The Minister of Safety and Security N.O. v Leonard Charles Schubach

The respondent, Mr Leonard Charles Schubach, was a Colonel in the South African Police Service and commanding officer of the Escort Unit responsible for escorting money for the South African Reserve Bank. On 14 March 2005, following information from an informer, various firearms, ammunition and explosives were found in a walk-in safe at the offices of the Escort Unit which the respondent controlled. The items seized included: (1) his service firearm; (2) licensed firearms owned by him and his wife; (3) firearms recovered by the police diving unit from Roodeplaat Dam; (4) firearms kept for his friend Mr van der Merwe; (5) weapons held in safe custody for his friend Mr Kruger; and (6) police explosives/flares used for operational purposes. Despite his explanations, the respondent was arrested for unlawful possession of all the firearms and ammunition, detained until 15 March 2005, and released on R3000 bail. The DPP decided not to prosecute on charges relating to his own and his wife's licensed firearms and instructed the Senior Public Prosecutor accordingly, but this instruction was ignored. The respondent was prosecuted on all charges including those relating to licensed firearms, and was ultimately acquitted of all charges. He was also suspended from his duties without pay. The respondent then sued for damages arising from unlawful arrest and malicious prosecution, though he later abandoned the unlawful arrest claim.

• Whether the prosecution of the respondent on various charges was instituted without reasonable and probable cause
• Whether the prosecution was malicious (animo injuriandi)
• Whether the prosecution on different sets of charges could be evaluated separately for malice and reasonable cause
• Whether section 42 of the National Prosecuting Authority Act 32 of 1998 provided immunity to the DPP for prosecution instituted in good faith
• What is the appropriate quantum of damages for malicious prosecution
• Whether the respondent was entitled to recover legal costs incurred in defending the criminal proceedings as part of damages

The appeal was upheld in part. The order of the North Gauteng High Court was set aside and replaced with the following: (a) The first and second defendants (appellants) were ordered jointly and severally to pay the plaintiff (respondent) R10,000; (b) The defendants were ordered to pay interest at 15.5% per annum a tempore morae from date of summons to date of payment; (c) The defendants were ordered jointly and severally to pay the plaintiff's costs of suit. The respondent was ordered to pay the appellants' costs of the appeal, including costs of two counsel.

The binding legal principles established are: (1) In malicious prosecution cases involving multiple charges, each discrete set of charges must be evaluated separately for the existence of reasonable and probable cause - it is not a single indivisible act. (2) The test for absence of reasonable and probable cause contains both subjective and objective elements: there must be actual belief in the accused's guilt by the prosecutor, and that belief must be reasonable in the circumstances based on information that would lead a reasonable person to conclude the accused was probably guilty. (3) Section 42 of the National Prosecuting Authority Act 32 of 1998 does not provide immunity where prosecution is malicious, as malicious conduct negates good faith which is a prerequisite for the protection. (4) To rely on section 42 immunity, a prosecutor must show they acted within the authority conferred by section 20 and took all reasonable precautions to avoid or minimize injury to others. (5) In assessing damages for malicious prosecution, courts must account for the fact that some charges may have been based on reasonable grounds and only award damages attributable to the wrongful prosecution. (6) Claims for legal costs as special damages in malicious prosecution require proper proof of expenditure and must be apportioned to exclude costs relating to legitimate charges.

The Court observed that the DPP's section 42 defence was not raised in the pleadings but only when the application for leave to appeal was made, and was not persisted with in oral argument before the Supreme Court of Appeal. The Court noted that it was difficult to understand Ms Meintjies' explanation regarding the explosives charge, particularly given her prior instruction to send explosives to the forensic laboratory before trial and her admission that she did not follow up on this instruction. The Court commented that the evidence supporting the respondent's claim for R93,000 in legal costs was "very vague, flimsy and devoid of substance," with the respondent himself admitting he had no proof of these expenses. The judgment also noted uncertainty about how much of the claimed legal costs related to the part of the case where there was probable cause to prosecute versus costs connected to his challenge against his suspension from police duties.

This case is significant in South African law for clarifying important principles regarding malicious prosecution claims. It establishes that where multiple discrete charges are brought, each set of charges must be evaluated separately for reasonable and probable cause and malice - the presence of reasonable grounds for some charges does not immunize prosecution on other charges lacking such grounds. The judgment also clarifies the scope of section 42 of the National Prosecuting Authority Act, holding that this immunity provision does not protect prosecutors who act maliciously, as malicious conduct is inherently incompatible with good faith. The case provides guidance on assessment of damages in malicious prosecution cases, emphasizing that courts must carefully apportion damages to reflect only those aspects of prosecution that were wrongful. It reinforces that claims for legal costs as special damages require proper proof and cannot be awarded on vague or unsubstantiated evidence. The case illustrates the application of dolus eventualis in the context of malicious prosecution where prosecutors proceed recklessly despite awareness of wrongfulness.