De Bruin and Another v Minister of Police N.O and Another (849/2018;895/2018) [2023] ZAECQBHC 20 (28 March 2023)

De Bruin and Another v Minister of Police N.O and Another (849/2018;895/2018) [2023] ZAECQBHC 20 (28 March 2023)

The plaintiffs' particulars of claim and evidence advanced a cause of action based on unlawful (negligent) prosecution, not malicious prosecution. South African law does not recognise a delictual claim for damages by an accused person arising from negligent prosecution by police or prosecutors; only malicious prosecution is actionable, requiring proof of malice and absence of reasonable and probable cause. The plaintiffs failed to plead or prove the necessary elements of malicious prosecution and did not adduce prima facie evidence to sustain such a claim. The pleadings were vague, embarrassing, and lacked the averments necessary to sustain a cause of action. Accordingly, there is no...

Citation
[2023] ZAECQBHC 20
Parties
Plaintiff: Gideon De Bruin; Plaintiff: Neville Peterson; Defendant: Minister of Police N.O.; Defendant: National Director of Public Prosecutions
Court
Eastern Cape High Court, Gqeberha
Jurisdiction
South Africa
Judgment Date
28 March 2023
Case Number
849/2018;895/2018
Procedural Posture
Civil Trial / Application for Absolution From the Instance at Close of Plaintiffs' Case
Outcome
Application for absolution from the instance granted in respect of both plaintiffs' claims for unlawful prosecution (claim no. 3). Costs awarded against the plaintiffs, jointly and severally.
Judges
Laing
Legal Topics
Absolution From the Instance, Malicious Prosecution, Negligent Prosecution, Wrongful Arrest, Wrongful Detention
Civil Procedure Delict Absolution From the Instance Malicious Prosecution Negligent Prosecution Wrongful Arrest Wrongful Detention

Case Brief

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Parties

Gideon De Bruin

Plaintiff

Neville Peterson

Plaintiff

Minister of Police N.O.

Defendant

National Director of Public Prosecutions

Defendant

Procedural Posture

Civil Trial / Application for Absolution From the Instance at Close of Plaintiffs' Case

Legal Issues

  1. 1 Whether the plaintiffs' particulars of claim disclose a cause of action for damages based on unlawful (negligent) prosecution.
  2. 2 Whether South African law recognises a delictual claim for damages by an accused person arising from negligent prosecution by police or prosecutors.
  3. 3 Whether the plaintiffs have adduced prima facie evidence to sustain a claim for malicious prosecution.

Ratio Decidendi

The plaintiffs' particulars of claim and evidence advanced a cause of action based on unlawful (negligent) prosecution, not malicious prosecution. South African law does not recognise a delictual claim for damages by an accused person arising from negligent prosecution by police or prosecutors; only malicious prosecution is actionable, requiring proof of malice and absence of reasonable and probable cause. The plaintiffs failed to plead or prove the necessary elements of malicious prosecution and did not adduce prima facie evidence to sustain such a claim. The pleadings were vague, embarrassing, and lacked the averments necessary to sustain a cause of action. Accordingly, there is no...

Court Disposition

Application for absolution from the instance granted in respect of both plaintiffs' claims for unlawful prosecution (claim no. 3). Costs awarded against the plaintiffs, jointly and severally.

Orders

  • The application for absolution from the instance, brought by the first and second defendants, respectively, against the first and second plaintiffs' claims for unlawful prosecution (claim no. 3), are granted.
  • The plaintiffs are held liable for the defendants' costs, jointly and severally, in the event of one paying the other to be absolved.