Holden v Assmang Limited

The appellant, Linda Holden, is a counselling psychologist registered with the Health Professions Council of South Africa (HPCSA). On 30 June 2008, the respondent, Assmang Limited, reported her to the HPCSA, alleging she was grossly in breach of professional ethics by diagnosing manganism, which the respondent contended should only be diagnosed by a medical practitioner specialised in neurological movement disorders. On 29 September 2008, the appellant filed a detailed response with supporting documents. The HPCSA's Committee of Preliminary Inquiry dealt with the complaint on 30 October 2009. On 13 November 2009, the HPCSA informed the appellant that the committee had accepted her explanation and resolved not to take any further action against her. On 6 August 2012, the appellant instituted an action for damages against the respondent based on malicious proceedings. The respondent raised a special plea of prescription.

• When does prescription begin to run in a claim for malicious proceedings?
• Whether the requirement that proceedings must terminate favourably to the plaintiff is necessary for completion of a cause of action in malicious prosecution?
• Whether prescription begins to run before a professional disciplinary tribunal has dismissed a complaint against the plaintiff?
• Whether the principles of malicious prosecution apply to proceedings before statutorily created professional tribunals such as the HPCSA?

The appeal was upheld with costs. The order of the full court (KwaZulu-Natal Division) was set aside and replaced with an order dismissing the appeal with costs, thereby restoring the judgment of the court of first instance (Henriques J) which had dismissed the respondent's special plea of prescription with costs.

In a claim for malicious prosecution or malicious proceedings, prescription only begins to run under section 12 of the Prescription Act 68 of 1969 once all four requirements of the cause of action are complete, including that the proceedings have terminated favourably to the plaintiff. A complete cause of action only arises when the entire set of facts which the creditor must prove in order to succeed with the claim is in place. In the context of malicious prosecution involving proceedings before a statutorily created professional tribunal such as the HPCSA, which employs formal machinery analogous to criminal prosecution with punitive sanctions, the cause of action is not complete and prescription does not begin to run until the plaintiff is notified that the complaint has been dismissed. This is because a claim for malicious proceedings cannot anticipate the outcome of proceedings yet to be finalised, as to hold otherwise would permit recognition of a claim when proceedings may yet be decided against the plaintiff.

The court observed that the English position in Gregory v Portsmouth City Council (2000) 1 AC 419, which held that the tort of malicious prosecution does not extend to disciplinary proceedings, may not apply to all types of disciplinary proceedings in South Africa. The court noted that statutory tribunals such as the HPCSA, which employ formal machinery of criminal prosecution with punitive sanctions, are distinguishable from disciplinary proceedings before voluntary associations or even a City Council as in Gregory's case. The court expressly stated that the position regarding those other types of disciplinary proceedings "remains for another day." The court also clarified the proper interpretation of the judgment of Froneman J in Kruger v National Director of Public Prosecutions [2019] ZACC 13, explaining that Froneman J was only addressing two of the four requirements for malicious prosecution (lack of reasonable and probable cause and animus iniuriandi) because the other two requirements (including that prosecution must have terminated favourably) were not in issue in that case, and that he did not purport to restrict the requirements to only those two elements.

This case is significant in South African law as it clarifies when prescription begins to run in claims for malicious prosecution involving professional disciplinary tribunals. It establishes that the principles applicable to malicious criminal prosecution extend to proceedings before statutorily created professional tribunals like the HPCSA, particularly where such tribunals employ formal machinery analogous to criminal prosecution with punitive sanctions. The judgment confirms that all four requirements for malicious prosecution, including that proceedings must terminate favourably to the plaintiff, are essential before a complete cause of action arises and prescription can begin to run. This protects professionals from having to institute claims prematurely while disciplinary proceedings are still pending, and ensures clarity on the application of section 12 of the Prescription Act 68 of 1969 to such claims. The judgment also provides important guidance on distinguishing between different types of disciplinary proceedings and clarifies the ratio in Kruger v National Director of Public Prosecutions regarding which facts must be known for prescription to commence.