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


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.