Quantification of damages for malicious prosecution: A comparative analysis of recent South African and Commonwealth case law (1)

• Jurisdiction: South Africa
• Date: 24 May 2019
• Published date: 24 May 2019
• Citation: (2018) 31 SACJ 235
• Author: Chuks Okpaluba
• Pages: 235-259

Quantication of damages for

malicious prosecution: A comparative

analysis of recent South African and

1Commonwealth case law (1)

CHUKS OKPALUBA*

ABSTRACT

Malicious prosecution, along with wrongful arrest and unlawful detention

(false imprisonment), is one of the foundational com mon law causes of action

that vindicates breaches of p ersonal liberty and human dig nity rights. What,

however, is not in constant discussion is the quantum of damages which

a person who has been taken through the criminal prosecution process

maliciously and with no reasonable and probable cause has been awarded

in any given circumstance simply because very little has been written

on the subject. This article ventures into this seemingly forgotten terrain

of malicious prosecution in South African and selected Commonwealth

jurisdictions. Most often, a malicious prosecution claim is entangled with

claims for wrongful arrest and unlawful detention and, in that instance

the award can be made in the form of general damages covering the three

heads of claim. It is however possible to launch a straight-forward claim for

malicious prosecution not only to restore the victim’s impaired reputation

caused by a failed prosecution in itiated for no apparent reason and pursued,

or continued, with an improper purpose as in the recent case of Patel v

National Director of Public Prosecutions [2018] ZAKZDHC 17; but also, to

obtain compensation for the humiliation suffered, or nancial loss incurred

in the process relating to one’s business or earnings as well as the legal

costs of defending the criminal prosecution as in Bayett v Bennett [2012]

ZAGPJHC 9. This is the rst of three parts.

1 Introduction

Malicious prosecution is the third of the traditional common law

causes of action in a process that most often begins with an arrest

followed by detention. However, an action for malicious prosecution

could nonetheless be instituted where prosecution was not heralded

by an arrest and detention insofar as the elements of the action are

present.Although much has been written on malicious prosecution

as a cause of action, that is, investigating and analysing the essential

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

University of the Free St ate.

235

(2018) 31 SACJ 235

© Juta and Company (Pty) Ltd

ingredients for a successful claim, very little has been written on:

(a) whether damage(s) need to be proved in order to successfully lay

claim to the cause of action; and (b) the quantum of damages awarded

in respect of this delict except to the extent that standard textbooks

deal with the factors that inuence the amount of damages to be

awarded in their coverage of the subject of malicious prosecution.1 The

actual awards made, or a case study of such awards, does not seem

to have attracted much attention.

The absence of the academic enthusiasm to investigate the damages

aspects of the law of malicious prosecution could squarely be placed

on at least three factors. First, the instances where the action for

malicious prosecution has been successful are quite scanty when

compared with those circumstances where the defendant has been

found liable in cases involving wrongful arrest a nd unlawful detention.

Second, the instances in which damages have been awarded in respect

of malicious prosecution are even scantier because, in most cases, the

determination of the liabil ity issue tends to be dealt with rst, while the

question of quantum is postponed sine die. Subsequently, the parties

may decide to settle the damages issue by agreement and there is no

way of ascertaining the quantum agreed upon. Third, since the claim

for malicious prosecution is often lumped together with that of arrest

and detention, the nal award in that context is equally made as part

and parcel of the general damages awarded in the case. Where, as in

this instance, an award is specically made for malicious prosecution,

it is made among the other heads of damage awarded in the case.

Even in the absence of any ofcial statistics, it is possible to conjecture

from available case law that even a lesser number of cases that allege

malicious prosecution satisfy the foursome of jurisdictional facts2 for

1 See e.g. JM Potgieter, L Steyn, TB Floyd & PJ Visser Visser and Potgieter Law of

Damages 3ed (2012) 549-550; J Neethl ing, PJ Visser & JM Potgieter Law of Delict 7e d

(2015) 365-368; J Neethling, JM Pot gieter & PJ Visser Neethling’s Law of Personality

2ed (2005) 182-183; JC Van der Walt & JR Midgley Princi ples of Delict 3ed (2005) at

para 15 5.

2 The four elements have been analysed in the following articles by C Okpaluba:

‘Proof of malice in the law of malicious prosecution: A contextual analysis of

Commonwealth decisio ns’ (2012) 37 J Jurid’l Sci 65; ‘Reasonable and probable caus e

in the law of maliciou s prosecution: A review of South Afr ican and Commonwealth

decisions’ (2013) 16 PELJ 241; ‘“Prosecution” in an ac tion for malicious prosecution:

A discussion of recent Commonwealth case law’ 2013 TSAR 236; ‘Between

reasonable and probable cause and malice in the law of malicious prosecution:

A Commonwealth update’ (2016) 37 Obiter 265; ‘Does “prosecution” in the law

of malicious prosecution extend to malicious civil proceedings? A Commonwealth

update (parts 1 and 2)’ (2017) 28(2) and (3) StellLR 402 and 564, respectively;

‘Revisiting the element s of malicious prosecution in the l aw of delict: The Namibian

experience in compar ative perspective’ (2017) 30 SACJ 316.

236 SACJ.(2018) 2

© Juta and Company (Pty) Ltd