Mahlangu v Minister of Police (66326/2010) [2017] ZAGPPHC 13; [2017] 5 BLLR 528; (2017) ILJ 1749 (GP) (25 January 2017) per DS Fourie J.

Beware malicious proceedings: Once again the richness of our common law has been ably demonstrated. Recently the high court declined to follow UK case law concerning a claim based on malicious internal disciplinary proceedings.  DS Fourie J held that our common law can accommodate a delictual cause of action based on malice. See Malice in wonderland: Internal disciplinary proceedings.

This judgment should have an important impact on the manner in which senior managers conduct future disciplinary proceedings.  See also Defamatory statements: Avoid them when imposing discipline.  It has been stressed that unless there is such an agreement or internal policy there is in fact no legal requirement to conduct such proceedings.

See Dignity implies right to be heard, not punished.

Referring to a leading textbook Fourie J confirmed that our law of delict,

‘unlike the English law of torts, has therefore been able to recognise and protect individual interests (such as privacy and the goodwill of a corporation) which have only come to the fore in modem times’.

Fourie J also adopted the approach to other jurisdictions formulated by O’Regan J in K v Minister of Safety and Security 2005 (6) SA 419 (CC) (par 35):

“It would seem unduly parochial to consider that no guidance, whether positive or negative, could be drawn from other legal systems grappling with issues similar to those with which we are confronted.  Consideration of the responses of other legal systems may enlighten us in analysing our own law, and assist us in developing it further.  It is for this very reason that our Constitution contains an express provision authorising Courts to consider the law of other countries when interpreting the Bill of Rights.  It is clear that in looking to the jurisprudence of other countries, all the dangers of shallow comparativism must be avoided.  To forbid any comparative review because of those risks, however, would be to deprive our legal system of the benefits of the learning and wisdom to be found in other jurisdictions”.

Reference was also made to another judgment of O’Regan J which is important in the context of malicious proceedings.

“[22] In Khumalo v Holomisa2002 (5) SA 401 (CC) the Constitutional Court had to consider the law of defamation (which is also based on the actio iniuriarum) in South Africa.  O’Regan J pointed out (in par 27) that in the context of the actio iniuriarum, our common law has separated the causes of action for claims for injuries to reputation (fama) and dignitas (dignity).

Dignitas concerns the individual’s own sense of self-worth, but included in the concept are a variety of personal rights including, for example, privacy.  The fact of there not being a sharp line between the different forms of iniuria, appears from the following dictum (par 27):

“In our new constitutional order, no sharp line can be drawn between these injuries to personality rights.  The value of human dignity in our Constitution is not only concerned with an individual’s sense of self-worth, but constitutes an affirmation of the worth of human-beings in our society.  It includes the intrinsic worth of human-beings shared by all people as well as the individual reputation of each person built upon his or her own individual achievements.  The value of human dignity in our Constitution­ therefore values both the personal sense of self-worth as well as the public’s estimation of the worth or value of an individual.”

[23] The right to human dignity is entrenched in section 10 of the Constitution.  It provides that everyone has inherent dignity and the right to have their dignity respected and protected.  Taking into account that the actio iniuriarum is a flexible remedy in our law, as well as the constitutional framework for the protection of personality rights in South Africa, one should avoid the danger to apply a strict dogmatic approach with regard to the different forms of a personality infringement which may be suffered by a plaintiff.  Therefore, the injury to personality suffered by a plaintiff as a result of malicious prosecution should not be confined to fama or good name, but may also include, depending on the circumstances, an infringement of the plaintiff’s dignitas or dignity.

[24] Having regard to all these considerations it appears to me that a Court, when considering the responses of other legal systems in a matter like this, should avoid an uncritical adoption of foreign law principles.  The consideration of foreign precedent is encouraged, but the use thereof requires circumspection.  It may be followed insofar as those principles are not in conflict with our well established legal principles, taking into account (in a matter like this), the general principles of our law of delict, their flexibility and our constitutional order”.