Judges slate private prosecution

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Published May 18, 2015

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Durban - The fairness of a private prosecution brought by a wealthy Umhlanga businessman has been questioned by three high court judges.

Niemesh Singh embarked on a private prosecution of Arnold Nundalal in the Durban Regional Court in 2013. The charges related to allegations that Nundalal coerced two other men to make false statements that they had seen Singh tampering with an access control mechanism at La Lucia business premises he had leased to Nundalal’s then employer, Glenrand Marine Insurance Brokers. The allegations were contained in a high court application brought by Glenrand in response to an eviction application brought by Singh’s firm, United African Marine Insurance Brokers, in 2009.

Singh laid criminal charges against the three men, saying they had put up “false, defamatory and degrading evidence” against him, but the director of public prosecutions declined to prosecute. Singh then sought to prosecute Nundalal privately with the other two men named as witnesses who would testify against him.

Private prosecutions in the country are rare and expensive, as the private prosecutor has to hire his own legal team to prosecute the case and has to put down security for costs. The prosecutor could also end up paying the accused’s legal costs if there is an acquittal.

In a recent judgment in a review application brought by Nundalal to challenge the prosecution, Judge Dhaya Pillay, with two judges concurring, set aside a summons issued by the court against Nundalal and the regional magistrate’s ruling that the matter could go ahead. She said there was serious doubt that Nundalal would get a “fair trial”.

“The generous doses of vitriol oozing from the private prosecutor’s affidavit dispel any hope of a fair trial for the applicant (Nundalal). The private prosecutor declared himself to be a wealthy man, thus tainting his assertion that his pursuit of the applicant arises from his quest for justice.”

She also found that Singh had failed to satisfy certain requirements of a private prosecution.

She said Singh, as a successful businessman, should realise that the costs of litigation did not justify any benefits he could get.

“There are other cost-effective ways of clearing his name if it has been tarnished.”

She added that the private prosecution amounted to an abuse of process and state resources, as it should have been brought in a magistrate’s court, not a regional one, and followed the requirements set out by the law.

Judge Pillay also found that Singh had not shown that he had suffered any personal injury, which was a requirement in a private prosecution. She ordered that Singh pay Nundalal’s costs of the review application.

The Mercury

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