National Director of Public Prosecutions v Sijoyi Robert Mdhlovu

The respondent, a prosecutor, withdrew charges of armed robbery, murder, and illegal possession of a firearm on 12 June 2015, citing discrepancies in the ballistics report. He withdrew the charges the same day without informing the investigating officer, Sergeant Nkambule, despite agreeing to postpone the matter. The investigating officer lodged a complaint with SAPS alleging breach of agreement. After investigation and consultation with five legal professionals, the Deputy Director of Public Prosecutions (DDPP) decided to prosecute the respondent on two counts of fraud and, alternatively, defeating the ends of justice. The prosecution alleged the respondent deliberately provided false information about the accused's links to charges and that he knew Mr Nonyane had confessed and stolen property was found in his possession. The respondent was tried in August 2017 and discharged under s 174 of the CPA at the close of the State's case. The respondent then sued the NDPP for malicious prosecution, claiming the prosecution lacked reasonable cause and was motivated by malice. The high court found in favor of the respondent.

• Whether the high court erred in finding that the prosecution was instituted without reasonable and probable cause
• Whether the high court erred in finding that the DDPP acted with animus iniuriandi (intention to injure)
• Whether the respondent discharged the burden of proving the essential elements of malicious prosecution
• What constitutes reasonable and probable cause for prosecution in the context of malicious prosecution claims
• Whether the test for reasonable and probable cause is objective or subjective
• Whether prosecutorial independence and discretion were properly considered

The application for leave to appeal was granted with costs. The appeal was upheld. The order of the high court was set aside and replaced with an order dismissing the plaintiff's (respondent's) claim with costs. The respondent was ordered to pay the costs of the appeal.

To succeed in a claim for malicious prosecution, a plaintiff must prove: (a) the defendant set the law in motion; (b) the defendant acted without reasonable and probable cause; (c) the defendant was actuated by malice or animus iniuriandi; and (d) the prosecution failed. The test for reasonable and probable cause is objective - it is whether a reasonable person would have concluded that the accused was probably guilty on the facts available to the prosecutor at the time. Reasonable and probable cause exists if there are reasonable grounds for suspicion of guilt, even if the evidence does not establish a prima facie case or proof beyond reasonable doubt. The relevant inquiry focuses on the information available when the decision to prosecute was made, not on the ultimate outcome of the prosecution. Animus iniuriandi requires proof that the prosecutor intended to cause injury with consciousness of wrongfulness - at minimum dolus eventualis, where the prosecutor foresaw the possibility that the prosecution was wrongful (lacking reasonable grounds) but proceeded recklessly. An improper motive alone is insufficient to establish animus iniuriandi if there was reasonable and probable cause for the prosecution. The desire to ensure prosecutorial accountability is not an improper motive. The plaintiff bears the overall onus of proving all elements of malicious prosecution.

The Court made several non-binding observations: (1) The high court misconstrued its role under Uniform Rule 49(1)(b) in refusing to entertain the condonation application, though this became moot when it ultimately considered the leave to appeal application on the merits. (2) The respondent's failure to appear at the hearing or file heads of argument was noted, though the Court proceeded in his absence. (3) The Court commented that the phrasing of the NDPP's memo referring to "sending a message" was "ill-advised" even though it did not establish malice. (4) The Court emphasized the importance of constitutional imperatives of prosecutorial independence and discretion, noting that prosecutors must be free to pursue cases they believe have merit without undue fear of adverse consequences, provided they act rationally, honestly, and without improper motives. (5) The Court observed that proving malicious prosecution requires "egregious conduct, not just flawed reasoning" and that more is required than "an error of judgement or misplaced zeal." (6) The Court noted that the DDPP had no personal connection to the respondent, having been appointed from another province just a month prior, which reduced the likelihood of a malicious motive.

This case is significant in South African law as it clarifies and reinforces the stringent requirements for establishing malicious prosecution claims against prosecutorial authorities. It emphasizes that: (1) the test for reasonable and probable cause is objective and requires only reasonable grounds for suspicion, not proof beyond reasonable doubt; (2) prosecutors need not have a prima facie case at the time of deciding to prosecute; (3) mere errors in judgment or the ultimate failure of a prosecution do not establish lack of reasonable cause; (4) animus iniuriandi requires proof of intention to injure with consciousness of wrongfulness, not mere negligence or improper motive; (5) prosecutorial independence and discretion must be protected to allow prosecutors to pursue cases they believe have merit without undue fear of civil liability. The judgment protects the exercise of prosecutorial discretion while maintaining accountability for truly malicious prosecutions. It is particularly important in defining the threshold that plaintiffs must meet to succeed in claims against the NDPP and balancing individual rights against the public interest in fearless prosecution of crimes.