Minister of Safety and Security v Lincoln

André Edward Lincoln, a Major-General in the South African Police Service (SAPS) and former ANC intelligence operative, was appointed to command the Presidential Investigative Task Unit (PITU) in 1996 to investigate alleged mafia connections. The unit operated covertly outside normal command structures. In 1996, Commissioner Fivaz ordered an efficiency assessment of the PITU. During this assessment, Sergeant Abramn Smith, who had left the PITU after conflicts with Lincoln, made serious allegations against Lincoln in an affidavit. This led to an extensive investigation by Director Knipe and Superintendent Rossouw under supervision of the Attorney-General's office (Advocate Bouwer). Approximately 200 witnesses were interviewed. The investigation resulted in 47 criminal charges against Lincoln, including numerous fraud counts relating to: hiring of motor vehicles, subsistence and travelling allowances while living in a safe house, safe-house rentals, payments to informers, and the release of a prisoner (Mangiagalli). Lincoln was convicted on 17 counts in 2002 and sentenced to nine years' imprisonment. On appeal, all convictions were set aside. Lincoln then sued the Minister of Safety and Security for malicious prosecution.

• Whether employees of the Minister of Safety and Security instigated the prosecution of Lincoln
• Whether the prosecution was instituted without reasonable and probable cause
• Whether the elements of the actio iniuriarum for malicious prosecution were established
• What constitutes 'setting the law in motion' or 'instigating' a prosecution when the decision to prosecute is made by the National Director of Public Prosecutions
• The onus of proof in establishing each element of malicious prosecution
• Whether providing information to investigators that leads to prosecution constitutes instigation

The appeal succeeded with costs, including costs of two counsel. The full court's order was set aside and replaced with an order dismissing the appeal with costs, including costs of two counsel. This effectively restored the trial court's dismissal of Lincoln's claim.

To establish malicious prosecution under the actio iniuriarum, a plaintiff must prove that the defendant: (1) set the law in motion (instituted or instigated the proceedings); (2) acted without reasonable and probable cause; and (3) acted with malice (animus injuriandi); and (4) that the prosecution failed. Each element must be established distinctly. Where prosecutions are conducted by the state, 'instigation' requires more than providing information to police and leaving them to exercise their own judgment. An informer instigates a prosecution when the informer makes a wilfully false statement in a material particular, but for which no prosecution would have been undertaken - establishing a causal connection between false information and the institution of prosecution. Reasonable and probable cause means an honest belief founded upon reasonable grounds that institution of proceedings is justified, involving both subjective and objective elements. The plaintiff bears the onus of proving the absence of reasonable and probable cause by presenting the totality of evidence that was before prosecuting authorities, not merely selective evidence. Where investigators conduct a thorough investigation, present both incriminatory and exculpatory evidence to prosecuting authorities, and the decision to prosecute is made independently by those authorities exercising their own discretion, the investigators have not instigated the prosecution absent proof they wilfully presented false evidence or acted without honest belief.

The Court expressed doubt about the full court's finding of malice, suggesting the majority may have confused and conflated the requirement for animus injuriandi with motive, but found it unnecessary to make a definitive finding on this issue. The Court noted that the integration of former liberation movement members and former apartheid-era police officers into the unified SAPS was understandably met with apprehension and distrust from both sides, which became a recurring theme in the dispute. The Court observed that where multiple charges have been brought against a plaintiff, each charge is discrete and must be evaluated independently.

This case clarifies the requirements for establishing malicious prosecution in South African law, particularly in the context of prosecutions initiated by the state rather than private individuals. It reinforces the high threshold a plaintiff must meet in proving each distinct element of the cause of action. The judgment provides important guidance on what constitutes 'instigating' a prosecution where the ultimate decision is made by prosecutorial authorities exercising independent discretion. It emphasizes that merely providing information to investigators, even if that information triggers an investigation, does not constitute instigation unless the informer does more than report facts and leave authorities to exercise their own judgment, or unless the informer deliberately provides false information that causes the prosecution. The case also clarifies the burden of proof regarding reasonable and probable cause, requiring plaintiffs to present comprehensive evidence of what was before the prosecuting authorities, not selective evidence favourable to the plaintiff.