Revisiting the elements of malicious prosecution in the law of delict: The Namibian experience in comparative perspective

• Jurisdiction: South Africa
• Date: 24 May 2019
• Author: Chuks Okpaluba
• Published date: 24 May 2019
• Pages: 316-338
• Citation: (2017) 30 SACJ 316

Revisiting the elements of malicious

prosecution in the law of delict: The

Namibian experience in comparative

perspective

CHUKS OKPALUBA*

ABSTRACT

Proof of damage is the  fth element in a claim for ma licious prosecution in

Namibia. The other four element s are the same as those ca nvassed in the

South Africa n and other Commonwealth jur isdictions such as Aust ralia and

Canada, namely that: t he defendant initiated or in stigated the prosecution;

acted without reasonable and probable cause; act ed with an improper

purpose; and that the pro secution failed. The rece nt judgment of the High

Court of Namibia i n Mahupelo v Minister of Safety and Secur ity 2017 (1) NR

275 (HC) which deals with issues not previously canvass ed in Namibian

courts is thus a welcome addition to t he law of malicious prosecution. T he

remarkable lesson emanati ng from the Mahupelo judgme nt is that even

if the defendant is held not liable in a cla im for malicious prosecut ion

because a reasonable and probable cause exi sted at the time the decision to

prosecute was taken; that g round could turn out to be un reasonable once

it becomes obvious that it no longer existed . Thus, instead of withd rawing

or terminating t he prosecution, the prosecutor m aintains or conti nues it

knowing that reasonable and probable caus e no longer existed, hence

triggering an inqu iry into the prosec utor’s improper motive and whether

liability would att ach in the circum stances.

1 Introduction

In the recent case of Mahupelo v Minister of Safety and Security,1

a number of novel and complex issues not hitherto decided by

Namibian courts were rais ed.2 These issues included rst, the

‘proper interpretation to be given to the requirements for malicious

prosecution’; and second, the question whether the ‘continuation of a

prosecution beyond a certain date when there is no longer a reasonable

and probable cause, would also constitute malicious prosecution in

* LLB, LLM (Lo ndon), PhD (West Indies), Adjunct Professor of Law, Universit y of Fort

Hare.

1 Mahupelo v Minister of Safet y and Security 2017 (1) NR 275 (HC).

2 Mahupelo v Minister of Safety an d Security supra (n1) at para [11].

316

(2017) 30 SACJ 316

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terms of the Namibian common law.3 Prior to the Mahupelo judgment,

the courts in Nam ibia have had occasion, albeit in a scant number of

cases, to decide on claims for malicious prosecution as well as t he

damages to be awarded where the cause of action was successful ly

established.4

This article set s out to analyse the Mahupelo judgment which

represents one instance where a court i n Namibia has comprehensively

dealt with a claim for damages for malicious prosec ution since the

coming of democratic constitutional ism in that country i n 1990. Unlike

the law of arrest and detention which has attr acted a regular ow

of litigation,5 claims for damages for malicious prosecution are not

equally comparable in Namibian case l aw.6 Particular attention is paid

in this discu ssion to the challenges with which, the trial judge was

confronted, coupled with the judge’s resort to the developments in

other common law jurisdictions for gu idance in responding to those

challenges — Australia and Canad a — where similar issues have

been addressed by the courts. W hile the courts i n Australia have, in

many instances, answered the question s connected with continuing or

maintaining prosec ution, the Canadian authorities provide guida nce

with regards to the elements of malice and reasonable and probable

cause. In this analysis, therefore, the facts of Mahup elo are briey

stated rst. Then, the dis cussion that follows is based on the judgment

of the court along the lines of the issues r aised, namely: revisiting

the elements of the action for malicious prosecution in the context of

Namibia. In that regard, the i nvestigation leads to the discussion of:

(a)instigation of the prosecution or setti ng the legal process in motion;

(b) continuing that proceeding even when it has become obvious that it

is a fruitless exercise; (c) eventually withdrawing the charge(s) thereby

calling into question the role of the prosecutor; (d) the absence of

reasonable and probable cause; and (e) proof of malice.

3 Mahupelo v Minister of Safety an d Security supra (n1) at para [11].

4 Meyer v Felisber to 2014 (2) NR 498 (HC) at paras [31]-[39].

5 See e.g. Tjipepa v Minister of S afety and Security 2015 (4) NR 1133 (HC); Sheefeni v

Council of the Municipality of Windho ek 2015 (4) NR 1170 (HC); Minister of Safety

and Security v Kabo tana 2014 (2) NR 305 (SC); Iyambo v Minister of Safety and

Security 2013 (2) NR 562 (HC); Sheehama v Minister of Safet y and Security 2 011

(1) NR 294 (HC); Gabriel v Minister of Safety and Secur ity 2010 (2) NR 648 (HC);

Government of N amibia v Getachew 2008 (1) NR 1 (SC); S v Kazondandon a 2007 (2)

NR 394 (HC); McNab v Minister of Home Affair s NO 2007 (2) NR 531 (HC); Minister

of Home Affairs v Bauleth 20 04 (1) NR 68 (HC).

6 Indeed, a perus al of Juta’s Index to the Namibia n Law Reports 1990 -2016 at 518

shows only two reporte d cases listed unde r ‘malicious prosec ution’: Akuake v

Jansen van Rensbur g 2009 (1) NR 403 (HC); Meyer v Felisb erto 2014 (2) NR 498

(HC). Sometimes, however, an action for malicio us prosecution is ent angled with

claims for unlaw ful arrest a nd detention - Malumbano v Gov ernment of Namibia

(I 317/2012) [2013] NAHCMD 113 (25 April 2013) at paras [7]-[27].

Revisiting the elements of malicious prosecution in the law

of delict: The Namibian experience in comparative perspective 317

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