Persecutors or Prosecutors? Have you been maliciously prosecuted?

Amorette Gangel – Director

Once a criminal matter sees the light of a Court, there are three things which can happen:

  • The charges can be withdrawn against you;
  • The prosecution can be stopped which procedure is the equivalent of an acquittal; and
  • The accused can be convicted (i.e. guilty) or acquitted (i.e. guilty).


There are many instances where, when the charges have been withdrawn against you, or a prosecution has been stopped or you have been acquitted, the person feels done in by the justice system.

Often questions are asked such as: “why did I have to go through all of this just to be acquitted or for the State to withdraw the charges”, “if the Magistrate or Judge could see the facts for what they are why could the Prosecutor not do the same”, “why was I dragged through this”, “I lost my job because of the ongoing prosecution and now I have been acquitted, what now?” etc.

A further important consideration is – who is going to pay for the legal fees that you have incurred in defending yourself in a case where it was clear from the outset that there was no likelihood of the prosecution succeeding against you.

You are not without recourse or remedy.

Malicious prosecution is an abuse of the process of court by intentionally and wrongfully setting the law in motion in a criminal matter. Setting the law in motion, the context of a malicious prosecution, is where a Prosecutor takes the decision to institute a prosecution against you.

When instituting a prosecution, the Prosecutor must have an honest belief, founded on reasonable grounds that the institution of proceedings is justified. Further, there must be reasonable and probable cause before instigating prosecution against an accused.

In case law, specifically dealing with claims of malicious prosecution, the Court have emphasized that reasonable and probable can be equated to:

Not only must the defendant (the prosecutor – represented by the Director of Public Prosecutions) have subjectively had an honest belief in the guilt of the plaintiff (the accused), but his belief and conduct must have been objectively reasonable, as would have been exercised by a person using ordinary care and prudence”.

It is therefore of extreme importance that Prosecutors consider the contents of the case docket they are provided with, before deciding whether or not to institute a prosecution.

Prosecutors should also “not 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.”

It is a common misconception that Prosecutors are there to secure convictions. This could not be further from the truth. Prosecutors are not persecutors and they are there to assist the Court in ascertaining the truth. This was reiterated in the matter of S v Jija and Others 1991 (2) SA 52.

In order to institute a claim for malicious prosecution, a litigation must comply with Section 3 of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 (“the Act”).

Section 3 of the Act states that a notice must be delivered to the Organ of State (i.e. the Director of Public Prosecution / National Director of Public Prosecution) wherein the claimant notifies the Organ of State that they intend to institute legal proceedings against them.

It is standard to, in that notice to the State in terms of Section 3 of the Act, to couch it in the form of a letter of demand wherein you include the background as well as demand for compensation.

It is extremely important to note that this notice must be delivered to the Organ of State within 6 months of the charges being withdrawn against you or you being acquitted.

A claimant must, in terms of the Act, wait 60 days before instituting a claim out of Court, in the form of a Combined Summons. This Combined Summons must be issued and served by the Sheriff within three years of the charges being withdrawn against you or you being acquitted.

It is important to know what you can claim for.

You can claim for general damages and special damages. General damages pertain to your pain and suffering, humiliation, damages to your dignity etc. Special damages pertain to any monetary loss suffered by you as a result of the malicious prosecution.

Not all matters will amount to a malicious prosecution even if the charges were withdrawn against you or where you were acquitted. It is therefore important to assess what information the Prosecutor had before them when they took the decision to institute a prosecution against you.


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