Quantification of damages for malicious prosecution: A comparative analysis of recent South African and Commonwealth case law (1)

by | Oct 12, 2019 | SACJ, SACJ V31 I2 2018

Quantification of damages for malicious prosecution: A comparative analysis of recent South African and Commonwealth case law (1)

Authors Chuks Okpaluba

ISSN: 1996-2118
Affiliations: Research Fellow, Centre for Human Rights, University of the Free State
Source: South African Journal of Criminal Justice, Volume 31 Issue 2, p. 235 – 259

Abstract

Malicious prosecution, along with wrongful arrest and unlawful detention (false imprisonment), is one of the foundational common law causes of action that vindicates breaches of personal liberty and human dignity rights. What, however, is not in constant discussion is the quantum of damages which a person who has been taken through the criminal prosecution process maliciously and with no reasonable and probable cause has been awarded in any given circumstance simply because very little has been written on the subject. This article ventures into this seemingly forgotten terrain of malicious prosecution in South African and selected Commonwealth jurisdictions. Most often, a malicious prosecution claim is entangled with claims for wrongful arrest and unlawful detention and, in that instance the award can be made in the form of general damages covering the three heads of claim. It is however possible to launch a straight-forward claim for malicious prosecution not only to restore the victim’s impaired reputation caused by a failed prosecution initiated for no apparent reason and pursued, or continued, with an improper purpose as in the recent case of Patel v National Director of Public Prosecutions [2018] ZAKZDHC 17; but also, to obtain compensation for the humiliation suffered, or fnancial loss incurred in the process relating to one’s business or earnings as well as the legal costs of defending the criminal prosecution as in Bayett v Bennett [2012] ZAGPJHC 9. This is the frst of three parts.

The judicial relevance and impact of victim impact statements in the sentencing of rape offenders

by | Oct 12, 2019 | SACJ, SACJ V31 I2 2018

The judicial relevance and impact of victim impact statements in the sentencing of rape offenders

Authors Amanda Spies

ISSN: 1996-2118
Affiliations: Lecturer, University of KwaZulu-Natal
Source: South African Journal of Criminal Justice, Volume 31 Issue 2, p. 212 – 234

Abstract

This article explores the relevance and importance of victim participation in criminal justice proceedings, specifically the use of victim impact statements in the sentencing of rape offenders. It questions the restorative framework within which victim participation has developed and, analyses key court decisions to establish if the restorative purpose of victim impact statements are adhered to. Feminist arguments are explored and focus on the dangerous influence victim impact statements might have in reinforcing sexist and racist stereotypes in an already conservative criminal justice system. Although the South African government advocates for a criminal justice system that supports restorative justice principles, its sovereign state character maintains a retributive framework. The conclusion is reached that victim impact statements are of little use in sentencing practice, as its restorative character is distorted by retributive outcomes.