Ndlovu v Ngcobo; Bekker v Jika 2003 (1) SA 113 (SCA)

Ndlovu v Ngcobo; Bekker v Jika 2003 (1) SA 113 (SCA)

Issue

Whether a claim for the payment of damages as a result of alleged malicious prosecution can be brought successfully where the prosecution in question has not yet terminated in favour of the accused.

Facts

In the first case, Ndlovu was arrested and charged with murder. The charges against him were eventually withdrawn, and he sued the state for malicious prosecution. In the second case, Bekker was arrested and charged with rape. The charges against him were also eventually withdrawn, and he sued the state for malicious prosecution.

Key Facts

• In both cases, the accused were arrested and charged with serious crimes.
• In both cases, the charges against the accused were eventually withdrawn.
• In both cases, the accused sued the state for malicious prosecution.

Court's Decision

The Supreme Court of Appeal of South Africa (SCA) held that a claim for the payment of damages as a result of alleged malicious prosecution can be brought successfully where the prosecution in question has not yet terminated in favour of the accused.

Reasoning

The SCA reasoned that the test for malicious prosecution is whether the prosecution was instituted without reasonable and probable cause and with malice. The SCA found that the prosecutions in both cases were instituted without reasonable and probable cause and with malice.

The SCA also reasoned that the fact that the prosecutions had not yet terminated in favour of the accused did not preclude the accused from bringing a claim for malicious prosecution. The SCA found that the accused had suffered damages as a result of the prosecutions, even though the prosecutions had not yet terminated.

Application of the Law to the Facts of the Case

The SCA applied the law to the facts of the case and found that the accused were entitled to damages for malicious prosecution. The SCA ordered the state to pay damages to the accused.

Conclusion

The SCA's decision in this case is significant because it clarifies the law relating to the claim for malicious prosecution. The decision emphasizes that a claim for malicious prosecution can be brought successfully where the prosecution in question has not yet terminated in favour of the accused.

The decision also provides guidance to prosecutors and the police on the standards that they must meet when instituting criminal proceedings. Prosecutors and the police should be aware that they may be liable for damages if they institute criminal proceedings without reasonable and probable cause and with malice.