- September 4, 2023
- |Concise Law Reports (CLR), Delict
The plaintiff instituted action against the defendants for unlawful arrest and malicious prosecution. The defendants defended the action and denied any unlawful arrest and that the plaintiff was maliciously prosecuted. The defendants pleaded that there was a reasonable suspicion that led to the arrest and that sufficient evidence was presented for the prosecution to proceed with trial. The plaintiff alleged that she was arbitrarily arrested on 27 February 2017 at Windhoek by Sergeant Nantinda who acted within the course and scope of the employment of the first defendant. Further, she alleges that she was wrongfully charged with three counts of allegedly corruptly using her office or position for gratification, corruptly accepting gratification, and corruptly accepting gratification whilst in the employment of the Ministry of Home Affairs and Immigration where she was employed as an administrative officer.
‘Analysis of evidence
[21] Groenewald v The Minister of Safety and Security deals with the requirements of malicious prosecution as follows:
‘[22] The requirements in order to succeed with a claim for malicious prosecution are that the defendant must have instituted or instigated the proceedings; the defendant must have acted without reasonable and probable cause; the defendant must have been actuated by an improper motive or malice (or animo iniuriandi); the proceedings must have terminated in the plaintiff’s favour; and the plaintiff must have suffered damage (financial loss or personality infringement).’
‘Malice or animus iniuriandi
[24] The plaintiff must allege and prove that the defendant intended to injure either with direct or indirect intention; animus iniuriandi (and not malice) must be proved; the defendant must at least have foreseen the possibility that he or she was acting wrongfully but continued to act (instituting proceedings), reckless as to the consequences of his or her conduct (dolus eventualis). Negligence or even gross negligence on the part of the defendant will not suffice.
Reasonable and probable cause
[25] The concept of reasonable and probable cause involves both an objective and subjective element. Objectively the defendant must have sufficient facts from which a reasonable person could have concluded that the plaintiff had committed the offence. Subjectively the defendant must have held an honest belief in the guilt of the accused (plaintiff).
[26] In a claim for malicious prosecution and the continuation of malicious prosecution, there has to be a finding as to the subjective state of mind of the prosecutor as well as an objective consideration for the adequacy of the evidence available to him or her. A defendant will not be liable if there exist, objectively speaking, reasonable grounds for the prosecution and the prosecutor subjectively believed in the plaintiff’s guilt.
[23] The evidence that was presented to the prosecution indicated a prima facie case and that a reasonable suspicion existed to continue with the prosecution against the plaintiff. Further, as testified by Ms Mabuku, a suspicion and belief in having a probable cause to prosecute the plaintiff was confirmed by the court, during trial, when the State survived the test in terms of section 174 of the Criminal Procedure Act 51 of 1977. This Court cannot find that the defendants acted with malice and therefore, the plaintiff’s claim of malicious prosecution cannot be allowed to stand and is dismissed.’