Minister for Justice and Constitutional Development v Moleko

The respondent, Mr Moleko, a magistrate at Engcobo in the Eastern Cape, instituted an action for damages based on malicious prosecution. On 16 January 2002, while presiding as a magistrate, Mr Moleko dealt with a case involving three accused charged with armed robbery and hijacking (Schedule 6 offences). Two accused had previously been refused bail by another magistrate in October 2001. However, on 16 January 2002, Mr Moleko released two of the accused on warning without hearing any evidence, despite being allegedly informed by the prosecutor that they were charged with Schedule 6 offences and that section 60(11)(a) of the Criminal Procedure Act 51 of 1977 applied. The State successfully brought an urgent application in the Transkei High Court to review and set aside Mr Moleko's order. Subsequently, the DPP decided to prosecute Mr Moleko for defeating the course of justice. Mr Moleko was ultimately acquitted at trial and then sued the Minister for Justice and Constitutional Development (first appellant), the Director of Public Prosecutions (second appellant), and the Minister of Safety and Security (third appellant) for malicious prosecution.

• Whether the requirements for malicious prosecution were satisfied
• Whether the defendants set the law in motion
• Whether there was an absence of reasonable and probable cause for the prosecution
• Whether the defendants acted with malice (animus injuriandi)
• The extent of judicial independence and immunity from prosecution for acts performed in judicial capacity
• The application of section 60(11)(a) of the Criminal Procedure Act 51 of 1977 regarding Schedule 6 offences
• The role and liability of different state actors (police, prosecutors, Ministers) in instituting criminal proceedings

The appeal by the first appellant (Minister for Justice and Constitutional Development) and third appellant (Minister of Safety and Security) succeeded. The appeal by the second appellant (Director of Public Prosecutions) was dismissed. The second appellant was ordered to pay all costs of the appeal. The trial court's order holding the first and third appellants liable for costs was set aside and replaced with an order making only the second appellant liable for costs.

For a successful claim for malicious prosecution, the claimant must prove: (1) that the defendant set the law in motion; (2) absence of reasonable and probable cause; (3) animus injuriandi (not mere malice); and (4) that the prosecution failed. The decision to prosecute rests with the DPP, not the police or Ministers. Police officers who merely give fair and honest statements of facts to prosecutors are not liable for malicious prosecution. Reasonable and probable cause requires both subjective honest belief and objective reasonableness in instituting proceedings. A prosecutor must exercise ordinary care and prudence, particularly when prosecuting judicial officers, and must conduct proper enquiries before proceeding. Animus injuriandi requires intention to prosecute with consciousness that reasonable grounds are possibly absent (consciousness of wrongfulness); negligence or even gross negligence does not suffice. While judicial officers enjoy independence under section 165 of the Constitution, they are subject to the Constitution and law and are not completely immune from prosecution for acts in their judicial capacity, though such prosecution must be extraordinary and taken with utmost caution.

The Court observed that the trial judge had too strongly stated the principle of judicial independence, suggesting it created an almost immutable rule of immunity from prosecution. The Court clarified that while judicial independence is fundamental and enshrined in the Constitution, it does not equate to complete immunity from criminal prosecution for all acts/omissions in the exercise of judicial functions. The Court noted that criminal prosecution of judicial officers for such acts must remain an extraordinary and exceptional step, requiring decisions to be taken with utmost caution and due regard to judicial independence. The Court also commented on the importance of the principle that persons with reasonable and probable cause for prosecution should not be deterred from setting the criminal law in motion, even if actuated by improper motives. The Court noted problems with the sketchy handwritten records in the magistrate's court, given that magistrate's courts are courts of record.

This case is significant in South African jurisprudence as it clarifies the requirements for malicious prosecution claims, particularly in the context of prosecuting judicial officers. It establishes that while judicial independence under section 165 of the Constitution is fundamental, judicial officers are not completely immune from criminal prosecution for acts performed in their judicial capacity. However, the decision to prosecute a judicial officer must be taken with utmost caution, care and prudence. The case provides important guidance on what constitutes 'reasonable and probable cause' in malicious prosecution claims, emphasizing that prosecutors must conduct proper enquiries and not rely on assumptions or incomplete information, especially when prosecuting judicial officers. It also clarifies the meaning of animus injuriandi (requiring intention and consciousness of wrongfulness, not mere negligence) and distinguishes the liability of different state actors (Ministers, DPP, police) in instituting prosecutions.