Quantification of damages for malicious prosecution: A comparative analysis of recent South African and Commonwealth case law (3)

Authors Chuks Okpaluba

ISSN: 1996-2118
Affiliations: Professor of Law, University of the Western Cape
Source: South African Journal of Criminal Justice, Volume 32 Issue 1, p. 28 – 51


Having dealt with some vital preliminary issues, and the case study on where damages for malicious prosecution has been awarded in South Africa in the first of three articles; and having undertaken the case study of the developments in Australia, Canada and Trinidad and Tobago in the second article, this last instalment, the third article, discusses the case law in three Roman-Dutch jurisdictions of Lesotho, Namibia and Swaziland. Specifically highlighted herein, is the clear distinction between the heads of damage recoverable in the Roman-Dutch jurisdictions as compared to what obtains in the English common law of tort. The difference is in the total absence of claims for ‘exemplary’, ‘punitive’ or ‘aggravated’ damages in these Southern African jurisdictions ostensibly based on the compensatory function of damages. Such an issue arose in the so-called ‘ritual killer’ case, and the Supreme Court of Swaziland was not prepared to import into the Swazi law, ‘a highly contentious innovation of this kind’. On the contrary, and as clearly demonstrated in this presentation using Canadian case law, these awards are constantly made in English, Australian, New Zealand, Trinidad and Tobago and Canadian courts to punish, deter, denounce or repudiate the high-handed or reprehensible conduct on the part of the prosecutor. The question, ultimately, is whether the right of the person maliciously prosecuted has been vindicated and the damages awarded must have served as a solatium to the injured feelings of the victim.