In the case of Miya v Minister of Police [2022] ZAFSHC 240 at [34]-[45], Mr. Miya was arrested at his home on a charge of rape, was detained at the police station and then at a correctional facility until he could get bail. He made several appearances in court until the charges against him were withdrawn.
It was found that the prosecution was based upon the same deficient evidence and incorrect facts as the arrest. A DNA reference sample was never taken from the plaintiff, and therefore, there could never be a DNA result.
The defendants were ordered to pay R250,000 for the unlawful arrest and detention and R150,000 for the malicious prosecution.
REQUIREMENTS FOR A SUCCESSFUL MALICIOUS PROSECUTION CLAIM
In the appeal case of George Magwabeni v Christopher Liomba, 2015, the Supreme Court of Appeal (“SCA”) reviewed the judgment of the Limpopo Local Division that found Magwabeni liable for damages for malicious prosecution. The case arose from a complaint that he had lodged against Liomba with the SAPS that was followed by Liomba’s arrest and detention. Liomba was charged following the complaint, but the charges were subsequently withdrawn, and he was released after having spent a week in detention.
On appeal, the SCA set out the definition and requirements for a malicious prosecution claim:
“Malicious prosecution consists of the wrongful and intentional assault on the dignity of a person encompassing his good name and privacy. To succeed with this claim, a claimant must allege and prove that:
The defendant set the law in motion (instigated or instituted the proceedings);
The defendant acted without reasonable and probable cause;
The defendant acted with malice (or animo injuriandi – the wrongful intention to defame or injure another's reputation or personality); and
The prosecution failed.”
These requirements were set out in Minister of Justice and Constitutional Development & others v Moleko, 2008, and Beckenstrater v Rottcher and Theunissen, 1955, set out the test for ‘absence of reasonable and probable cause'. The test contains both a subjective and objective element, meaning there must be both actual belief on the part of the defendant and that that belief is reasonable in the circumstances.
If you believe that you have been maliciously prosecuted and have a potential claim, contact our offices to investigate your matter and help you succeed. Gittins Legal Advice reception@gittins.co.za | Tel: 010 001 2002
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