Minister for Justice and Constitutional Development v Moleko

Mr Sekele Michael Moleko, a magistrate at Engcobo, released two accused charged with Schedule 6 offences on warning without hearing evidence, contrary to s 60(11)(a) of the Criminal Procedure Act 51 of 1977. The State successfully reviewed and set aside his order in the Transkei High Court. Following this, the Director of Public Prosecutions (DPP) decided to prosecute Mr Moleko for defeating or obstructing the course of justice under the Transkei Penal Code. He was later acquitted in the regional court. Mr Moleko then sued the Minister for Justice and Constitutional Development, the DPP, and the Minister of Safety and Security for damages based on malicious prosecution. The trial court upheld his claim on the merits against the Ministers, leading to an appeal to the Supreme Court of Appeal.

The appeal succeeded. The claims against the Minister for Justice and Constitutional Development and the Minister of Safety and Security were dismissed. The finding of malicious prosecution against the DPP was upheld, and the matter was remitted for determination of quantum if necessary.

The case is a leading authority on malicious prosecution in South African law, particularly concerning prosecutions of judicial officers. It clarifies the requirements of reasonable and probable cause and malice, underscores the independence of prosecutorial decision-making, and affirms the need for restraint and accuracy when criminal charges are considered against judicial officers for acts performed in their judicial capacity.