Independent Newspapers
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Durban – Umhlanga businessman Niemesh Singh was on Wednesday given the go-ahead to proceed with his prosecution of a former tenant he accuses of lying about him. The presiding magistrate ruled that he had complied with the law governing private prosecutions.
Durban regional court magistrate Anand Maharaj said to expect a private prosecutor – usually a layman – to be au fait with all technicalities of the law would be unfair.
He also pointed to the constitution, saying that before its enactment, apartheid had flourished because of strict interpretations of the law.
However, this was no longer the case, and the law could no longer be strictly interpreted.
In the dock is former Glenrand Marine Insurance Broker manager Arnold Nundalal whom Singh has charged with defeating the ends of justice.
The charges relate to a civil case in the Durban High Court in which Singh, the owner of United African Marine Insurance Brokers, sought to evict Glenrand from a La Lucia Ridge park office he owned. In affidavits, Nundalal and others accused Singh of tampering with an access control mechanism. Singh laid criminal charges but the director of public prosecutions declined to prosecute and Singh then instituted private prosecution proceedings, issuing a summons for Nundalal to appear in court in December, when a trial date was set for this week.
Before Nundalal could plead to the charges, his advocate Gideon Scheltema, SC, brought an application arguing technicalities, that the summons had not borne the name of the private prosecutor and that the matter should be struck from the roll because of “gross irregularities” in the process.
Ruling against him on Wednesday, the magistrate said Nundalal had acted on the summons, appearing in court with his attorney and had not raised any objections then. He said while the private prosecutor had not signed the summons, it was clear from the charges who he was and his name was mentioned at least four times.
Singh had also complied with other provisions such as putting up security and the nolle prosequi (refuse to pursue) certificate from the director of public prosecutions.
Wednesday’s ruling is being taken on review to the high court by Nundalal.
The parties agreed to come back to court on November 1 to give the magistrate a progress report on the review.
The Mercury
