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.

Electronic instruments – A presumption of reliability, a presumption of regularity, judicial notice, or none of the above?

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

Electronic instruments – A presumption of reliability, a presumption of regularity, judicial notice, or none of the above?

Authors Lee Swales

ISSN: 1996-2118
Affiliations: Lecturer, University of KwaZulu-Natal
Source: South African Journal of Criminal Justice, Volume 31 Issue 2, p. 189 – 211

Abstract

Despite section 15 of the Electronic Communications and Transactions Act 25 of 2002 (‘the ECT Act’), in Delsheray Trust v ABSA Bank Limited, the Western Cape Division of the High Court invoked what it referred to as a common law presumption of reliability — based on an Appellate Division criminal appeal from 1975 (S v Mthimkulu) — in order to ensure seemingly valid computer-based evidence was admitted to court. The factors set out by Corbett JA in Mthimkulu in relation to judicial notice can be adapted to ft modern technology: should a court wish to apply the common law when considering the admissibility of data message evidence (as opposed to applying the directly relevant sections of the ECT Act). Mthimkulu and the ECT Act notwithstanding, the South African Law Reform Commission recommends the introduction of a statutory presumption in civil proceedings. Introducing a presumption of this nature to only civil proceedings and leaving a lacuna in the regulation of criminal law may cause confusion and inconsistent application. A review of recent case law suggests there is no urgent need to adopt such a statutory presumption, and for the short term at least, the current legislative framework is better off as it stands.