The Court of Appeal has dismissed Andries van Tonder’s appeal over a 2009 decision not to let him issue a criminal summons as a “common informer”, saying the challenge was moot and had been overtaken by events.
In an ex tempore judgment delivered on 12 April 2024, President Birmingham said the appeal concerned the High Court’s refusal in June 2010 to grant leave for judicial review of the Trim District Court decision. Van Tonder had first applied for leave in May 2010, about seven months after the District Court ruling. At that time, the six-month limit for seeking certiorari had expired, though an extension could be sought.
The proposed summons related, according to the judgment, to alleged offences under child care and child abuse reporting laws, as well as legislation implementing the UN Convention against Torture. The source does not set out the alleged conduct or identify any person as having committed an offence.
The Court of Appeal recounted that Van Tonder later appealed to the Supreme Court alongside a related matter. He told the court that the Supreme Court had indicated that in-camera proceedings did not prevent investigation of criminal offences allegedly committed during them, and that the case now before the Court of Appeal had been put on hold. The judgment also says the High Court later made an order to the same effect, which appeared to satisfy Van Tonder.
He subsequently returned to the District Court and renewed his attempt to obtain a summons, but was unsuccessful. The Court of Appeal was not given details of what occurred in that later application. It also noted that Van Tonder had brought plenary proceedings and that a settlement had been negotiated, but he continued to challenge the 2009 decision.
The appeal court said that even if Van Tonder succeeded, the case would return to the High Court, and any further opportunity to apply in the District Court had already been available to him in 2013. It described the challenge to the 2009 ruling as entirely moot. The judges also said they had not been given information showing that the District Court judge lacked a proper basis for refusing the summons, or enough detail to establish why the High Court had refused leave in 2010.
The court dismissed the appeal. It did not decide whether the alleged offences occurred or whether a summons should have issued.