National Director of Public Prosecutions v Sijoyi Robert Mdhlovu

The respondent, a public prosecutor, withdrew serious criminal charges (including murder and armed robbery) against accused persons in June 2015, allegedly without proper authorisation and contrary to standard prosecutorial practice. Following a complaint by the investigating officer, the Deputy Director of Public Prosecutions (DDPP) investigated and, after consulting several legal professionals and receiving confirmation from the Director of Public Prosecutions, decided to prosecute the respondent on two counts of fraud, alternatively defeating the ends of justice. The respondent was charged in August 2017 but was discharged at the close of the State’s case under s 174 of the Criminal Procedure Act. He subsequently sued the NDPP in the High Court for malicious prosecution and succeeded. The NDPP sought leave to appeal to the Supreme Court of Appeal.

Leave to appeal was granted; the appeal was upheld. The High Court’s order was set aside and replaced with an order dismissing the respondent’s claim for malicious prosecution with costs. The respondent was ordered to pay the costs of the appeal.

The case reaffirms the stringent requirements for establishing malicious prosecution in South African law, particularly the objective test for reasonable and probable cause and the high threshold for proving animus iniuriandi. It underscores the importance of prosecutorial independence and cautions against imposing delictual liability merely because a prosecution fails. The judgment provides authoritative guidance on evaluating prosecutorial decisions and limits the scope of civil claims against the NDPP.