Patel v National Director of Public Prosecutions
The high court considered the test when dealing with a malicious prosecution action by the retired judge president of KZN and agreed that the NDPP and its employees were not only aware of what they were doing in instituting or initiating the prosecution and also must have foreseen the possibility that they were acting wrongfully, but nevertheless continued to act, reckless as to the consequences of their conduct (dolus eventualis). The claim succeeded and substantial damages were awarded with costs.
The high court decided that the retired judge had proved that the defendants acted with animus injuriandi for a number of reasons, including the failure to consider a mediation process and that there was no reasonable prospect of a successful prosecution.
Discussion by GilesFiles
Quotations from judgment
Note: Footnotes omitted and emphasis added
 The plaintiff, the Honourable Mr Justice Chimantal Noratam Patel, the former Judge President of the Kwa-Zulu Natal High Court Division, instituted an action for malicious prosecution against the five (5) defendants jointly and severally claiming an amount of R3 000 000.00 (three million rand) being damages in respect of contumelia, embarrassment, impairment of his dignity, reputation and humiliation.
 The five (5) defendants, viz, The National Director of Public Prosecutions (NDPP), first defendant, The Director of Public Prosecutions Kwa-Zulu Natal (DPP), second defendant, Minister of Justice and Constitutional Development (Minister of Justice), third defendant, Lindiwe Nxele (Nxele), fourth defendant, Sophie Moipone and Dina Noko (Advocate Noko), fifth defendant) are defending the action and are represented by The Office of the State Attorney.
SUMMARY OF THE BACKGROUND EVIDENCE
 The background facts which I regard relevant to the plaintiff’s action, are divided into two sections to avoid duplication and to provide continuity in the timeline of events. The first section consists of the facts pertaining to the day of the incident and circumstances that led to the charge laid against the plaintiff while the second section consists of the steps taken in the investigation of the charge by the first and second defendants, the decision to proceed with prosecution and then finally the decision to withdraw the charge.
 During the civil proceedings the plaintiff testified and called two witnesses, Ms Morar and Ms Marais, to support his claim. The defence called three witnesses, Ms Nxele, Advocate Noko and Advocate Cyril Selepe, the last two being in the employ of the second defendant.
. . . . .
THE LEGAL FRAMEWORK AND EVALUATION OF THE EVIDENCE
 The requirements to prove a claim for malicious prosecution were discussed in Minister of Justice and Constitutional Development v Moleko as follows:
“In order to succeed (on the merits) with a claim for malicious prosecution, a claimant must allege and prove –
(a) that the defendants set the law in motion (instigated or instituted the proceedings);
(b) that the defendants acted without reasonable and probable cause;
(c) that the defendants acted with malice (or animo injuriandi); and
(d) that the prosecution has failed.”
The requirement of “malice” has been the subject of discussion in a number of cases in this court. The approach now adopted by this Court is that, although the expression “malice” is used, the claimant’s remedy in a claim for malicious prosecution lies under the injuriarum and that what has to be proved in this regard is animus injuriandi. See Moaki v Reckitt and Colman (Africa) Ltd and Another and Prinsloo and Another v Newman. By way of further elaboration in Moleko it was said:
“The defendant must thus not only have been aware of what he or she was doing in instituting or initiating the prosecution, but must at least have foreseen the possibility that he or she was acting wrongfully, but nevertheless continued to act, reckless as to the consequences of his or her conduct (dolus eventualis). Negligence on the part of the defendant (or, I would say, even gross negligence) will not suffice”.
 What triggered the prosecution of the plaintiff was the act of Ms Nxele preferring a charge of crimen injuria against the plaintiff. In her first statement to the police dated 25 October 2013, it is recorded that she said the following:
“.. .As we were approaching the Judges (sic) table where he was seated the Judge started shouting at me saying what nonsense is this who gave you the right to shout at my secretary. On our arrival to him I greeted him his answer was sit down…. …After Roma finished, the Judge started shouted (sic) at me insulting me pointing fingers at me in front of Marais and Roma calling me all sort of names, nonsense, trash, rubbish and how useless I am. The Judge never gave me a chance to tell my side of my story. Then I asked him if he was going to listen to my side of my story. I could see that he was concluded about me he said yes talk. I told the Judge what happened. After that the Judge kept on shouting at me saying that his office is very busy. I told the Judge that I will not serve his secretary, we are all employed by the department of justice…”
 After the Office of the NDPP received the first memorandum from Advocate Noko it instructed a team led by Advocate Ramaite SC to prepare a memorandum on the matter before deciding on whether the plaintiff should be formally charged. The team investigated the matter further and recommended as follows:
“[29.1] It is submitted that the NDPP should first of all liaise with the Office of the Chief Justice in order to determine whether this complaint against Mr Patel should not rather (and more appropriately) be dealt with by means of the disciplinary processes of the Judicial Conduct Committee.
[29.2] If the abovementioned option does not materialize, then it should be considered to initiate an Informal Mediation process.
[29.3] Failure to reach an amicable solution during an Informal Mediation process, a prosecution should be instituted. It would not be improper to allow the accused to pay an admission of guilt in these circumstances.”
 The first defendant wrote to the second defendant to inform her that for the matter to be dealt with through disciplinary process of the Judicial Conduct Committee and the complainant, Ms Nxele, should lay a complaint with the Judicial Conduct Committee. The NDPP further requested the OPP to ascertain whether Ms Nxele will be amenable to follow the recommended alternative dispute resolutions and to explain the benefits thereof.
 An important feature in this matter is what transpired following the recommendation made by the first defendant regarding mediation and the views of Ms Nxele on the issue and how this impacted on the final decision taken to prosecute the plaintiff . There appears to be some uncertainty as to whether Ms Nxele was opposed to mediation or insisted on the prosecution of the plaintiff.
 During cross examination Advocate Noko was ambivalent about the conclusion of the prosecution team appointed in November 2014 and sought to distance herself from its conclusion. Advocate Noko said she was not persuaded by the recommendation of the prosecution team and she would have persisted in prosecuting the plaintiff but for the fact Ms Nxele later asserted that she did not consider that her dignitas was impaired by the use of the word “rubbish” which she attributed to the plaintiff.
 It is interesting that when Ms Nxele testified in court she insisted that the alleged utterance impaired her dignity but she told the prosecution team that alleged words uttered by plaintiff did not have an impact on her dignity. Furthermore Advocate Noko insisted that Ms Nxele wanted the matter to go to Court but Ms Nxele testified that she wanted to have a face to face discussion with the plaintiff. As I indicated that in the meeting held in the plaintiff’s chambers the emotions were high, in my view Advocate Noko should have considered this aspect before taking a decision to prosecute. It is not surprising that there are material contradictions in the versions of Ms Nxele.
 It should be noted that Ms Nxele consulted with Advocate Noko again on 15 September 2014, in Pietermaritzburg. In the affidavit she signed on 15 September 2014, she states that Advocate Noko explained to her the contents of the letter dated 7 January 2014, that she wrote to the NDPP, her recommendation and the response from the NDPP. Her response was that she wanted to see justice done and if it’s true that no one is above the law the plaintiff must deal with the allegations against
him in a Court of law. However in the affidavit made by Brigadier Isiah Jabulani Zikhali on or after 12 November 2014, it is recorded that:
“On 2014-11-12 the complainant was called to DPP’s in Durban for consultation. The complainant was interviewed in my presence by advocate Khuzwayo, advocate Sibeko and Durban SPP. The contents of NDPP’s letter were explained to the complainant by advocate Sibeko. The response from the complainant was that she misunderstood advocate Noko when she consulted her in Pietermaritzburg. The complainant stated that she thought she was going to be excluded from the process of mediation and that the Judge would be called alone. The complainant elected to follow the mediation process.”
 It should further be noted that on 15 August 2014, the NDPP addressed a letter to Advocate Noko and advised her about the advice of the Office of the Chief Justice. In the letter dated 11 August 2014, addressed to the NDPP, the Office of the Chief Justice, inter alia, said the following:
“While I find the proposal that the matter would best be dealt with by the Judicial Conduct Committee, the challenges I have is that I cannot initiate that process. The complainant or someone on her behalf and with her consent would have to depose too an affidavit initiating the lodgement of a complaint against Patel, JP.
If the NDPP or someone attendant, see she is agreeable to it, and follow on his behalf could bring this option to her attention and she is agreeable to it and following through on it the, JGC would then have the jurisdiction to deal with the matter.
 Advocate Noko testified that on 15 September 2014, when she consulted with Ms Nxele, she advised her about the recommendation of Advocate Ramaite SC and that from the Office of the Chief Justice. Ms Nxele was not amenable to follow the alternative dispute resolution and she noted in her memorandum about Ms Nxele the following:
“My response to this matter is that I want justice being done. If it is true that there is no one who is above the Jaw, the Judge must be brought before the court and answer the allegations.”
 It is further important to mention that when Ms Nxele testified she said she told Advocate Noko that if the plaintiff apologised she would not have insisted that the criminal case should proceed. However, this is not recorded in her affidavit of 15 September 2014, or in the affidavit of the Brigadier Zikali. When Ms Nxele testified she denied that she was informed about alternative dispute resolutions which she would have acceded to. Advocate Noko in her testimony, insisted that Ms Nxele wanted the matter to go to Court but Ms Nxele however, testified, that she told Advocate Noko that she wanted to have a face to face discussion with the plaintiff.
 On 15 September 2014, Advocate Noko addressed a memorandum to the NDPP wherein she informed him that the complainant was not amenable to following an alternative dispute resolution mechanism and therefore declined the advice. She then requested the NDPP for his advice on the way forward.
 On 23 September 2014, the NDPP addressed a letter to the Office of The Chief Justice and informed the Chief Justice that the complainant was not willing to participate in the disciplinary process of the Judiciary Conduct Committee. As a result thereof, he directed that the plaintiff must be prosecuted on a charge of crimem injuria and that it would not be improper to allow the plaintiff to pay an admission of guilt fine.
 On even date, another letter was addressed to Advocate Noko by the NDPP wherein he stated that:
“I have decided that Mr Patel must be prosecuted on a charge of crimen injuria. I have also decided that it would not be improper to allow the accused to pay an admission of guilt fine.”
 To determine whether there was malice or not, it will be worth recalling what the Supreme Court of Appeal said when it dealt with the duty of the prosecutor in Minister of Police and Another v Du Plessis
“… A prosecutor has a duty not to act arbitrarily. A prosecutor must act with objectivity and must protect the public interest.
In S v Jija and Others 1991 (2) SA 52 (E) at 671-688 the following appears:
“I must also mention that the Court had an uneasy feeling that State counsel had misconceived his function. It appeared to the Court from the nature of his address and attitude that he regarded his role as that of an advocate representing a client. A prosecutor, however, stands in a special relation to the Court. His paramount duty is not to procure a conviction but to assist the Court in ascertaining the truth (R v Riekert 1954 (4) SA 254 (SWA) at 2610-G; R v Berens  176 ER 815 at 822). See also R v White 1962 (4) SA 153 (FC); R v Tapera 1964 (3) SA 771 (SRA); S v Van Rensburg 1963 (2) SA 343 (N); R v M 1959 (1) SA 434 (A) at 439F.”
 In Democratic Alliance v President of the Republic of South Africa and Others this Court, after a discussion concerning prosecutorial independence in democratic societies, quoted, with approval, the following part of a paper presented at an international seminar by Mr James Hamilton, then substitute member of Venice Commission and Director of Public Prosecution in Ireland:
“Despite the variety of arrangements in prosecutor’s office, the public prosecutor plays a vital role in ensuring due process and the rule of law as well as respect for the rights of all the parties involved in the criminal justice system. The prosecutor’s duties are owed primarily to the public as a whole but also to those individuals caught up in the system, whether as suspects or accused persons, witnesses or victims of crime. Public confidence in the prosecutor ultimately depends on confidence that the rule of law is obeyed.”
We should all be concerned about the maintenance and promotion of the Rule of Law. Given increasing litigation involving the NDPP, these principles cannot be repeated often enough. We ignore them at our peril.
 A prosecutor exercises discretion on the basis of the information before him or her. In S v Lubaxa this Court said the following:
“Clearly a person ought not to be prosecuted in the absence of a minimum of evidence upon which he might be convicted, merely in the expectation that at some stage he might incriminate himself. That is recognised by the common law principle that there should be “reasonable and probable” cause to believe that the accused is guilty of an offence before a prosecution is initiated and the constitutional protection afforded to dignity and personal freedom (s 10 ands 12) seems to reinforce it. It ought to follow that if a prosecution is not to be commenced without that minimum of evidence, so too should it cease when the evidence finally falls below that threshold.”
 Courts are not overly eager to limit or interfere with the legitimate exercise of the prosecutorial authority. However, a prosecuting authority’s discretion to prosecute is not immune from the scrutiny of a Court which can intervene where
such discretion is improperly exercised. See generally National Director of Public Prosecutions v Zuma• The following was held in Minister of Police and Another v Du Plessis:
“Indeed a court should be obliged to and therefore ought to intervene if there is no reasonable and probable cause to believe that the accused is guilty of an offence before a prosecution is initiated.”
 The second defendant should have been satisfied that there was reasonable and probable cause not just a prima facie case against plaintiff. The prosecutor should interrogate the docket in its entirety and apply his/her mind properly before taking a decision. Again, if I accept the version of Ms Nxele, it implies that Advocate Noko was not a credible witness and she fabricated the evidence. The defence failed to call the officer who commissioned Ms Nxele’s statement, so that he could testify if the complainant understood the content of her statement and confirm the truthfulness thereof.
 Crucially, in my view, when the plaintiff was summoned he was not informed about an opportunity to pay a fine as recommended by the first defendant. Advocate Noko could not give a satisfactory answer as to why the directive by the first defendant that the plaintiff be given the opportunity to pay an admission of guilt fine was not implemented.
 A prosecutor should assess whether there is sufficient and admissible evidence to provide a reasonable prospect of a successful prosecutor, otherwise the prosecution should not commence. According to the DPP’s Prosecution Policy Code of Conduct, Guidelines and Directing under the heading: When the role of the prosecutor is described, it is stated that:
“Prosecutors must at all times act in the interest of the community……. Members of the Prosecution Authority must act importantly and in good faith. They should now [sic] allow their judgment to be influenced by factors such as their personal views regarding the nature of the offence or the race, ethnic or nature of the offence or the race ethnic or national origin, sex, religious beliefs, political views or sexual orientation of the victim, witness or the offender”
When regard is had to the evidence that was before the first and second defendants before the decision to prosecute was taken there must have been considerable doubt with regard to the version and understanding of Ms Nxele with regard to what was said. Ms Nxele would have been a single witness and in this regard the first and second defendants would also have had to be satisfied that her evidence would have passed the threshold of being satisfactory in all material respects.
For the reasons already given there would clearly been doubt about that which in turn would seriously question whether it could be said that there was reasonable and probable cause to prosecute at the time the decision was taken.
 After summons was served on the plaintiff, a prosecuting team comprising of Advocate E Khuzwayo, GP Sibeko and Maimane, was appointed by Advocate Noko. The team consulted extensively with the complainant and the witnesses, formed a view and addressed a memorandum to Advocate Noko, wherein they recommended as follows:
“We are thus recommended that an informal mediation be done in this matter and the prosecution not be continued with against the accused. Should the state continue to pursue with the prosecution of this matter, we would be prosecuting maliciously especially since we have considered all the merits and the merits of the matter and we are aware that there no reasonable prospects of success. It is our beliefs that were opening a door to a civil claim being levelled against us especially since we are now aware of the material contradictions. See Minister of Justice and Constitutional Development v Moleo  3 ALL SA 47 (SCA) and Minister of Police and Another v Du Plessis 2014(1) SA 217 (SCA). We are not persecutors but we are Prosecutors who should strive at all times to prosecute without, fear or prejudice which our vision guides us to do. We are not only guided by the Vision and Mission statement in the decision making process as well as “integrity. Having noted the contradictions and despite this proceeding with a prosecution in the matter impedes on our integrity. It is also recommended that the DPP consult with the NDPP on the issues raised.”
 The prosecuting team had a meeting with Advocate Noko and informed her that Ms Nxele no longer regarded the alleged words uttered by plaintiff as having an impact on her dignity and that she wanted mediation to be held. The matter against the plaintiff was formally withdrawn on 11 December 2014, when plaintiff appeared in Court.
 As pointed above Ms Nxele’s version in the written statements she made and her version when she testified in Court is full of material contradictions and inconsistences. Her version further contradicts the version of Advocate Noko on certain material aspects. Argumentative. Under cross examination she was evasive and
 I need to further consider whether on the facts of this matter it can be said that the first defendant mainly relied on the memorandum of the second defendant in arriving at her decision to sanction the decision of the second defendant. In my view, the first defendant should have carefully considered the statements in the docket before he sanctioned the decision of the second defendant to prosecute the plaintiff. The first defendant did not testify to explain how they arrived at a decision to sanction prosecution.
 There is no doubt that Advocate Noko was acting within the course and scope of her duties with the second defendant. I do not think that she should be personally liable. There is no evidence implicating the third defendant, the Minister of Justice and Constitutional Development.
 The second defendant did not inform the plaintiff about an alternative to pay a fine and she further testified that mediation, as directed by the first defendant and recommended by the prosecution team, has not been pursued. Advocate Noko was not a good witnesses and she did not, in my view, execute the duties reasonable expected from a Director of Public Prosecution. She gave long-winded and argumentative answers when she testified.
 As the prosecution team correctly found, in my view, there was no reasonable prospect of a successful prosecution. The plaintiff and his witnesses were credible witnesses and their evidence is acceptable. I think the plaintiff also proved on the balance of probabilities that the first, second and fourth defendants acted with animo injuriandi.
 The assessment of an award for damages is not an easy task. The Court needs to carefully consider the facts and circumstances of the case before it, the aggravating and mitigating conduct of the defendants, the position of the plaintiff and the decided cases for guidance.
 The plaintiff was the Judge President of the KwaZulu-Natal High Court and was a few years from retiring with an unblemished record of service to the judiciary and the legal profession. His evidence on these aspects has not been challenged.
 The incident was widely publicised in the media and he had to appear in Court on two occasions as an accused. After the charge was laid it took about thirteen (13) months before the charge was withdrawn. During this time the prospect of being prosecuted would have been hanging over his head.
 No meaningful attempts were made to pursue alternative dispute resolution methods like mediation by the second defendant before she referred the matter to the first defendant. When the plaintiff was summoned to appear in the Criminal Court he was not given an option to pay an admission of guilt as it was recommended by the first defendant.
 The Plaintiff testified that the preferring of a charge of crimen injuria and the decision that he should be prosecuted impaired his dignity, reputation and embarrassed him. As a Judge his duty is to dispense justice but he was required to appear in a Criminal Court as an accused after the second defendant and the first defendant decided to prosecute him. The matter was highly publicised in the newspapers.
 I need to however, point out that the service of the summons on the plaintiff on Diwali day was not malicious and not intended to embarrass him as a member of the Hindu religion.
 I also need to state that before the first decision to prosecute was made by Advocate Noko, she could have involved a team of senior state advocates to assist her with the investigation of the matter. Advocate Noko sanctioned a further investigation by the prosecution team about a year after the charge was laid against the plaintiff.
 In the assessment of damages I will also take into consideration that it is still the second defendant that decided to establish a prosecution team ad withdraw the charges before the trial could commence.
 The defendant’s counsel submitted that the appropriate damages to be awarded is an amount or R150 000.00 (one hundred and fifty thousand rand) to R200 000.00 (two hundred thousand rand). I disagree. The defendants were aware that the case involves a senior Judge. That is the reason why two sets of senior state prosecutors were later involved to seek their views in assisting the first and second defendants. The failure by Advocate Noko to pursue mediation is, in my view, an indication that she was intent on seeing the matter being heard in a Criminal Court. According to Advocate Noko mediation was not an important way to resolve this matter because even when the civil trial was heard about three years after the prosecution team recommend it, it had not yet taken place.
 Having regard to the circumstances of this case and having considered previous awards that I was referred to during the argument I think the amount of R900 000.00 (nine hundred thousand rand) is fair and reasonable damages suffered by the plaintiff.
 The plaintiff’s counsel sought a punitive cost order against the defendants. In exercising my judicial discretion, I am not satisfied that a punitive cost order would be appropriate. Each party were represented by two counsel and costs of two counsel is justified.
I make the following order against the first, second and fourth defendants jointly and severally:
1. Payment of the sum of R900 000.00 (nine hundred thousand rand only);
2. Interest at the rate of 10% per annum with effect from the date of judgment to date of payment;
3. Costs of suit on a party and party scale and the costs shall include costs of two senior counsel.