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

by | Oct 12, 2019 | SACJ, SACJ V32 I1 2019

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

Abstract

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.

The Admissibility of Evidence Obtained Through Human Rights Violations in Seychelles

by | Sep 8, 2019 | SACJ, SACJ V32 I1 2019

The Admissibility of Evidence Obtained Through Human Rights Violations in Seychelles

Authors Jamil Ddamulira Mujuzi

ISSN: 1996-2118
Affiliations: Professor of Law, University of the Western Cape
Source: South African Journal of Criminal Justice, Volume 32 Issue 1, p. 1 – 27

Abstract

Unlike the Constitutions of South Africa, Kenya and Zimbabwe which expressly provide for circumstances in which evidence obtained through human rights violations may be admitted, the Constitution of Seychelles is silent on this issue. However, courts in Seychelles have had to decide whether or not to admit evidence obtained through human rights violations. Courts have used both the constitutional provision on the rights of arrested and detained persons and the Judges Rules in these cases. In this article the author discusses cases in which Seychellois courts have dealt with the issue of evidence obtained through human rights violations and in violation of the Judges Rules. Relying on jurisprudence from South Africa, Kenya and Zimbabwe, it is argued that there may be a need to amend the Constitution of Seychelles to include an express provision regulating the admissibility of evidence obtained through human rights violations. Alternatively, the Seychelles Court of Appeal would have to lay down the criteria that courts should use in determining whether to admit evidence obtained through human rights violations. The author also relies on case law from Seychelles and from some African countries such as Mauritius, Kenya and Namibia to highlight the weaknesses of the Judges Rules. These weaknesses bolster the argument for the need for a constitutional provision on the admissibility of evidence obtained through human rights violations in Seychelles.