Does “Prosecution” in the Law of Malicious Prosecution Extend to Malicious Civil Proceedings? A Commonwealth Update (part 1)

• Jurisdiction: South Africa
• Citation: (2017) 28 Stell LR 402
• Date: 27 May 2019
• Pages: 402-423
• Published date: 27 May 2019

DOES “PROSECUTION” IN THE LAW OF

MALICIOUS PROSECUTION EXTEND TO

MALICIOUS CIVIL PROCEEDINGS?

A COMMONWEALTH UPDATE (PART 1)

Chuks Okpaluba

LLB, LLM (London), PhD (West Indies)

Adjunct Professor of Law, University of Fort Hare

1 Introduction

In both thei r previous and recent decisions, the courts in the six of the

Commonwealth jur isdictions, whose case law is the subject of review in th is

article all agr ee, albeit in slightly modied sequence and lang uage, that there

are fou r elements to prove in a successf ul claim for malicious prosecution.

It is well-established that a plaintiff for ma liciou s prosecution in English,1

Australian,2 Canadian,3 New Zealand,4 South Af rican,5 and the Wes t Indian

jurisdictions,6 is requ ired to sh ow that: (a) the defe ndant set t he law in motio n,

that is, i nitiated or instituted or continued the proceed ings; (b) the defendant

acted without r easonable and probable ca use; (c) the defendant acted w ith

malic e;7 and (d) that the prosecution failed.8 Damage is not often included in

1 Per Lord Keith in Martin v Watson 199 6 AC 74 80C; Moulton v Chief Constab le of the West Midlands 2 010

EWCA Civ 524 paras 26 -27; Alford v Chief Constable of Cam bridgeshire Police 2009 EWCA Civ 100

paras 48 a nd 153; Howarth v Gwent Constabulary 2011 EWHC 2836 (QB) paras 130-131; Qema v News

Group Newspapers Ltd 2012 EWHC 1146 (QB) para 2.

2 Beckett v NSW 2013 248 CLR 432 pa ra 4; A v New South Wales 2007 230 CLR 5 00 502-503.

3 Nelles v Ontari o 1989 60 DLR (4th) 609 (SCC) para 42; Proulx v Quebec (Atto rney General) 20 01 3 SCR

9 para 123; Miazga v Kvello Estate 20 09 3 SCR 339 pa ra 3; NB Real Estate As sociation v Esta brooks 2014

NBCA 48 para 22; GC v On tario (Attorney General) 2014 ONSC 455 para 36.

4 Deliu v Hong 2013 NZHC 735 p ara 68; S Todd (ed) The Law o f Torts in New Zealand 5 ed (2009) 18.2.02;

The Law of New Ze aland (Torts) 153.

5 Minister of Safe ty and Secu rity NO v Schu bach SCA 01-12-2014 case no 437/13 para 11; Rudolph v

Minister of Safe ty and Secu rity 2009 5 SA 94 (SCA) para 16; Minister o f Justice and Co nstitutio nal

Developmen t v Moleko 2008 3 All SA 47 (SCA) par a 8; Ba yett v Bennett GPJHC 17-02-2012 case no

2007/9251 para 167; Jahn v Vosloo GPPHC 20-11-2014 case no 54019/2010 para 7; Mahlangu v Ministe r

of Police 2017 5 BLLR 528 (GP) para 10.

6 Imran Khan v Atto rney General 2014 TT HC 227 para 46; Morgan v At torney General of Trinida d and

Toba go 2015 TTHC 18 para 12; Wills v Voisi n 1963 6 WIR 50.

7 For recent developme nts, vis-à-vis reasonable an d probable cause and m alice, see C Okpalu ba “Between

reasonable and prob able cause and malice in the law of malicious pros ecution: A Commonwealth upd ate”

(2016) Obiter 265.

8 Does enter ing a nolle prosequi by the Direct or of Public Prosecutio ns (“DPP”) termin ate the prosecution

in favour of the accused? Put differe ntly, is proof of i nnocence of t he accused re quired in o rder for him

or her to proce ed to a n action for maliciou s prosecut ion assum ing all the other requireme nts are met?

That was the question before the Hig h Court of Australia i n Beckett v Sta te of NSW 2013 297 ALR 206

(HCA). Cont ra the Durban D ivision case – Bekker v Min ister of Safety an d Security K ZDHC 31-07-2014

case no 79 44/2010 para s 84-102 - wher e “nolle prosequi” was bandied ar ound in the context of an alleged

wrongful arrest. The quest ion may be asked: would the prosecution have failed in Nogwebele v Minister

of Police 2016 2 SACR 66 2 (WCC) pa ras 82-8 3, where t he circ umsta nces of t he child rape vic tim dic tated

that the matte r be withdrawn becau se the complainant was not re ady to testify? Would such a with drawal

be regarded as a failed prosecution, an acquittal or withdrawal on the merits for the purposes of proving

malicious pros ecution by a plaintif f?

402

(2017) 28 Stell LR 402

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this list,9 because it i s assumed, as in mos t torts or delict actio ns, that damage

must be proved in orde r to succeed with such claims.10 Thes e requirements of

the mal iciou s prosecution caus e of action have remained constant such t hat

an at tempt to i ntroduce a f th element, t ermed “unequal relationship” by a

Canadian deputy judge in Su v Chowdhury (“Chowdhury ”)11 was rebuffed

by Then J who held that there was no authority either f rom Nelles v Ontario

(“Nelles”)12 or any other judicial source to suppor t such a fth element.

Since the main study on “prosecution” in the law of malicious prosecution

was undertaken earlier,13 the cou rts h ave been confronted with a number

of questions conce rning the initiat ion of proceedings14 a nd whether the

defendant instigated the prosecution.15 I ndeed , whethe r there wa s prosec ution;16

and whether the independent decision to prosecute was exe rcised,17 are all of

pr im ary i mpo rt anc e in de ter mi ni ng whe th er th e act ion fo r mal ici ous p ros ecu tio n

will succeed. As much as these recent cases have added new dimen sion s to

the debat e on the subject, one particular as pect that s tands out, and which is

of im mediate concern in this article, is whether civil proceedings amount to

prosecution for the purposes of the law of malicious prosecution. I n other

words, apar t from the quest ion whether the plainti ff has alleged the element

of prosecut ion in e stablishing malicious prosecution, do es “prosecution” in

this context include civil and/or disciplinary proce edings?18 Put differently,

or in the l anguage of the English law of tor t, is there a tort of malicious civil

proceeding?

There are a number of recent judgments of Commonwealth courts that

deserve more than a passing comment as ea ch of them dealt extensively

with the question posed in this article. There is Klulumani v Attorney

General of Botswana (“Klulumani”)19 which was decided on the strict

position that “prosecution” as used in malicious prosecution conte mplat es

proceeding in a c ou rt of law and not a disciplinary inquiry. Then came the

Privy Council (“PC”) judg ment in Crawford Adjusters v Sagicor Ge neral

Insurance (Cayman) Ltd (“Craw ford Ad justers”)20 where the majority of t heir

Lordships stated categorically that an action for malicious prosecution of

civil proce edings exists at common law. With the enunciation of a new t ort

of malicious civil prosecution in this case, a d ivision in the English common-

law camp arose because the judgment i ntroduced malicious civil proce eding

as a tort ak in to m alicious prosecution, or rather, as a tort in its own right.

9 See however the Na mibian case s of Mey er v Felisberto 2014 2 NR 498 para 22; Akuake v Janse n van

Rensburg 2009 1 NR 403 (HC) 40 4F where damages are insert ed as the fift h factor. Botswan a is another

exception. See t he discussion in the t ext to part 3 3 below.

10 New South Wales v Zr eika 2012 NSWCA 37 para 59; New South Wales v L andini 2010 NSWCA 157 para

20.

11 2014 ONSC 5730 paras 19, 38-39.

12 1989 60 DLR (4th) 609 (SCC).

13 C Okpaluba (2013) TSAR 236.

14 Pate Estate v Gal way-Cavendi sh 2013 ONCA 669 paras 27-35

15 Mutton v Bake r 2014 VSCA 43 para 38.

16 Su v Chowdhu ry 2014 ONSC 5730 para 26.

17 Pate Estate v Ga lway-Cavendi sh 2013 ONCA 669 para 74.

18 NB Real Estate v E stabrooks 2014 NBCA 48 para s 39, 72.

19 2010 BWHC 297.

20 2014 AC 366 (PC).

THE LAW OF MALICIOUS PROSECUTION 403

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