A lengthy and ongoing feud between two neighbours in Cape Town’s upmarket Bantry Bay has landed in the Supreme Court of Appeal and may now be the subject of a private prosecution.
The case concerns a long history of disputes between senior admitted attorney David Neville Polovin and his Kloof Road neighbour Liesel Jane Green. It took a turn this week when Polovin’s petition to the SCA to have Green blocked from instituting a private prosecution against him for allegedly invading her privacy was thrown out.
The events that triggered Polovin’s application occurred in May 2012, when Polovin accessed Green’s confidential credit records. He is alleged to have used a colleague’s login details to the Law Data System of TransUnion and in that way accessed the information without Green’s consent and knowledge, which is a prerequisite for obtaining such access.
The court heard that Polovin at first denied accessing the confidential records, but later admitted doing so.
Green responded by laying a criminal charge of contravening the Electronic Communications and Transactions Act against Polovin.
The case went to court, and after several appearances the Western Cape DPP on November 8 2019 declined to prosecute.
This prompted Green to take the matter further by applying for a certificate of nolle prosequi, enabling her to go ahead with a private prosecution. However, while she was granted the certificate, she was unable to access copies of the court docket within the required three-month period and the certificate lapsed.
On September 9 2020, and after finally getting a copy of the docket, Green applied for and was reissued the certificate, with the inclusion of an additional charge of defeating or obstructing the administration of justice.
A summons starting the private prosecution proceedings was issued and Polovin made his first appearance in court in respect of the private prosecution on January 27 2021.
Polovin then retaliated by launching “a frontal challenge to the private prosecution in the high court” in two parts. He first challenged the court’s powers to reissue the certificate along with added charges; and secondly he asked that the private prosecution summons be declared unfounded and vexatious and an abuse of court processes. He further asked for Green to be interdicted from proceeding with the private prosecution, alleging that it offends public policy.
The Cape high court disagreed with Polovin and dismissed both Parts A and B of his application, with costs, and further dismissed an application for leave to appeal those orders.
Polovin then took the matter to the Supreme Court of Appeal where he encountered the same result earlier this month, when acting judge Selewe Mothle dismissed his appeal with costs.
“It is undoubtedly a frontal challenge intended to delay the instituted private prosecution,” the court held.
“In weighing up the scale of balance between the two rights, that is the appellant’s right not to be subjected to unfounded and vexatious private prosecution, against the right of the second respondent, to have her dispute resolved by application of the law and decided in a fair public hearing before a court, as provided for in the constitution, the scale tilts in her favour,” the court said.
“The issue remains the subject of pending litigation and is therefore sub judice. It would be inappropriate to comment aside from pointing out that the state declined to prosecute the complaint and no finding of guilt or innocence has been made by any court,” Polovin said, when contacted by TimesLIVE Premium for his response.
Green declined to comment on the matter.
“My client has nothing to add to the Supreme Court of Appeal’s judgment, which is definitive on the various questions that the court was asked to consider in the appeal that was before it,” said her lawyer, Nicholas Smith.
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