THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable
Case No:  437/13

In the matter between:

THE MINISTER OF SAFETY
AND SECURITY N.O.

FIRST APPELLANT

THE DIRECTOR OF
PUBLIC PROSECUTIONS N.O.

SECOND APPELLANT

and

LEONARD CHARLES SCHUBACH

RESPONDENT

Neutral citation: Minister of Safety and Security NO v Schubach (437/13) [2014]
ZASCA 216 (1 December 2014)

Coram:
Navsa ADP, Shongwe, Zondi JJA and Schoeman and Meyer AJJA

Heard:
14 November 2014

Delivered: 1 December 2014

Summary: Malicious prosecution – what plaintiff must prove – plaintiff prosecuted
on a number of charges including those for which there was no basis –
assessment of damages – Prosecuting Authority – Powers and duties  –
s 42 of National Prosecuting Authority Act 32 of 1998 not applicable
where powers unlawfully exercised.

___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from: North Gauteng High Court, Pretoria (Kruger AJ sitting as court of
first instance):
1.
The appeal is upheld to the extent reflected in the orders that follow.
2.
The respondent is ordered to pay the appellants‟ costs of the appeal, including the
costs of two counsel.
3.
The order of the court below is set aside and replaced with the following order:
„(a)
The first and second defendants are ordered jointly and severally, the one paying
the other to be absolved, to pay the plaintiff a sum of R10 000.
(b)
The first and second defendants are ordered to pay interest at the rate of 15.5 per
cent a tempore morae from date of summons to date of payment.
(c)
The first and second defendants are ordered jointly and severally, the one
paying the other to be absolved, to pay the plaintiff‟s costs of suit.‟

JUDGMENT

Zondi JA (Navsa ADP, Shongwe JA and Schoeman and Meyer AJJA
concurring):
[1] This is an appeal against the judgment and order of the North Gauteng High
Court, Pretoria (Kruger AJ) upholding the respondent‟s claim arising from an alleged
malicious prosecution and awarding him damages. The appeal is with the leave of that
court.

[2] The respondent, Mr Leonard Charles Schubach, held the rank of Colonel in the
South African Police Service. He was the commanding officer of the Escort Unit of the
SAPS, which unit was responsible for escorting money for the South African Reserve

Bank to various destinations in the country. As a result of information received from an
informer various firearms and ammunition including weapons owned by the respondent,
his wife and third parties as well as flares or explosives used by members of the SAPS
for operational purposes were found in a walk-in safe at the offices of the Escort Unit on
14 March 2005 over which the respondent exercised control. The weapons, ammunition
and explosives were seized and the respondent was arrested for the unlawful possession
of firearms and ammunition despite his explanation that the firearms and ammunition
found were all licensed and owned by either him, his wife or third parties for whom they
were kept in safe custody and that the rest of the weapons and explosives were either
found or owned by the SAPS.

[3] Notwithstanding his explanation, the respondent was arrested for the unlawful
possession of all the firearms and ammunition and was detained at Pretoria Central
Police Station until 15 March 2005. On that date the respondent appeared in court where
he was released on R3000 bail. In due course the second appellant, the Director of
Public Prosecutions (DPP), charged the respondent with possession of unlicensed
firearms and ammunition, prohibited firearms and explosives in contravention of the
Firearms Control Act.1 The respondent made representations to the DPP in an attempt to
persuade the DPP not to prosecute him.

[4] In the representations the respondent contended that his possession of the
following set of firearms was not unlawful:
4.1
A firearm which had been issued to him by his employers, the South African
Police Service (SAPS), as a service firearm;
4.2
Firearms which were licensed to him and to his wife;
4.3
Firearms which were recovered by members of the police diving unit in
Roodeplaat Dam and kept in a police safe pending investigation;
4.4
Firearms which he had kept in the police safe on behalf of his friend, Mr van der

Merwe, who had bought them from Mr Storm; and
4.5
Weapons which he held in safe custody for his friend, Mr Kruger, who owned a
security company. These weapons were to be collected from him in due course by Mr
Kruger‟s business associate.

[5] The DPP considered the respondent‟s representations and on the basis of his
explanation decided not to prosecute him on charges relating to his own and wife‟s
firearms. The DPP added a charge against the respondent relating to the explosives that
were also found in the safe. At the same time the DPP instructed the Senior Public
Prosecutor not to charge the respondent for firearms in respect of which he and his wife
held licences and to forward the explosives to the forensic laboratory for analysis before
the commencement of the trial. But the DPP‟s instruction was ignored and the
respondent was nevertheless prosecuted also in respect of the firearms owned by him or
his wife that were licensed. In due course the respondent was arraigned at the Pretoria
Regional Court, but was acquitted of all the charges.

[6] The respondent instituted action in the North Gauteng High Court against the
appellants for damages sustained as a result of what was alleged to be an unlawful arrest
and malicious prosecution. The basis for his claim against the first appellant, the
Minister of Safety and Security (the Minister), was that the arresting police officers
wrongfully and maliciously laid false charges against him, first by providing false
information that he was in unlawful possession of prohibited firearms, ammunition and
explosives; secondly, by falsely representing that he was not authorised to be in
possession of the firearms, ammunition and explosives; and thirdly, by falsely
representing that he was unlawfully in possession of his own and service firearms.

[7] The allegations underpinning the damages claim against the DPP are that „[d]ie
lede in diens van die Tweede Verweerder het geen gronde gehad om te glo dat die

1 Firearms Control Act 60 of 2000.

besonderhede verskaf deur die Eerste Verweerder die waarheid is nie‟. When the trial
commenced in the court below the respondent abandoned his claim for damages for
unlawful arrest and detention against the Minister, but persisted with his claim against
the DPP and the Minister in respect of the malicious prosecution.

[8] Kruger AJ who heard the matter found that the prosecution of the respondent on
the charges relating to the possession of explosives, his service pistol and the firearms
and ammunition owned by him or his wife was not based on reasonable and probable
cause and was malicious.

[9] In relation to the balance of the charges, namely those relating to the firearms
which the respondent kept for safe keeping on behalf of Mr van der Merwe and Mr
Kruger, and those which were recovered from a nearby dam, Kruger AJ found that there
was a reasonable and probable cause to prosecute him on those charges and that the
prosecution was not malicious.

[10] With regard to the amount of damages, Kruger AJ awarded the respondent
R120 000 for general damages and R93 000 for the legal costs he had incurred in
defending the legal proceedings terminated in his favour. He ordered the appellants
jointly and severally, the one paying the other to be absolved, to pay the respondent for
the damages and costs of suit. The appellants appeal against the findings and the order
of Kruger AJ as set out above.

[11]  The requirements for a successful claim for malicious prosecution as set out by
this Court in Minister for Justice and Constitutional Development v Moleko [2008] 3
All SA 47 (SCA) para 8 were restated in Rudolph & others v Minister of Safety and
Security & another 2009 (5) SA 94 (SCA) para 16:
„(a)
that the defendants set the law in motion (instigated or instituted the proceedings);
(b)
that the defendants acted without reasonable and probable cause;

(c)
that the defendants acted with malice (or animo injuriandi); and
(d)
that the prosecution has failed.‟
See also Moaki v Reckitt & Colman (Africa) Ltd 1968 (3) SA 98 (A); Relyant Trading
(Pty) Ltd v Shongwe [2007] 1 All SA 375 (SCA).

[12] It is not in dispute in this matter that the DPP instituted the criminal proceedings
against the respondent and that those proceedings were terminated in his favour
(Thompson v Minister of Police 1971 (1) SA 371 (E)). What the DPP challenged is the
court below‟s finding that its decision to prosecute the respondent on some of the
charges was without reasonable cause and malicious. Counsel for the DPP submitted
that the court below erred in its finding that the DPP‟s decision to prosecute the
respondent on those charges was malicious, but not malicious on others. He argued that,
as the decision to prosecute constitutes a single intent and a single act, its
reasonableness had to be evaluated in its entirety, and it was thus wrong to conduct such
an evaluation separately since it is inconceivable that the prosecutor would have a
malicious intent for one set of charges and not for the other; he either has malicious
intent (animo injuriandi) or not.

[13] I disagree with the DPP‟s contention. The set of charges are discrete and have to
be considered separately in determining the absence of reasonable and probable cause.
Considerations pertaining to the one set of charges cannot be transposed onto the other.
In other words, the fact that there was a reasonable and probable cause to prosecute on
one set of charges has no effect on the outcome of the enquiry in relation to the other set
of charges. This is so, because the question whether reasonable grounds for the
prosecution exist is answered only by reference to the facts of each case.

[14] This Court in Beckenstrater v Rottcher and Theunissen 1955 (1) SA 129 (A) 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, of reasonable and probable cause.‟

[15]    The test contains both a subjective and objective element which means that
there must be both actual belief on the part of the prosecutor and that that belief must be
reasonable in the circumstances (J Neethling, JM Potgieter & PJ Visser Neethling’s Law
of Personality (2 ed, 2005) at 176).

[16] It is common cause that there was no probable cause to prosecute the respondent
on the charges relating to the firearms and ammunition for which he and his wife had
licences because the DPP had given instructions that those charges had to be withdrawn.
The prosecution on these charges was malicious.

[17] With regard to the charges relating to explosives and a service pistol, Ms
Meintjies, who testified for the DPP, explained in relation to the former that „daardie
klagte was aanvanklik nie gestel nie, maar by heroorweging het Mnre Mashile and
Ngobeni besluit maar daar moet so „n klagte wees en ek kon nie daarmee fout vind nie‟,
and secondly she reasoned that the fact that the respondent had these items in the same
safe as other items was sufficient for her to conclude that there was unlawful possession.
It is difficult to understand her first explanation having regard to the fact that she had, on
2 October 2006, instructed the Senior Public Prosecutor to send the explosives „to
forensic science laboratory for forensic report before the commencement of the trial‟ and
her evidence was that she had no knowledge of what happened thereafter because she
did not follow it up. Moreover Mr Hartell‟s statement (the arresting officer), which I
assume formed part of the material placed before the DPP on the basis of which a
decision to prosecute was taken, makes no reference to the explosives. There is a
reference to explosives in a statement in the docket, but it is not clear if it had anything

to do with his decision to arrest the respondent. All that he said in his statement is that
he arrested the respondent „for being unlawfully in possession of firearms and
ammunition‟. Neither of them testified in the court below.

[18] Ms Meintjies‟ latter explanation goes to show that there was no reasonable and
probable cause to prosecute the respondent, bearing in mind that the explosives and the
service pistol were found in a police safe and are used by the police. In these
circumstances there can be no basis for the contention that the DPP‟s decision to
prosecute the respondent on those charges was based on reasonable and probable cause.
Also the court below‟s conclusion that the respondent‟s prosecution on those charges
was malicious cannot be faulted.  The ineluctable inference to be drawn is that those
responsible for initiating the prosecution against the respondent on the charges under
consideration were aware of what they were doing in initiating the prosecution and
foresaw the possibility that they were acting wrongfully, but they nevertheless acted,
reckless as to the consequences of their conduct (dolus eventualis).  See:  Rudolph &
others v Minister of Safety and Security & another 2009 (5) SA 94 (SCA) para 18.

[19] In its heads of argument the DPP raised, and relied on, s 42 of the National
Prosecuting Authority Act 32 of 1998 (the Act) as the basis for its denial that its
prosecution of the respondent was malicious. This section provides that „[n]o person
shall be liable in respect of anything done in good faith‟ under the Act. The DPP‟s
argument therefore was that, since the Senior Public Prosecutor acted in good faith in
prosecuting the respondent, he cannot be liable for the damages suffered by the
respondent. It was contended that this section creates a legal immunity in favour of a
person who in good faith exercises a power conferred under the Act even in cases where
that person is negligent. This argument was not raised in the appellant‟s pleadings, but
was only raised when the application for leave to appeal was made. It was not persisted
with in oral argument before us.

[20] In my view, s 42 does not protect the officials of the National Prosecuting
Authority who in the performance of their duties under the Act exercise act maliciously
from civil liability. The s 42 defence relates to a bona fide mistake. In the instant matter
the DPP‟s decision to prosecute the respondent on some of the charges was malicious,
which conduct by its very nature negates bona fide. The DPP‟s s 42 defence must
therefore fail. Furthermore, it has not been established that the prosecutors involved in
this matter have taken all reasonable precautions to avoid or minimize injury to the
appellant and the DPP‟s s 42 defence must therefore fail. In The Minister of Justice and
Constitutional Development v X (196/13) [2014] SASCA 129 (23 September 2014) para
52, Fourie AJA said the following:
„Returning to s 42 of the NPA Act and in view of the principles outlined above, it has to be borne in
mind that, in terms of s 20 of the NPA Act, the prosecuting authority and accordingly also the
prosecutor involved in this matter are clothed with the statutory power to institute and conduct
criminal proceedings and matters incidental thereto on behalf of the State. Where s 42 refers to
“anything done . . . under this Act”, it by necessary implication refers to the powers conferred in terms
of s 20 of the NPA Act. A prosecutor exercising this power and wishing to avail him or herself of the
immunity afforded by s 42 is required to show that he or she acted within the authority conferred by
the power in question, which, in turn, requires him or her to have taken all reasonable precautions to
avoid or minimize injury to others. A failure to do so would render his or her conduct unlawful and the
reliance on s 42 of the NPA Act would therefore fail.‟

[21] With regard to damages, there is no doubt that the respondent was entitled to
damages for both injury to personality and pecuniary loss suffered (Law v Kin [1966] 3
All SA 84 (W); 1966 (3) SA 480 (W) at 483), but the question is whether the amount of
damages awarded to him was justified. The former are awarded as a solatium under the
action injuriarum, while the latter constitute compensation under the actio legis aquilia.

[22] As regards the quantum of damages the court below awarded damages in the
amount of R120 000 for injury to the respondent‟s personality rights and R93 000 for
the legal costs he incurred in defending the criminal proceedings in the regional court

and seeking the setting aside in the high court of the first appellant‟s decision to suspend
him without pay. Counsel for the DPP contended that the damages awarded were
excessive having regard to the fact that the respondent abandoned his claim for damages
arising out of unlawful arrest and detention, that his criminal trial in any event proceeded
in respect of the charges for which there was reasonable and probable cause to
prosecute and furthermore that there was no evidence to support his claim for R93 000. I
agree with the DPP‟s counsel. An amount of R93 000 for legal costs should not have
been awarded in the absence of proof that those costs were in fact incurred. The
evidence adduced by the respondent in support of that claim is very vague, flimsy and
devoid of substance. Although the respondent claimed to have spent R93 000 on legal
costs he admitted that „ek het geen bewyse daarvoor nie‟.  In any event it is unknown
how much of the legal costs he allegedly expended related to that part of the case in
respect of which there was probable cause to prosecute and in relation to representation
connected to his challenge in the high court against his suspension from his duties as a
police officer.

[23] As regards the award of R120 000 the court below, in my view, erred in failing in
its assessment of damages to take into account the fact that the respondent‟s prosecution
on charges relating to the other weapons was based on reasonable and probable cause
and not malicious. In other words, the infringement of the respondent‟s rights was not
wrongful as his prosecution on those charges was based on reasonable grounds. The
appellant would in any event have been arrested in respect of the charges for which
there was probable cause, spent time in custody and faced the prosecution.    These facts
were ignored by the court below.  The damages were thus assessed at an amount too
generous.  A reasonable amount in my view would be an amount of R10 000.

[24] In the result I make the following order:
1.
The appeal is upheld to the extent reflected in the orders that follow.
2.
The respondent is ordered to pay the appellants‟ costs of the appeal, including the

costs of two counsel.
3.
The order of the court below is set aside and replaced with the following order:
„(a)
The first and second defendants are ordered jointly and severally, the one paying
the other to be absolved, to pay the plaintiff a sum of R10 000.
(b)
The first and second defendants are ordered to pay interest at the rate of 15.5 per
cent a tempore morae from date of summons to date of payment.
(c)
The first and second defendants are ordered jointly and severally, the one paying
the other to be absolved, to pay the plaintiff‟s costs of suit.‟

______________

D H Zondi

Judge of Appeal

Appearances
For the Appellants:
E M Coetzee SC (with him Marisa Barnard)

Instructed by:

State Attorney, Pretoria

State Attorney, Bloemfontein

For the Respondent:
G C Muller SC

Instructed by:

Du Toit Attorneys, c/o Opperman Attorneys, Pretoria

Honey & Partners, Bloemfontein

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:
1 December 2014
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.

The Minister of Safety and Security v Schubach (437/13) [2014] ZASCA 216 (1 December 2014)

The Supreme Court of Appeal (SCA) today delivered a judgment partially upholding the appeal by the
appellants, the Minister of Safety and Security and the Director of Public Prosecutions against the judgment of
the North Gauteng High Court, Pretoria.

The issues before the SCA were whether the respondent’s prosecution by the second appellant was malicious
and if so, whether the amount of damages awarded to the respondent was correctly assessed.

The respondent’s claim arose in the following circumstances:

The respondent, a former colonel in the South African Police, was on 14 March 2005 arrested for being in
possession of unlicensed firearms, ammunition and explosives. Some of those firearms belonged to him and his
wife, some were kept by him for investigation and others he kept for safekeeping on behalf of his friends. He
was charged and in due course appeared in the Regional Court, Pretoria, but he was acquitted of all of the
charges. Thereafter the respondent sued the Minister of Safety and Security and the Director of Public
Prosecutions contending that his arrest and detention by the police officers was unlawful and that his
prosecution was malicious. The high court found that the Director of Public Prosecutions should not have
prosecuted the respondent on charges relating to the firearms and ammunition for which he and his wife had
licences and accordingly found that the Director of Public Prosecutions had failed to show that its prosecution of
the respondent on those charges was based on reasonable and probable cause. It found, however, that there was
a reasonable and probable cause to prosecute the respondent on the other charges and that his prosecution on
those charges were thus not malicious.

The SCA was in agreement that the Director of Public Prosecutions’ decision to prosecute the respondent on
charges relating to the firearms and ammunition for which he and his wife had licences was malicious. The SCA
held, however, that the high court had erred in awarding him damages for the legal costs he alleged he had
incurred in defending the criminal proceedings which were terminated in his favour as there was no proof that
he had in fact incurred those costs. With regard to the amount awarded to the respondent for general damages
the SCA held that the high court had incorrectly assessed the damages suffered by the respondent by ignoring
the fact that his prosecution on the other charges was reasonable and therefore not malicious. The SCA
accordingly reduced the amount of damages.