Malala Geophrey Ledwaba v Minister of Justice and Constitutional Development and Others

The appellant, Mr Malala Geophrey Ledwaba, was appointed as Deputy Head of the Directorate of Special Operations (DSO or "Scorpions") on 1 March 2003, holding the rank of Investigating Director. In early 2004, the Integrity Monitoring Unit (IMU) of the NPA commenced an investigation into allegations of misuse of the DSO Confidential Fund (DSO C-Fund) by DSO members, which led to allegations against the appellant. On 16 May 2005, the appellant was placed on special leave pending investigation and disciplinary proceedings. He resigned from the NPA with effect from 31 July 2005 before being charged with misconduct. On 13 October 2006, the appellant was arrested and charged with 23 counts of fraud and theft relating to alleged fictitious transactions from the DSO C-Fund and alleged theft from a close corporation (Kagiso Consulting) of which he was a member. The first trial commenced in 2008 but was discontinued in 2010 when the Regional Magistrate recused himself. The appellant made detailed representations to the NDPP on 20 July 2010, 27 February 2011, and 5 April 2013 seeking withdrawal of charges. All representations were rejected. The trial de novo commenced on 31 October 2012 on 15 counts (with 10 charges withdrawn and 2 new ones added). On 5 February 2014, the appellant was convicted on counts 3, 4, and 11 to 14 and sentenced to 10 years' imprisonment. On 15 January 2018, the High Court upheld his appeal and set aside all convictions. On 10 December 2018, the appellant instituted an action for malicious prosecution against the NDPP and the Head of the Specialised Commercial Crimes Court Unit. The High Court dismissed his claim, finding he had failed to prove malice or animus injuriandi. The appellant appealed with leave of the High Court.

• Whether the High Court erred in determining the issue of malice/animus injuriandi before considering reasonable and probable cause in a malicious prosecution claim
• What is the correct sequential approach to determining the elements of malicious prosecution
• Whether the prosecution had reasonable and probable cause to prosecute the appellant on each of the charges
• At what time must reasonable and probable cause be assessed
• Whether the prosecution acted with malice or animus injuriandi in prosecuting the appellant
• Whether the withdrawal of charges and discharge on certain counts demonstrated absence of reasonable and probable cause

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

The binding legal principles established are: 1. In malicious prosecution claims, the determination of whether the defendant had reasonable and probable cause to prosecute must precede the determination of whether the defendant acted with animus injuriandi, because animus injuriandi means directing one's will to prosecuting in the awareness that reasonable grounds for prosecution were absent. 2. Reasonable and probable cause exists where a defendant has an honest belief that the facts available at the time of taking the decision to prosecute constituted an offence which would lead a reasonable person to conclude that the person against whom charges are brought was probably guilty of such offence. 3. The assessment of reasonable and probable cause must be made at the time the prosecution was instituted (when the warrant of arrest was applied for) based on the material then available to the prosecutor, and must be reassessed when representations are made. 4. Where there are numerous discrete charges, each must be considered separately in determining whether the prosecution had reasonable and probable cause. 5. The withdrawal of charges during prosecution or discharge under section 174 of the Criminal Procedure Act does not necessarily demonstrate absence of reasonable and probable cause at the time the prosecution was instituted.

While not binding, the Court made several notable observations: 1. The Court noted that a litigant is entitled to a decision on all issues raised, especially where there is an option of further appeal, which provides an additional reason why the High Court should have determined the reasonable cause issue even after finding against the appellant on malice. 2. The Court observed that the question of whether there was reasonable and probable cause must not be confused with whether there is sufficient evidence upon which the accused may be convicted - the latter question is for the criminal trial court to decide at the conclusion of the evidence. 3. The Court commented that in a malicious prosecution trial, the plaintiff's attempts to justify his actions and prove his innocence are not the correct approach - the test is whether there was reasonable and probable cause based on the material available to the prosecutor at the relevant time. 4. The Court noted approvingly that prosecutors' willingness to withdraw charges and support section 174 applications for discharge demonstrated professional conduct and willingness to acknowledge defects in the case, which is inconsistent with malice. 5. The Court observed that for a conspiracy theory involving multiple senior prosecutors to be credible, there would need to be evidence that all were biased or part of the conspiracy, which was notably absent in this case. These observations provide practical guidance on the conduct of malicious prosecution trials and the assessment of prosecutorial conduct.

This judgment is significant in South African law for several reasons: 1. **Sequential approach to malicious prosecution**: It clarifies and reinforces that courts must first determine whether there was reasonable and probable cause before examining malice/animus injuriandi. This is because the consciousness of wrongfulness inherent in animus injuriandi presupposes awareness that reasonable grounds were absent. 2. **Timing of assessment**: It confirms that reasonable and probable cause must be assessed at the time the prosecution was instituted (when warrant of arrest was applied for) and when representations are made, not with the benefit of hindsight. 3. **Standard for reasonable and probable cause**: It reaffirms the Beckenstrater test - whether the prosecutor had an honest belief based on available information that would lead a reasonable person to conclude probable guilt. This is distinct from whether there is sufficient evidence for conviction (which is for the trial court). 4. **Charge-by-charge analysis**: Where there are multiple discrete charges, each must be considered separately in determining reasonable and probable cause. 5. **Withdrawal of charges**: The withdrawal of charges or discharge under section 174 does not necessarily indicate absence of initial reasonable cause - it may reflect prosecutorial reassessment, evidentiary developments, or practical considerations. 6. **Conspiracy allegations**: The judgment demonstrates the high evidential burden on plaintiffs alleging prosecutorial conspiracy, particularly where multiple independent senior prosecutors have reviewed the matter. 7. **Protection of prosecutorial discretion**: The judgment protects prosecutors acting reasonably and in good faith based on available evidence from malicious prosecution claims, even where prosecutions ultimately fail. The case provides important guidance on the assessment of malicious prosecution claims against state prosecutors and the National Prosecuting Authority.