Malala Geophrey Ledwaba v Minister of Justice and Constitutional Development and Others

The appellant, Mr Ledwaba, was formerly the Deputy Head of the Directorate of Special Operations (the Scorpions) within the National Prosecuting Authority (NPA). An investigation by the NPA’s Integrity Monitoring Unit into alleged misuse of confidential funds implicated him. Following forensic investigations and internal reports indicating prima facie criminality, he was arrested in October 2006 and prosecuted on multiple counts of fraud and theft relating mainly to alleged misuse of DSO confidential funds and, in some counts, alleged misappropriation of funds from a close corporation. The prosecution went through several phases, including representations by the appellant to the NDPP requesting withdrawal of charges. Some charges were withdrawn, others proceeded to trial. He was partially convicted in 2014 but those convictions were overturned on appeal in 2018. In 2018, he instituted a civil action for damages based on malicious prosecution against the NDPP and others, alleging absence of reasonable and probable cause and malice. The High Court dismissed the claim, finding that malice was not proved. He appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel.

The case clarifies South African law on the proper sequencing and content of the elements of malicious prosecution. It confirms that courts must first determine the absence of reasonable and probable cause before considering malice, and it reinforces that reasonable and probable cause is assessed with reference to the information available at the time of instituting the prosecution, not the ultimate outcome of the criminal trial.