Quantification of damages for malicious prosecution: A comparative analysis of recent South African and Commonwealth case law (2)

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 3, p. 410 – 436


The first part in this three-part submission was devoted to a number of preliminary issues relating to the assessment of damages for malicious prosecution, such as the confusion caused by the word ‘damage’ as an element in the law of malicious prosecution and ‘damages’ in terms of the amount a successful plaintiff in an action for malicious prosecution could recover. In that part also, opportunity was taken to explore the circumstances where damages have been awarded in an action for malicious prosecution in South Africa and the ascertainment of the amount in such instances, with the tip of the iceberg being the recent case of the former Judge President of KZN High Court. The present article continues with the case study approach by investigating the experiences of Australia, Canada and Trinidad and Tobago having identified instances where damages has been awarded for the tort of malicious prosecutions in those common law jurisdictions. The cases discussed with regard thereto are no doubt informative but, the Privy Council judgment from Trinidad and Tobago is by far more instructive and dynamic on the factors to be taken into account in the quantification of damages for malicious prosecution from the point of view of the ordinary member of the society. Thus, the reputational damage which the law protects by an award of damages does not distinguish between a homeless person and an urban or rural dweller.