NPA pays Private Prosecution Unit’s legal costs after ditching opposition to mandamus application

At the eleventh hour, the National Prosecuting Authority (NPA) has abandoned its opposition to a mandamus application brought by AfriForum’s Private Prosecution Unit to compel it to perform its duty. Significantly, the NPA has also tendered costs to the unit for its last minute about turn. A murder prosecution was delayed by nearly seven years because of the NPA’s “unreasonable and irrational” conduct, which is yet another example of the organisation’s callous disregard for the interests of victims of crime.

The matter relates to the alleged murder of Theresa (Terry) Wampach-Todd by her husband, Sean Todd. On 14 January 2016, the experienced mountain biker fell to her death in the Cederberg. According to Todd, Terry was trying to take a photograph when she slipped and fell.

Although the docket contained compelling evidence implicating Todd in the murder of his wife, the NPA referred the matter for an inquest in June 2017. The magistrate found that “the Court is therefore satisfied that Theresa Wampach-Todd’s death, was brought about by an act or an omission perpetrated by Mr. Sean Todd prima facie involving or amounting to an offence.”

Despite this finding, the NPA failed to decide whether it would prosecute Todd because he had brought an application to review the inquest findings. Head of the Private Prosecution Unit, Adv. Gerrie Nel, wrote to the NPA where it was made clear that a review of the finding was not reviewable in law. The NPA nevertheless doubled down on its position.

Todd’s legal avenues were exhausted in February 2023. In May this year, Todd’s daughter Kendal Victor with support from the Unit filed the mandamus application, which the NPA indicated it would oppose. But then, on 21 July, a week before the hearing date and certainly realizing that it had no legs to stand on, the NPA finally made a decision not to prosecute Todd. This has opened the door for a private prosecution.

In the application, Victor states that the conduct of the NPA “is to say the least, shockingly unreasonable, irrational and grossly negligent. The (NPA’s) conduct, and ineptness solely caused the situation at hand. It would be just and equitable to illustrate the court’s dismay with (NPA) behaviour with a punitive cost order.

“The Director of Public Prosecution’s (DPP) conduct undermines the Constitutional obligation to prosecute without fear, favour or prejudice. This is a situation that should be guarded against by this Honourable Court,” she said.

Terry’s daughter, Kendal says the NPA’s decision not to prosecute has been received with mixed emotions. “On the one hand it’s incredibly sad that it’s taken the DPP close on seven years to decide not to prosecute. You wonder why they didn’t make that decision earlier so as not to prejudice any chances we would have at a private prosecution. On the other hand, I am more confident in a private prosecution by AfriForum’s Private Prosecution Unit than any possible prosecution by the state. 

“It breaks my heart, my mom was not only our mother, the matriarch of our family, but also a beloved grandmother of four grandchildren, and of those, she will forever be a stranger to two of them. Her loss is monumental and deserves answers,” she said. 

The Private Prosecution Unit will now apply for the docket in order to fully evaluate the evidence to decide whether a private prosecution will be initiated.

The attached affidavit contains a detailed timeline of events leading up to the decision to approach the courts to compel the NPA to perform its duty.