Malicious prosecution
Category Industry News
MALICIOUS PROSECUTION
The Supreme Court of Appeal (SCA) recently considered the issue of malicious prosecution and whether section 42 of the National Prosecuting Authority Act 32 of 1998, under which no person shall be liable in respect of anything done in good faith under the Act, protected officials from civil liability in all circumstances.
In the matter under discussion, a colonel with the South African Police Service (SAPS) (the respondent), was arrested for the unlawful possession of firearms, ammunition and explosives. Following a tip-off, various firearms and ammunition were discovered in the police safe where the respondent worked and over which he exercised control. The weapons included firearms owned by the respondent and his wife, for which they held licences, as well as firearms held in safekeeping for his friends. The rest of the weapons in the police safe were either found or owned by the SAPS.
The respondent was eventually acquitted of all charges. He subsequently instituted action in the High Court against the Minister of Safety and Security (the Minister) and the Director of Public Prosecutions (DPP) for damages which he sustained as a result of, what he alleged to be, the unlawful arrest and malicious prosecution.
For prosecution to have been malicious, the Minister and DPP must have acted without reasonable and probable cause, acted with malice, and failed in their prosecution.
The High Court found that the respondent should not have been prosecuted on the charges relating to the firearms for which he and his wife held licences, and awarded the respondent damages. It held, however, that the DPP had reasonable and proper cause to prosecute the respondent on the other charges and that the prosecution of those charges was not malicious.
The Minister and the DPP appealed against the finding as well as the award. The DPP argued that in terms of section 42 of the National Prosecuting Authority Act 32 of 1998, no person shall be liable in respect of anything done in good faith under the Act, and that the DPP thus had legal immunity if they exercised their power in good faith, even if they were negligent.
However, the SCA held that section 42 does not protect officials from civil liability if they acted maliciously, and that section 42 only related to bona fide (made in good faith) mistakes. The High Court order was upheld but the damages award was reduced.
Bisset Boehmke McBlain Attorneys
February 2015
Author: Bisset Boehmke McBlain Attorneys
