procedure Act. It resolves conflicting High Court authority by holding that a certificate of nolle prosequi is not administrative action reviewable under PAJA, but merely evidentiary of a prosecutorial decision. The case affirms that decisions not to prosecute, and decisions to prosecute privately, are reviewable only on the principle of legality or rationality. It also clarifies the scope of the DPP’s role in issuing and reissuing certificates and reinforces the standing of complainants to institute private prosecutions.