MGL v Justice and Constitutional Development and Correctional Service

Was there reasonable and probable cause for instituting malicious prosecution and principles considered?

“[95] On an assessment of the totality of the evidence that served before the high court in the trial as well as the probabilities, I am of the view that the appellant’s conspiracy theory is improbable. The appellant presented no credible evidence to demonstrate that when the prosecution team took the decision to prosecute him, and when it decided to proceed with the prosecution after considering his representations, they directed their will to doing so in the awareness that reasonable grounds for the prosecution were absent.”

Essence

Malicious prosecution considered and decided there was reasonable and probable cause to institute criminal proceedings.

Decision

(SCA 947/2022) [2024] ZASCA 17 (16 February 2024)

Order:

Disallowed appeal with costs.

 

Judges

F Kathree-Setiloane AJA (Dambuza and Makgoka JJA concurring)

Heard      :    23 August 2023
Delivered: 16 February 2024

Related books

Darcy du Toit et al:  Labour Relations Law: A Comprehensive Guide  7ed 1,091 pages (LexisNexis 2023) at

Darcy du Toit et al:  Labour Relations Law: A Comprehensive Guide  6ed 925 pages (LexisNexis 2015) at

Darcy du Toit et al:  Labour Law Through The Cases – loose-leaf service updated 6 monthly (LexisNexis 2023)

Van Niekerk and Smit (Managing editors) et al: Law@Work 6ed (LexisNexis) at

Garbers:  The New Essential Labour Law Handbook 7ed (MACE 2019) at

Collier et al: Labour Law in South Africa: Context and Principles 1ed 5th imp 631 pages (OUP 2021) at

Reasons

“[22] Although our law requires that the defendant must have acted with malice or animus injuriandi, that question will only become relevant when it is established that the defendant instigated the prosecution without reasonable and probable cause. The latter issue is anterior to the question of whether the defendant acted with animus injuriandi. To succeed on this leg of the enquiry, a plaintiff must not only prove intent to injure but also consciousness of wrongfulness.

As held by this Court in Moleko, animus injuriandi ‘means that the defendant directed his or her will to prosecuting the plaintiff in the awareness that reasonable grounds for the prosecution were absent’. It follows from this that the determination of whether a defendant had reasonable and probable cause to prosecute the plaintiff, must precede the determination into whether it acted with animus injuriandi. The high court was, therefore, obliged to determine whether the NPA had reasonable and probable cause for the appellant’s prosecution. A further reason for this, is a litigant’s entitlement ‘to a decision on all issues raised, especially where they have the option of appealing further’, as in this case.”

Quotations from judgment

Note: Footnotes omitted, emphasis added and certain personal details redacted to comply with law.

[1] This is an appeal against the judgment and order of the Gauteng Division of the High Court, Pretoria (the high court), in which it dismissed the damages claim of Mr MGL (the appellant). The appellant’s claim arose from an alleged malicious prosecution by employees of the second respondent, the National Director of Public Prosecutions (the NDPP). In terms of s 179(1) of the Constitution, the NDPP is the head of prosecuting authority in South Africa, under which all Directors of Public Prosecutions and prosecutors fall. The National Prosecuting Act 32 of 1998 is the national legislation envisaged in s 179(4) of the Constitution to ‘ensure that the National Prosecuting Authority (the NPA) exercises its functions without fear, favour or prejudice.’ Section 32(1)(a) of the NPA gives expression to that objective.

[2] The first respondent is the Minister of Justice and Constitutional Development (the Minister), who exercises final responsibility over the NPA in terms of s 33(1) of the Constitution. The third respondent is the head of the Specialised Commercial Crimes Unit of the National Prosecuting Authority, Pretoria (head of the SCCU). Its mandate is to effectively investigate and prosecute complex commercial crimes emanating from the South African Police Service (SAPS) Commercial Crime Branch. The appeal is with the leave of the high court. The appeal is opposed by only the NDPP.

. . . .

In the high court

[17] On 10 December 2018, the appellant instituted an action for malicious prosecution in the high court against the NDPP and the head of the SCCU. He alleged in the particulars of claim that during 2006 the NDPP and the head of the SCCU, acting in the course and scope of their employment, wrongfully and maliciously set the law in motion by laying false criminal charges of fraud and theft against him. The charges were based on the alleged grounds that he had: (a) created and authorised fictitious projects and/or non-existent investigations; (b) misrepresented to the NPA that funds had to be utilised for these projects; and (c) misappropriated, embezzled and/or stole various amounts of money in cash from the DSO C-Fund.

[18] The appellant named the following prosecutors, in the offices of the NDPP and the head of the SCCU, as responsible for wrongfully and maliciously prosecuting him on false charges of theft and fraud: Ms Breytenbach; Mr Van Zyl; Ms Nkula-Nyoni; and Mr Nash Ramparat. He contended, among other things, that: (a) the NDPP and/or the head of the SCCU and/or their prosecutors had no reasonable and probable cause for laying the criminal charges against him; and (b) they proceeded to prosecute him, despite the written representations which he made to the NDPP on 20 July 2010, 27 February 2011 and 5 April 2013 explaining his innocence.

[19] In their plea, the respondents admitted that on 13 October 2006, the appellant was prosecuted for fraud and that the prosecution was instituted at the instance of the NDPP. They furthermore pleaded that: (a) after the IMU investigation and recommendation that criminal charges should be brought against, amongst others, the appellant, the case docket was opened with the SAPS; (b) it was only after careful consideration of the contents of the SAPS docket, together with other available material that a decision to prosecute the appellant was taken; (c) there was reasonable and probable cause for the prosecution of the appellant; and (d) the decision to prosecute him was not actuated by malice on the part of the employees of the NPA.

[20] Thus, the high court had to determine whether the appellant had established the requisites for malicious prosecution, which are the following:

    • (a) the defendant set the law in motion in instigating or instituting the proceedings;
    • (b) the defendant acted without reasonable and probable cause;
    • (c) the defendant acted with malice or animus injuriandi;
    • (d) the prosecution has failed; and
    • (e) the plaintiff has suffered damages.

It was undisputed in the trial, which proceeded only on the issue of liability, that the first and fourth requirements were met.

Accordingly, the high court had to determine whether

    • (a) the NDPP acted without reasonable and probable cause and,
    • (b) with malice or animus injuriandi.

It concluded that the appellant had failed to prove the latter requirement and dismissed the appellant’s claim.

In doing so, it reasoned as follows:

‘Where the [appellant] failed to prove the requirement of maliciousness or animus injuriandi, it would serve no purpose to consider whether [he] has proven the requirements of [lack of] reasonable or probable cause. The [appellant] is obliged to prove all four of the requirements, and should he fail to prove one of those, he cannot succeed in his action for malicious prosecution.’

In this Court

Reasonable and probable Cause

[21] The appellant submitted that the assessment of a claim for malicious prosecution must unfold sequentially in relation to the requirements of reasonable and probable cause on the one hand, and malice or animus injuriandi, on the other. He relied for this submission on Minister of Justice v Moleko (Moleko) [per BJ van Heerden JA in SCA].

The appellant contended that the high court erred in first dealing with the question of whether the prosecution acted with malice or animus injuriandi and then concluding that this requirement was not proven. The correct approach, he argued, was to first enquire into whether the prosecution had reasonable and probable cause to prosecute him, which the court did not consider.

[22] Although our law requires that the defendant must have acted with malice or animus injuriandi, that question will only become relevant when it is established that the defendant instigated the prosecution without reasonable and probable cause. The latter issue is anterior to the question of whether the defendant acted with animus injuriandi.

To succeed on this leg of the enquiry, a plaintiff must not only prove intent to injure but also consciousness of wrongfulness.

As held by this Court in Moleko, animus injuriandi

‘means that the defendant directed his or her will to prosecuting the plaintiff in the awareness that reasonable grounds for the prosecution were absent’.

It follows from this that the determination of whether a defendant had reasonable and probable cause to prosecute the plaintiff, must precede the determination into whether it acted with animus injuriandi.

The high court was, therefore, obliged to determine whether the NPA had reasonable and probable cause for the appellant’s prosecution.

A further reason for this, is a litigant’s entitlement ‘to a decision on all issues raised, especially where they have the option of appealing further’, as in this case.

[23] It is to the issue of reasonable and probable cause that I now turn.

In Beckenstrater this Court held that:

‘When it is alleged that a defendant had no reasonable cause for prosecuting, I understand this to mean that he did not have such information as would lead a reasonable man to conclude that the plaintiff had probably been guilty of the offence charged; if, despite his having such information, the defendant is shown not to have believed in the plaintiff’s guilt, a subjective element comes into play and disproves the existence, for the defendant, of reasonable and probable cause.’

There would, thus, be reasonable and probable cause for the prosecution where a defendant is of the honest belief that the facts, available at the time of taking the decision to prosecute the plaintiff, constituted an offence which would lead a reasonable person to conclude that the person against whom charges are brought, was probably guilty of such offence.

This question must not be confused with whether there is sufficient evidence upon which the accused may be convicted. That question would ultimately be for the court, in the criminal trial, to decide at the conclusion of the evidence.

[24] The appellant sought in his testimony, in the malicious prosecution trial (the trial), to justify his actions and prove his innocence. That is not the test for absence of reasonable and probable cause in a malicious prosecution.

Whether there was reasonable and probable cause for the prosecution depends on the facts or material which was at the disposal of the prosecutor, at the time that the prosecution was instigated, and the careful assessment of that information. The pertinent date would be that on which the prosecution applied for a warrant of arrest for the plaintiff.

In this case, that date is 11 October 2006. If there are representations along the way, the prosecutor is obliged to carefully assess those representations to decide whether to proceed with the prosecution or to withdraw the charges.

[25] Mr Van Zyl was a member of the prosecution team from the date that the NPA applied for the warrant of arrest for the appellant. He testified that they decided to prosecute the appellant based on a careful assessment of the information in the docket, and after consultation with the state witnesses. He confirmed that the docket contained evidence relating to each of the counts on which the appellant was charged.

This included the IMU full investigation file, the IMU investigation report and disciplinary file which included sworn statements made by various witnesses against the appellant, and other supporting documents. He testified that from his assessment of the evidence in the docket, he was of the honest belief that the charges against the appellant could be sustained as there was a prima facie case against him.

[26] Where there are numerous discrete charges, such as we have here, each of them must be considered separately in determining whether the prosecution had reasonable and probable cause.

In line with this approach, I will consider the evidence in the docket that the prosecution had at its disposal, when it decided to prosecute the appellant on each of the charges in the indictment.

. . . .

Malice or animus injuriandi

[84] The overall premise of the appellant’s case in so far as this requirement is concerned, was that there was a conspiracy instigated by his direct superior, Mr McCarthy, to destroy his career. The appellant testified in this regard that he had an acrimonious relationship with Mr McCarthy and Ms Breytenbach from the inception of his employment at the NPA. He said that once Mr McCarthy discovered that certain DSO C-Fund transactions that the appellant had authorised were not fully compliant with the Policy and Procedures document, he used that as an opportunity to make his stay at the NPA very unpleasant. The appellant furthermore stated that their relationship deteriorated even further when he told Mr McCarthy that, in terms of the Policy and Procedures document, accountability for the DSO C-Fund lay with him. According to the appellant, McCarthy became angry and threatened that he would destroy the appellant’s career and would use the services of Ms Breytenbach in the SCCU to do so.

[85] Neither Mr McCarthy nor Ms Breytenbach testified at the trial. The appellant contended that given the failure of the NPA to call them to testify, his evidence against them remains unchallenged and conclusively demonstrates that the NPA acted with malice and animus injuriandi in deciding to prosecute him. I disagree. Although the appellant may have had an acrimonious relationship with Mr McCarthy and Ms Breytenbach, I fail to see how this could have led to a conspiracy by at least four officers of the Court to destroy his career. The appellant named four individuals in his particulars of claim but did not name Mr McCarthy. Yet in his testimony, in the trial, Mr McCarthy was the main perpetrator. Mr McCarthy had, however, relocated to Washington DC in 2007/8 and could not have driven the prosecution. The prosecution proceeded even after he had left the country.

[86] It is clear from the factual background that the initial decision to prosecute the appellant was a joint one. The meeting of 25 July 2005, where the decision was taken, was attended by several senior officials of the NDPP, including Mr McCarthy and Jordaan. Moreover, on the unchallenged evidence, the decision to institute criminal proceedings against the appellant was made by Mr Chris Jordaan (Mr Jordaan), the head of the SCCU. He appointed Ms Breytenbach, Mr Van Zyl and Ms Nkula-Nyoni as the prosecutors in the matter. They took their instructions directly from Mr Jordaan. Ms Breytenbach was only involved in the first trial and the original charges. By the time the trial de novo commenced, she had been suspended from the NPA and had subsequently resigned.

[87] Although Ms Breytenbach did not testify in the trial, it is clear from her written response to the 20 July 2010 representations of the appellant, that the prosecution had a prima facie case against the appellant in respect of all 23 original charges, based on her evaluation of the evidence in the docket. The essence of the appellant’s representations were denials that he had committed the offences that he was accused of. In respect of count 1 (retaining R11 000 of the R15 000) the appellant merely denied that that the underlying case was fictitious, to which Ms Breytenbach responded that the nub of the charge was his representation that the amount of R15 000 was required as trap for the project, when all that had been required was R4 000, and his retention of the R11 000 on termination of the project. In respect of count 5 (payment of R150 000 to Mr Patel, a fictitious informer) he argued that the payment of the reward to the informer was witnessed by himself and Mr Jonker. He also relied on two affidavits deposed to by Mr Mrwebi. In the first one he had prepared a report in support of payment of the R150 000. In the second affidavit Mr Mrwebi had stated that the amount of R150 000 had not been dictated to him by the appellant. To this Ms Breytenbach responded that the decision to prosecuted was based on the responses by Senior Special Investigator in the case, Mr Pieterse, and the lead investigator, Mr Naidoo, to th effect that there was no informer in the matter. Furthermore, according to a report prepared by a handwriting expert, Mr Jonker’s signature had been forged. In addition, the alleged informer was not registered with the DSO, and Mr Jonker seemed ambivalent on the payment to the alleged informer.

[88] With regard to count 14 (alleged payment of R50 000 to an informer that was never registered as such with DSO) the appellant’s representation was that the payment was made on the basis of a handwritten note dated 25 January 2005 with the inscription: ‘”R50 000 23/7/2004 Geoph MGL”’ and Mr Jonker’s comment thereon that ‘”To get original from Malebo with receipts”’. In response Ms Breytenbach reiterated that the alleged informer was never registered with the DSO, that the appellant that the appellant had instructed his junior, Mr Doubada, to authorize the payment without the latter having any knowledge about the matter, and that no official receipt of payment by the

[89] In respect of count 15 (R30 000 paid out to the appellant without completion of a Request for Advance or the DSO C-Fund claim form) the appellant had referred to two documents in the forensic report on which was the inscription: ‘The advance is supported by a hand-written document (Annexure 57) with comments as follows ‘Ref 21 Mr MGL R30 000”’. The advance is marked Ref 21 (Annexure 58 for bookkeeping purposes’. He asserted that the documents supported advance payment. He also maintained that the money was requested by Mr Tongwane, not him. Ms Breytenbach responded that State case was that the advance payment was made without the required documents. She stated that Mr Pieterse had confirmed that no other documents could be traced in relation to the transaction, and, Mr Tongwane had initially made a request for payment of R20 000 which the appellant changed to R30 000.

[90] In respect of count 18 (engagement in unauthorised remunerated project while employed by the NPA) the appellant argued that he had resigned from the NPA with effect from October 2005. Ms Breytenbach pointed out that the State case was that the tender was awarded in December 2004 and the appellant resigned in August 2005.
In conclusion, Ms Breytenbach submitted that ‘the National Prosecuting Authority cannot afford not to prosecute one of its own senior officials if such a strong case exists’.

[91] As to counts 19 to 22 (theft of moneys paid in respect of the project awarded to Ndumiso Trust or Kagiso Consulting) the appellant explained that the reason that the money was paid into his personal account was that the bank account for Kagiso Consulting had not yet been opened. He argued that he did pay the one interest holder, Mr Tshepo Nkadimeng, his share of the money, but did not pay the second one, Mr Lephoko because he had not contributed anything to the project. In response Ms Breytenbach highlighted that the appellant refunded some of the moneys to the NPA.

[92] After Ms Breytenbach’s suspension, the prosecution then continued under the leadership of Mr Van Zyl assisted by Ms Nkula-Nyoni. His involvement in the trial de novo was also short-lived, as he withdrew from the case due to a suspicion that he had been compromised by the appellant. Although this fact alone does not show absence of animus iniuriandi on the Mr Van Zyl’s part, his withdrawal from the case and the withdrawal of the 10 charges against the appellant, demonstrated his willingness to acknowledge and take the necessary steps in relation to defects in the case against the appellant. As was Ms Nkula-Nyoni’s support of the appellant’s s 174 application for a discharge on counts 1, 2, 5, 6, 7, 8, and 9. The appellant’s accusations of malice and intent to injure against them are therefore baseless and unsupported on the evidence.

[93] The appellant’s conspiracy is not supported by the objective facts, especially when one has regard to how his three sets of representations were handled. First, having assessed Ms Breytenbach’s response to the first set of representations, the National Director of Public Prosecutions, Mr Simelane, was satisfied that there was a prima facie case in respect of the charges, and that the prosecution should continue. Second, the Deputy National Director of Public Prosecutions, Ms Mokhatla, was requested to review the charges against the appellant in the light of his second set of representations. She too, having assessed the charges, was of the view that there was a prima facie case against the appellant. She directed that the prosecution should continue. Third, Mr Mrwebi, in response to the third set of representations, was similarly of the view that there was a prima facie case against the appellant, and implored the prosecution to consider adding a charge of corruption.

[94] Were the appellant’s conspiracy theory to be accepted, it would have had to imply that all the above were too, biased against him. There is no such suggestion by the appellant that any of these senior prosecutors was biased against him or that they were part of the conspiracy to convict him on false charges. There is no suggestion that they did not objectively and independently apply their minds to his representations.

[95] On an assessment of the totality of the evidence that served before the high court in the trial as well as the probabilities, I am of the view that the appellant’s conspiracy theory is improbable. The appellant presented no credible evidence to demonstrate that when the prosecution team took the decision to prosecute him, and when it decided to proceed with the prosecution after considering his representations, they directed their will to doing so in the awareness that reasonable grounds for the prosecution were absent.

Conclusion

[96] For these reasons, I conclude that appellant had failed to prove, on a balance of probabilities, that the employees of the NPA had no probable cause to instigate the prosecution against the appellant or that they acted with malice or animus injuriandi.

[97] In the result, the appeal must fail. I make the following order:

The appeal is dismissed with costs including those of two counsel.

 

Court summary

Flynote:

Malicious prosecution – whether inquiry into absence of reasonable and probable cause to precede that of malice or animus injuriandi.
Assessment of reasonable and probable cause – at the time of proceeding with the prosecution.

Executive summary:

  • Mr. MGL appealed against the dismissal of his damages claim for malicious prosecution by the Gauteng Division of the High Court.
  • The malicious prosecution claim stemmed from over twenty charges of fraud and theft related to withdrawals from the Confidential Fund (C-Fund) allocated to the Directorate of Special Operations (DSO).
  • The criminal trial resulted in Mr. MGL being discharged on some charges, convicted on others (later reversed on appeal), and sentenced to 10 years in prison.
  • In the damages claim, Mr. MGL alleged malicious prosecution by the prosecution team, asserting no reasonable and probable cause for his prosecution.
  • The High Court dismissed the claim, citing a lack of proof of malice or intent to injure by the National Director of Public Prosecutions (NDPP).
  • The Supreme Court of Appeal (SCA) affirmed the dismissal, emphasizing the need to establish the absence of reasonable and probable cause before addressing malice.
  • The SCA found that evidence in the docket provided reasonable cause for prosecution, including sworn statements, investigation reports, and a forensic report.
  • The SCA held that the charges related to fraud committed by Mr. MGL, both in relation to the C-Fund and his business consultancy, had reasonable and probable cause.
  • The withdrawal of some charges by the State was attributed to cost considerations, and the SCA deemed the explanation plausible.
  • Mr. MGL’s claim of a conspiracy instigated by his superior was rejected by the SCA, which found no credible evidence of malice or intent to injure.
  • The SCA concluded that the NDPP did not act maliciously and dismissed Mr. MGL’s appeal.