Nakana v Claassens & Others

The appellant (Mr Nakana) and first respondent (Mr Claassens) were neighbours on adjacent farms in Polokwane with an acrimonious relationship. On 1 July 2015, Mr Claassens' employee removed a boundary fence on his instructions to replace it with a sturdier fence. Mr Nakana reported this to the South African Police Service (SAPS). Shortly thereafter, Warrant Officer Williams and other SAPS members arrested and detained Mr Claassens for approximately three days (from 14h30 on 1 July 2015 to 9h30 on 3 July 2015). Mr Claassens was charged with theft of the boundary fence and contravention of a protection order, and prosecuted in the Polokwane Magistrates' Court. On 11 January 2016, the prosecution withdrew the charges. Mr Claassens instituted a claim for unlawful arrest, detention and malicious prosecution against Mr Nakana, the Minister of Police, and W/O Williams. At the commencement of trial, Mr Nakana conceded liability in the malicious prosecution claim. The trial court (Mdhluli AJ) awarded R40,000 for unlawful arrest and detention but dismissed the malicious prosecution claim. The full court set aside this order and awarded R400,000 against the Minister for unlawful arrest and detention, and R250,000 against Mr Nakana for malicious prosecution.

• Whether the Supreme Court of Appeal may interfere with the full court's award of general damages for malicious prosecution against the appellant
• Whether the full court committed a misdirection in awarding R250,000 in general damages for malicious prosecution
• Whether new evidence could be adduced on appeal concerning the merits of liability after concession made at trial
• What is the appropriate quantum of damages for malicious prosecution given the appellant's limited role in initiating the complaint

The appeal was upheld with no order as to costs. Paragraph 2.2 of the full court's order was set aside and replaced with an order that the first respondent (Mr Claassens) is ordered to pay the sum of R80,000 to the appellant (Mr Nakana), being general damages for malicious prosecution. The application to adduce further evidence on appeal was struck from the roll with costs.

An appeal court may interfere with an award of general damages where the lower court has not exercised its discretion judicially, was influenced by wrong principles or a misdirection on the facts, or reached a decision which could not reasonably have been made by a court properly directing itself to all relevant facts and principles. Where a full court commits a misdirection on the facts by taking into account matters not contained in the trial record, an appellate court is at large to interfere with the award and substitute its own discretion. In assessing damages for malicious prosecution, the court must consider the extent of the defendant's actual involvement and control over the prosecution - damages should be proportionate to the defendant's role. A concession of liability made in open court at trial constitutes a binding compromise that settles the merits of the claim and cannot be revisited on appeal through applications to adduce further evidence, absent an order setting aside the concession. Courts must avoid duplicating damages awards where multiple parties are liable for different aspects of the same harm.

The Court observed that while Mr Nakana's omission to properly concede liability may have resulted from misguided legal advice, his remedy was to apply to set aside the concession or to sue the attorney for unprofessional conduct, not to attempt to revisit the issue on appeal. The Court noted that a compromise agreement creates new rights and obligations independent of the original cause, and may only be set aside on grounds of fraud or justus error vitiating true consent. The Court expressed hope that making no order as to costs would contribute to ending the hostilities between the neighbouring parties. The judgment lists factors to be considered in awarding general damages for malicious prosecution, including: gravity of charges, nature of prosecution, length of time subjected to prosecution, absence of reasonable and probable cause, presence of improper motive or malice, deprivation of liberty, status/age/health of plaintiff, publicity given to proceedings, and absence of reasonable explanation or apology - noting this is not a closed list.

This case clarifies the principles governing appellate interference with awards of general damages in malicious prosecution claims. It establishes that an appeal court may interfere where the lower court committed a misdirection on the facts or reached a decision that could not reasonably have been made by a court properly directing itself. The judgment emphasizes that damages must be proportionate to the defendant's actual involvement and role in the malicious prosecution. It also reinforces that a concession of liability made at trial creates a binding compromise that settles the merits of the claim, and cannot be revisited on appeal through applications to adduce further evidence absent an order setting aside the concession. The case provides guidance on avoiding duplication in damages awards where multiple parties are liable for different aspects of the harm suffered. It contributes to the jurisprudence on quantum of damages in malicious prosecution cases in South African law.