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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not Reportable
Case No:  198/2013

In the matter between:

GEORGE MAGWABENI

APPELLANT

and

CHRISTOPHER LIOMBA

RESPONDENT

Neutral citation: Magwabeni v Liomba (198/13) [2015] ZASCA 117 (11
September 2015)

Coram:

Cachalia, Majiedt and Zondi JJA

Heard:

28 August 2015

Delivered:

11 September 2015

Summary:
Delict - Malicious prosecution – requirements restated - whether
plaintiff proved prosecution initiated without reasonable and
probable cause and with malice.

____________________________________________________________________
ORDER
___________________________________________________________________

On appeal from: Limpopo Local Division, Thohoyandou (Kganyago AJ sitting as
court of first instance):
The appeal is upheld with costs including the wasted costs occasioned by the
postponement of the appeal on 10 March 2014;
The order of the court a quo, as it relates to the defendant, is set aside and
replaced with the following order:
‘The plaintiff’s claim is dismissed with costs.’

JUDGMENT

Zondi JA (Cachalia and Majiedt JJA concurring):
[1] This appeal, with the leave of this Court, is against the judgment of the Limpopo
Local Division, Thohoyandou (Kganyago AJ) finding the appellant (‘the defendant’)
liable for damages for malicious prosecution. It arose from a complaint that he had
lodged against the respondent (‘the plaintiff’) with the South African Police Service,
which was followed by the latter’s arrest and detention. The plaintiff was charged
following the complaint, but the charges were subsequently withdrawn and he was
released after having spent a week in detention.

[2] Following the withdrawal of charges against him the plaintiff instituted two
separate actions in the court a quo, one against defendant and the other against the
Minister of Police (‘the Minister’). The basis of his claim against the defendant was
predicated upon the allegation that the defendant had wrongfully and maliciously set the

law in motion by laying a false charge of ‘theft /fraud/trespassing’ with the
Thohoyandou police. The plaintiff alleged that the defendant had no reasonable or
probable cause for doing so, and that he had maliciously conveyed this false information
to the police. The claim against the Minister was for his ‘unlawful’ arrest and detention.
The two actions were consolidated. The action against the Minister was dismissed. The
plaintiff does not appeal that outcome. This appeal by the defendant therefore concerns
only the adverse finding against him.

[3] The plaintiff’s evidence was that he was an electrical contractor, working for the
defendant, who ran a hotel business in Thohoyandou. He rented premises from the
defendant. A dispute arose between them and on 13 December 2008 the defendant
informed him by letter that he was terminating his services and that he had to vacate the
premises by 15 December 2008. The plaintiff refused to do so because, according to
him, he had not been paid for his work. On the morning of 17 December 2008 a large
contingent of police officers accompanied by the defendant arrived at the premises and
accused him of illegally occupying it. They told him that they were there to assist the
defendant to evict him from the premises. Despite his protestations he was handcuffed,
bundled into a police van and taken to the police station.

[4] There he was charged with malicious injury to property relating to damage to the
defendant’s electrical distribution-box and water-pump. He appeared before a magistrate
the following day, and was remanded in custody. A few days later the defendant
accompanied by a police official, came to the prison and handed him a peace order
dated 18 December. At his next court appearance on 23 December the charges were
withdrawn and he was allowed to leave.

[5] The defendant’s evidence was that on 17 December, he received a report that his
hotel was on fire. He proceeded to the hotel and on arrival detected a smell of smoke.
His employee, Ms Stella Zwitwano Mathoma was standing at the distribution box. It

was open; the wires had been removed and burnt, and the water-pump was damaged. He
suspected that the plaintiff was responsible for the damage because apart from himself,
the plaintiff, with whom he was embroiled in a conflict, was the only person who had
access to the distribution box.

[6] In his statement to the police following upon his complaint, he stated that he
desired ‘further police investigation’ concerning the damage to his property. He also
stated that the plaintiff had fraudulently compiled invoices, stolen items and connected
the DSTV to his room without his permission. When asked whether he had requested
the police to arrest the plaintiff, he insisted that he had not; he only wanted their
assistance to evict him, because he was refusing to leave.  He also sought and obtained a
peace order from the magistrates’ court on 18 December which he believed the police
required to effect the eviction.

[7] Captain Tshivhuyahuvhi testified on behalf of the Minister. His evidence was that
while patrolling the area he received a complaint regarding malicious damage to the
defendant’s property. When he, together with nine other police officers, arrived at the
property the defendant was present. He showed them the damage to the wires in the
distribution box and to the water-pump. They then arrested the plaintiff and informed
him that the charge was malicious damage to property. When asked whether his purpose
was to evict the plaintiff, at the defendant’s behest, he denied this.

[8] The question before the court a quo was whether the defendant had initiated the
prosecution of the plaintiff maliciously. In upholding the plaintiff’s claim the court a quo
held, first, that the institution of criminal proceedings against the plaintiff by the
defendant was not based on any reasonable suspicion, but rather on a statement made by
his employee, Ms Mathoma. And since she was not called to testify, what she had said
to the police was inadmissible as evidence. Secondly, it accepted the plaintiff’s evidence
that his arrest had more to do with the defendant’s attempt to evict him rather than the

damage to his property. It reasoned that the defendant was aware that the plaintiff ‘. . .
did not damage his property, but wanted to use the State machinery in order to evict [the
plaintiff].’ It therefore concluded that the defendant had acted maliciously in initiating
the prosecution against the plaintiff. It is against these findings that the appeal is
directed.

[9] Malicious prosecution consists in the wrongful and intentional assault on the
dignity of a person encompassing his good name and privacy.1  To succeed with this
claim, a claimant must allege and prove that:
(i)
the defendant set the law in motion (instigated or instituted the proceedings);
(ii)
the defendant acted without reasonable and probable cause;
(iii)
the defendant acted with malice (or animo injuriandi); and that
(iv)
the prosecution failed.
These requirements were set out by this Court in Minister of Justice and Constitutional
Development & others v Moleko [2008] ZASCA 43; [2008] 3 All SA 47 (SCA) para 8
and later restated in Rudolph & others v Minister of Safety and Security & another
[2009] ZASCA 39; (5) SA 94 (SCA) para 16. See also Moaki v Reckitt and Colman
(Africa) Ltd & another 1968 (3) SA 98 (A).

[10] This Court in Beckenstrater v Rottcher and Theunissen 1955 (1) SA 129 (AD) at
136A-B set out the test for ‘absence of reasonable and probable cause’ as follows:
‘When it is alleged that a defendant had no reasonable cause for prosecuting, I understand this to mean
that he did not have such information as would lead a reasonable man to conclude that the plaintiff had
probably been guilty of the offence charged; if, despite his having such information, the defendant is
shown not to have believed in the plaintiff’s guilt, a subjective element comes into play and disproves
the existence, for the defendant, or reasonable and probable cause.’

[11] The test contains both a subjective and objective element, which means that there

1 Relyant Trading (Pty) Ltd v Shongwe & another [2006] ZASCA 162 [2007] 1 All SA 375 (SCA) para 5.

must be both actual belief on the part of the defendant and also that that belief is
reasonable in the circumstances (J Neethling, J M Potgieter and P J Visser Neethling’s
Law of Personality 2 ed (2005) at 176).

[12] The pleadings in this matter call for comment. The plaintiff’s particulars of claim
allege that the defendant maliciously set the law in motion by laying a false charge of
‘theft/fraud/trespassing . . .’ with the police, which gave rise to his arrest and detention.
There is no allegation of malicious injury to property, even though he was, despite the
defendant’s protestations, permitted to lead such evidence at the trial. However, the
issue was fully ventilated and we will decide the appeal on this basis.

[13] Another difficulty with the plaintiff’s cause of action was that there is no
allegation that the prosecution had failed, which rendered the pleading excipiable.2  But
it was clear from the evidence that the prosecution had terminated and the defendant’s
counsel was prepared to accept this.

[14] I therefore proceed to consider whether the evidence supports the allegation that
the defendant set the law in motion by falsely accusing the plaintiff of trespassing on his
property or of damaging the electrical wires in the distribution box and the water-pump.
Put another way, did he make statements to the police regarding these allegations
without an honest belief founded on reasonable grounds that they were true. This
analysis involves an enquiry into the defendant’s state of mind when he lodged his
complaint against the plaintiff.

[15] The evidence shows that there was a dispute between the parties, which led the
defendant to terminate the plaintiff’s service contract and to give him an eviction notice
to vacate the premises he was renting. The plaintiff refused to leave believing that he
was entitled to stay until the dispute regarding the amount that was owing to him was

settled. At the same time the defendant discovered that the electrical wires and a water-
pump on his property had been damaged. And after Ms Mathoma informed him that she
had seen the plaintiff near the electricity distribution box, he inferred that the plaintiff
was the person responsible for the damage.

[16] He testified that he went to the police because he believed that they would help
him with the eviction and he made a statement to the effect that he desired an
investigation regarding the damage to his property, for which he believed the plaintiff
was responsible. The police, who went to the property, saw the damage, and the
statement they subsequently obtained from Ms Mathoma confirmed this.

[17] The defendant was incorrect in his belief that the police could help him evict the
plaintiff from his property, even though he appeared to believe genuinely that the
plaintiff was unlawfully refusing to move from the property. This was a civil dispute for
which he should have gone to court to obtain an eviction order, rather than solicit the
assistance of the police in this cause.  But this does not mean that he had no honest
belief in the truth of the allegations he made against the plaintiff regarding the
trespassing and the damage to his property.

[18] Once he had placed the allegations before the police they ought to have
investigated the case properly before merely arresting the plaintiff as Captain
Tshivhuyahuvhi incorrectly believed was his duty. But the fact that the police acted
hastily and possibly unlawfully in effecting the plaintiff’s arrest does not carry with it the
implication that the defendant instituted the proceedings without honestly believing that
the allegations against the plaintiff were true.

[19] In the circumstances it cannot be said that the defendant had no reasonable and
probable cause for the prosecution of the plaintiff, much less that he was malicious in

2 Thompson & another v Minister of Police & another 1971 (1) SA 371 (E) at 375.

instituting the investigation against him. In his mind he honestly believed that he had a
case for trespassing against the plaintiff when the latter refused to vacate his premises
upon the termination of the lease. And regarding the case of malicious injury to property,
he believed that the plaintiff was responsible because, apart from him, the plaintiff was
the only person who had keys for, and access to, the distribution box. And the
information conveyed to him by Ms Mathoma, whilst only circumstantial, confirmed his
belief. In short, his belief was founded upon an honest, though probably mistaken, belief
that the plaintiff had damaged his property. The court a quo erred therefore in holding
that the plaintiff had proved that his prosecution was malicious.

[20] The next aspect to consider is the order that was made by this court on 10 March
2014 in terms of which the plaintiff’s erstwhile attorneys, Erwee Attorneys, were called
upon to show cause why they should not be ordered to pay de bonis propriis the wasted
costs occasioned by the postponement of the matter caused by their alleged failure to
comply with rule 16(4) of the Uniform Rules of Court. This rule provides that where an
attorney acting in any proceedings for a party ceases so to act, he shall forthwith deliver
notice thereof to such party, the registrar and all other parties. It now appears that the
plaintiff’s erstwhile attorneys served and filed with the registrar of Limpopo High Court,
Thohoyandou a notice of withdrawal as the plaintiff’s attorneys of record on 31 May
2013, presumably before the appeal was placed on roll on 10 March 2014. I am
therefore satisfied that the plaintiff’s erstwhile attorneys complied with Rule 16(4) of the
Uniform Rules of Court. But this finding does not absolve the plaintiff from liability for
the wasted costs for the postponement.

[21] Finally, the court wishes to extend its gratitude to Mr Nel and Mr Mofokeng from
Bloemfontein Justice Centre who appeared on behalf of the plaintiff following the
withdrawal of his erstwhile attorneys.

[22] In the result the following order is made:

The appeal is upheld with costs including the wasted costs occasioned by the
postponement of the appeal on 10 March 2014;
The order of the court a quo, as it relates to the defendant, is set aside and
replaced with the following order:
‘The plaintiff’s claim is dismissed with costs.’

_________________

D H Zondi

Judge of Appeal

Appearances
For the Appellant:
M S Sikhwari

Instructed by:

Mathobo Rambau & Sigogo Inc, Thohoyandou

c/o Matsepes Inc, Bloemfontein

For the Respondent:
P W Nel (with him L M A Mofokeng)

Instructed by:

Legal Aid SA, Bloemfontein Justice Centre

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
11 September 2015
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not form part of the
judgment of the Supreme Court of Appeal.

George Magwabeni v Christopher Liomba (198/2013) [2015] ZASCA 117 (11 September 2015)

The Supreme Court of Appeal (SCA) today delivered a judgment upholding the appeal by the appellant, Mr
George Magwabeni against the judgment of the Limpopo Local Division, Thohoyandou.

The issue before the SCA was whether the appellant acted maliciously when he laid a charge of malicious injury
to property against the respondent with the police.

The respondent’s claim arose in the following circumstances:

The respondent was employed by the appellant to provide certain electrical services at the appellant’s hotel. The
appellant allowed the respondent to stay at his premises in terms of the lease during the duration of the contract.
A dispute arose between the appellant and the respondent as a result of which the appellant terminated the
respondent’s services and the lease. He told the respondent to vacate the premises by 15 December 2008. The
respondent refused to do so because, according to him, he had not been paid for his work. On 17 December
2008 following a report that was made to him, the appellant laid a charge of malicious injury to property against
the respondent with the police. He also asked the police to assist him to evict the respondent from the premises.
The police arrested the respondent and charged him with malicious injury to property. The respondent was kept
in prison for a week after which the charges against him were withdrawn. Thereafter the respondent sued the
appellant for damages for malicious prosecution.

The high court in upholding the respondent’s claim for malicious prosecution held that the institution of
criminal proceedings against the respondent was not based on any reasonable suspicion, and had more to do
with the appellant’s attempt to evict him rather than the damage to his property.

On appeal the SCA set aside the high court’s judgment. The SCA held that the appellant had reasonable and
probable cause for the prosecution of the respondent as in his mind he honestly believed that he had a case for
trespassing against the respondent when the latter refused to vacate his premises upon the termination of the
lease. And in relation to the case of malicious injury to property the SCA held that the appellant believed that
the respondent was responsible for the damage. The SCA accordingly found that the appellant was not malicious
when he instituted criminal charges against the respondent.