Minister of Safety and Security NO v Schubach

The respondent, Leonard Charles Schubach, a Colonel in the South African Police Service and commanding officer of an escort unit responsible for transporting Reserve Bank money, was arrested in March 2005 after firearms, ammunition and explosives were found in a police safe under his control. Although he explained that the firearms were either licensed to him or his wife, were SAPS-issued service weapons, or were held in safe custody on behalf of others, he was arrested and charged with unlawful possession under the Firearms Control Act. The Director of Public Prosecutions (DPP) later instructed that charges relating to licensed firearms be withdrawn, but these instructions were ignored and Schubach was prosecuted on all charges, including those for which there was no basis. He was ultimately acquitted on all charges. Schubach then sued the Minister of Safety and Security and the DPP for malicious prosecution.

The appeal was upheld in part. The High Court order was set aside and replaced with an order awarding the respondent R10 000 in damages, together with interest and costs of suit. The respondent was ordered to pay the appellants’ costs of appeal.

The case clarifies that malicious prosecution can be established in respect of specific charges even where other charges were properly brought, and that prosecutorial immunity under s 42 of the NPA Act does not extend to malicious conduct. It also provides guidance on the careful assessment of damages in malicious prosecution claims.