Nohour and Another v Minister of Justice and Constitutional Development

The appellants (Nohour and Charles) were convicted in 1994 on charges of kidnapping and rape in the Durban Regional Court. They raised the defence of consensual sex with the complainant, whom they claimed was a prostitute. The complainant denied consent and being a prostitute. They were convicted and sentenced to 7 years' imprisonment after their first appeal increased their sentence. On further appeal to the Supreme Court of Appeal in 2003, their conviction and sentence were set aside. By then, they had served approximately 3 years in prison. They then sued the Minister of Justice and Constitutional Development in delict, alleging that the state prosecutor, Ms Monique Holzen, wrongfully omitted to disclose material information to the defence and the trial court, including: (a) that the complainant admitted to being a prostitute; (b) that the investigating officer witnessed her soliciting; and (c) that the complainant's sworn statement materially differed from her court testimony. The appellants claimed that had this information been disclosed, they would have been acquitted. They claimed damages for wrongful imprisonment, loss of earnings, and emotional suffering.

• Whether the prosecutor's omission to disclose material deviations between the complainant's statement and her evidence constituted a breach of common law duty
• Whether the appellants proved on a balance of probabilities that they would have been acquitted but for the prosecutor's omission (factual causation)
• Whether the prosecutor's conduct was sufficiently closely linked to the harm suffered to establish legal causation
• Whether the elements of wrongfulness and fault (either intentional or negligent) were established
• Whether the ex turpi causa non oritur actio maxim applied to bar the claim

The appeal was dismissed with costs, including costs of two counsel where so employed.

In a delictual claim arising from alleged wrongful conviction due to prosecutorial non-disclosure, the plaintiff must prove factual causation by establishing on a balance of probabilities that, but for the prosecutor's omission, they would have been acquitted. It is insufficient to speculate about what might have happened had the information been disclosed. The plaintiff must adduce evidence demonstrating that the wrongful omission was a conditio sine qua non of the conviction. Where the trial court was aware of the material fact allegedly withheld (even if not through proper disclosure procedures), where the complainant's evidence was corroborated by independent witnesses, and where objective physical evidence supported the prosecution case, the plaintiff fails to establish that non-disclosure of certain statements caused the conviction. Factual causation requires proof that the prosecutor's conduct 'caused or materially contributed to' the harm, and that the wrongful act is 'linked sufficiently closely or directly' to the loss alleged.

The Court made several observations of broader application: (1) It confirmed that the duty to disclose material deviations established in R v Steyn continues to apply and is reinforced by constitutional values. (2) The Court outlined the test for wrongfulness in cases of omission, noting it is determined by reasonableness and whether it would be reasonable to impose liability, with reference to legal policy and community legal convictions. (3) The Court discussed the relationship between wrongfulness and legal causation, noting they are conceptually distinct though often overlapping, with remoteness of damage operating as a 'long stop' even where other elements of delict are present. (4) The Court observed that the traditional tests for legal causation (reasonable foreseeability, adequate causation, proximity) should be applied flexibly and tested against public policy considerations infused with constitutional values. (5) Regarding the ex turpi causa non oritur actio maxim, the Court noted (without deciding) that even if this principle is part of South African law, it had no application on the facts of this case, given the failure to establish causation.

This case is significant in South African law for clarifying the requirements for establishing delictual liability arising from alleged wrongful conviction, particularly the element of causation. It affirms that even where a prosecutor's conduct is wrongful and culpable, liability will only follow if the plaintiff proves on a balance of probabilities that the wrongful conduct caused the harm suffered. The judgment reinforces the 'but-for' test for factual causation and emphasizes that courts must base findings on evidence, not speculation. It also confirms the continued application of R v Steyn regarding prosecutors' disclosure obligations, while illustrating that breach of this duty does not automatically result in delictual liability. The case demonstrates the interplay between wrongfulness, fault, and causation as discrete elements of delict, and the court's policy-making role in determining when liability should be imposed. It further illustrates the high evidentiary burden on plaintiffs claiming damages for wrongful conviction.