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
• 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, a long with wrongful ar rest and unlawf ul 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 qu antum of damages wh ich

a person who has been taken th rough the crim inal prosecution proce ss

maliciously and with no reason able and probable cause has been awarded

in any given circumst ance simply because very lit tle has been writ ten

on the subject. Thi s article ventures i nto this seemingly forgot ten terrain

of malicious prosecution i n South Africa n and selected Commonwealth

jurisdictions. Mo st often, a malicious pro secution claim is enta ngled with

claims for wrongful a rrest and unlaw ful detention and, in t hat instance

the award can be made in the for m of general damages coveri ng the three

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

malicious prosecution not on ly to restore the victim’s impai red reputation

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

or continued, with an imprope r purpose as in the rece nt case of Patel v

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

obtain compensation for the hum iliation suffered , or nancial loss incu rred

in the process relating to one’s business or e arnings as well as t he legal

costs of defending the cri minal prosecut ion as in Bayett v Benn ett [2012 ]

ZAGPJHC 9. This is the rst of t hree parts.

1 Introduction

Malicious prosecution is the thi rd of the traditional common law

causes of action in a process that most often beg ins 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 t he elements of the action are

present. Although much has been w ritten on malicious prosecution

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

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

University of the Free St ate.

235

(2018) 31 SACJ 235

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ingredients for a successful claim, very l ittle has been writ ten 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 da mages awarded

in respect of this delict except to the ex tent 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, do es not seem

to have attracted much attention.

The absence of the academic enthusiasm to investigate the damages

aspects of the law of malicious prosecut ion could squarely be placed

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

malicious prosecution has been successfu l are quite scanty when

compared with those circumst ances where the defendant has been

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

Second, the instances in which d amages have been awarded in respect

of malicious prosecution are even scantier because, in most c ases, the

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

question of quantum is postponed sin e die. Subsequently, the parties

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

way of ascertaining the qua ntum agreed upon. Third , since the claim

for malicious prosecution is often lumped together with th at of arrest

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

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

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

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

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 t he foursome of jurisdictional fact s2 for

1 See e.g. JM Potgieter, L Steyn, TB F loyd & PJ Visser Visser and Po tgieter 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

pa ra 15 5.

2 The four elements have been a nalysed in the followi ng articles by C Okpalub a:

‘Proof of malice in t he law of malicious pros ecution: A context ual 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 C ommonwealth case law ’ 2013 TSAR 236; ‘Between

reasonable and probable caus e and malice in the law of m alicious prosec ution:

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

of malicious prosec ution extend to mal icious civil procee dings? A Commonwealt h

update (parts 1 an d 2)’ (2017) 28(2) and (3) Stell LR 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

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