Quantification of damages for malicious prosecution: A comparative analysis of recent South African and Commonwealth case law (3)

• Jurisdiction: South Africa
• Pages: 28-51
• Published date: 04 July 2019
• Date: 04 July 2019
• Author: Chuks Okpaluba
• Citation: (2019) 32 SACJ 28

Quantication of damages for

malicious prosecution:

A comparative analysis of recent

South African and Commonwealth

case law (3)

CHUKS OKPALUBA*

ABSTRACT

Having dealt with some vita l preliminar y issues, and the case st udy on

where damages for malicious pros ecution has been awarded in South Afric a

in the rst of th ree articles; and having under taken the case st udy of the

developments in Australia, C anada and Trinidad and Tobago in the second

article, this la st instalment, t he third art icle, discusses the ca se law in three

Roman-Dutch juris dictions of Lesotho, Nam ibia and Swaziland. Speci cally

highlighted herein, is t he clear distinct ion between the heads of da mage

recoverable in the Roman-Dutch jur isdictions as compar ed to what obtains

in the English common law of tor t. The difference i s in the total absence of

claims for ‘exemplary’, ‘punitive’ or ‘aggravated’ dama ges in these Southern

African jur isdictions osten sibly based on the compensatory f unction of

damages. Such an issue aro se in the so-ca lled ‘ritual kil ler’ case, and the

Supreme Court of Swaziland wa s not prepared to import i nto the Swazi

law, ‘a highly contentious innovation of this ki nd’. On the contrary, and as

clearly demonstrated in t his presentation using Can adian case law, these

awards are constantly m ade in English, Austra lian, New Zealand, Trin idad

and Tobago and Canadian courts to pun ish, deter, denounce or repudiate

the high-handed or reprehensible conduc t on the part of the prosec utor.

The question, ultim ately, is whether the right of the person maliciously

prosecuted has been vi ndicated and the damages awarde d must have

served as a solatium to t he injured feelings of the vict im.

1 Lesotho case law

The two leading cases from Lesot ho dealing with liabilit y for malicious

prosecution1 did not advance to the quantication stage. In Moloi

* LLB, LLM (Lo ndon), PhD (West Indies), Research Fellow, Centre for Human Rights,

University of the Free St ate.

1 C Okpaluba ‘Establishing the l iability of the st ate for personal libe rty violation s

arising from ar rest, detention and m alicious prosecut ion in Lesotho’ (2017) 17 Afr

Hum Rights LJ 134 at 156-161.

28

(2019) 32 SACJ 28

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v Director of Public Prosecutions,2 where Culli nan CJ extensively

considered the action for malicious prosecution, the plaintiff’s case

collapsed on proof of the elements of absence of reasonable and

probable cause for the prosecution and the plaintiff ’s failure to establish

that the prosecutor probably intended to injure him. Similar fate befell

the plaintiff in Dir ector of Public Prosecutions v Mofubetsoane3 where

the court of appeal held that the information available to the police

and the prosecuting authorities at the time the decision to prosecute

the claimant was taken, could not have been said to be unreasonable

or, in any way, tainted by impropriety. There was equally no proof of

malicious conduct on the part of those concerned.4

However, i n Kal aile v Commissioner of Police,5 Chaka-Makhooane

J had to determine whether the plainti ff’s arrest and detention were

lawful, and his prosecution malicious. When police ofcers arrested

the plaintiff for having commit ted an offence in contravention of

section 70(6)(j)(10) of the Road Trafc Act 8 of 1981, they were not

in uniform and without apparently introducing themselves as police

ofcers, they took the plaintiff ’s cell-phone and his car keys leaving

his taxi right where it was, unattended. Riding in their car, the ofcers,

at some point wanted to release the plaintiff but the latter ref used

whence they rearrested him, took him to their station and locked him

up from 29 to 31 March 2009 when he was eventually brought to

court and acquitted. It was held that the plainti ff in the present case

had shown that the defendants set the law in motion and that the

criminal prosecution ended in his acquittal. So, what the cour t had

to consider were the elements of absence of reasonable and probable

cause and malice.6 With regard to reasonable and probable cause,

the judge accepted the popular South African judicial opinion that

it means, in the context of malicious prosecution,’ an honest belief

founded on reasonable grounds that the institution of prosecution

is justied’. And, that the concept has both subjective and objective

2 (CIV/T/647/86) [1990] LSCA 105 (27 June 1990).

3 (CIV 4/2007) [2009] LSCA 25 (9 Apr il 2009), LAC (2009-2010) 79.

4 DPP v Mofubetsoane supra (n3) at para [13].

5 (CIV/T/23/10) [2011] LSHC 130 (20 Septemb er 2011).

6 The Court of Appeal held in Dir ector of Public Prosecutions v Mofubets oane supra

(n3) at para [13] that in order to establish a cl aim for malicious a rrest, detention

and prosecution, it would b e necessary for the cl aimant to prove, inter al ia, that

the police in arr esting, detain ing and causing him to b e prosecuted, acted w ithout

reasonable and probable caus e, and with malice (or animo iniuriandi) – Minister

of Justice and Constitu tional Affairs v Moleko 2009 (2) SACR 585 (SCA) at para [8].

On the other hand, t he information avai lable to the police and the pr osecuting

authorities at the mate rial time could not b e said to have been unrea sonable or

tainted by impropr iety and hence no malicious conduct on the pa rt of the arrestors.

Quantication of damages for malicious prosecution:

A comparative analysis of recent SA and Commonwealth case law 29

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