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PER: Potchefstroomse Elektroniese Regsblad

On-line version ISSN 1727-3781

PER vol.16 n.1 Potchefstroom Apr. 2013




Reasonable and probable cause in the law of malicious prosecution: a review of South African and Commonwealth decisions



C Okpaluba

LLB, LLM (London), PhD (West Indies). Adjunct Professor of Law, Nelson Mandela School of Law, University of Fort Hare. E-Mail:




The requirement that the plaintiff in an action for malicious prosecution must prove a lack of reasonable and probable cause to initiate, instigate or continue the prosecution on the part of the instigator or prosecutor is one of the four elements of that cause of action. It is a vital link between the lawfulness of the prosecution and the state of mind of the defendant. Again, whether a prosecution is wrongful or lawful depends on whether there was a reasonable and probable cause coupled with the animus iniuriandi of the defendant in instigating, initiating or continuing it. It is not whether the prosecutor possessed evidence to secure a conviction since that is for the trial court to decide after the conclusion of evidence; but, the honest belief by the prosecutor that, having carefully collected and objectively assessed the available information, the plaintiff was probably guilty of the crime. In coming to that decision the prosecutor must have grappled with both the subjective and objective elements in the exercise of that discretion. The Australian High Court judgment in A v New South Wales 2007 230 CLR 500 (HCA) has brought clarity to this aspect of the problem. However, as this paper contends, the ten-point guidelines enunciated by that court in that case and designed to provide the courts with a seemingly less complicated formula for determining if the prosecutor lacked reasonable and probable cause do not appear to have provided the panacea to the problem. Meanwhile, the distinct nature of the requirement of reasonable and probable cause is made clearer when it is compared with reasonable ground to arrest in the case of wrongful arrest and the tort of abuse of process. Also problematic and equally challenging is identifying where a reasonable and probable cause inquiry stops and malice begins. This is brought out in the attempt by the Supreme Court of Canada to unravel the tension between the proof of the existence of malice and reasonable and probable cause in the law of malicious prosecution in Miazga v Kvello Estate 2009 3 SCR 339 (SCC). The extent to which the guidelines laid down in these recent cases would have resolved the confusion in this field of the law is yet to be realised.

Keywords: Malicious prosecution; instigation or continuation of prosecution; absence of reasonable and probable cause; whether distinguishable from reasonable ground to suspect; arrest without warrant; whether amounts to abuse of process; proof of animus iniuriandi; whether dependent upon proof of reasonable and probable cause; relevance of objective sufficiency of information available to prosecutor.



1 Introduction

It is not every prosecution that is concluded in favour of the accused person that necessarily leads to a successful claim for malicious prosecution. So much depends on the absence of a reasonable and probable cause, and the animus iniuriandi of the defendant in instigating, initiating or continuing the prosecution. It is widely accepted that reasonable and probable cause means an honest belief founded on reasonable ground(s) that the institution of proceedings is justified.1 It is about the honest belief of the defendant that the facts available at the time constituted an offence and that a reasonable person could have concluded that the plaintiff was guilty of such an offence. Ultimately, it is for the trial court to decide at the conclusion of the evidence whether or not there is evidence upon which the accused might reasonably be convicted.2

In Hicks v Faulkner3 Hawkins J defined reasonable and probable cause as "an honest belief in the guilt of the accused based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances, which assuming them to be true, would reasonably lead to any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed".4 It was stated that the test contains a subjective as well as an objective element. There must be both actual belief on the part of the prosecutor and the belief must be reasonable in the circumstances.

The necessary deduction, which the courts have for centuries made from that definition, is that there has to be a finding as to the subjective state of mind of the prosecutor as well as an objective consideration of the adequacy of the evidence available to him or her. This is tantamount to a subjectively honest belief founded on objectively reasonable grounds that the institution of proceedings was justified.5 A combination of both the subjective and objective tests means that the defendant must have subjectively had an honest belief in the guilt of the plaintiff and such belief must also have been objectively reasonable.6 As explained by Malan AJA in Relyant Trading, such a defendant will not be liable if he/she held a genuine belief in the plaintiff's guilt founded on reasonable grounds. In effect, where reasonable and probable cause for the arrest or prosecution exists, the conduct of the defendant instigating it is not wrongful.7 For Malan AJA, the requirement of reasonable and probable cause "is a sensible one" since "it is of importance to the community that persons who have reasonable and probable cause for a prosecution should not be deterred from setting the criminal law in motion against those whom they believe to have committed offences, even if in so doing they are actuated by indirect and improper motives".8

The requirement of reasonable and probable cause in proving malicious prosecution tends sometimes to be confused with the requirement of reasonable ground to suspect that an offence has been committed in order for a peace officer to arrest any person without a warrant.9 Further, although reasonable and probable cause and malice are distinct grounds for the action for malicious prosecution, they are often difficult to distinguish one from the other as they tend to overlap. For, it is improbable to find that a prosecutor acted maliciously where there is reasonable and probable cause to prosecute or to find that the defendant who was motivated by malice had reasonable and probable cause to prosecute. The finding that there was reasonable and probable cause to prosecute invariably neutralises the existence of malice in the circumstances as the latter is contingent on the former. In any event, the two requirements appear inseparable in most instances of malicious prosecution.

In order to succeed in an action for malicious prosecution, the plaintiff must prove all four requirements; namely, that the prosecution was instigated by the defendant; it was concluded in favour of the plaintiff; there was no reasonable and probable cause for the prosecution; and that the prosecution was actuated by malice.10 Although the first two requirements may appear to be straight-forward, they are no less difficult to prove than the last two. The burden of proving that there is reasonable and probable cause for prosecuting a person is as challenging as proving that the prosecutor was motivated by malice. That this is the case in the South African law of malicious prosecution is illustrated by the judgments of the Supreme Court of Appeal in Relyant Trading; Minister of Justice and Constitutional Development v Moleko11 and Kgomo J in Bayett v Bennett.12 Recent Australian and English13 cases similarly bear witness to this proposition. While the present investigation concentrates on reasonable and probable cause in an action for malicious prosecution, in appropriate instances references may occasionally be made to malice. An important adjunct to the subject matter is the concept of the objective sufficiency of the information available to the prosecutor, which brings to the discussion the leading Australian case of A v New South Wales,14 where a ten-point guideline was laid down.

Equally relevant to this discussion are the contributions of the Supreme Court of Canada grappling with the modern concept of malicious prosecution since Nelles v Ontario15 through Proulx v Quebec (Attorney General)16 down to Miazga v Kvello Estate-17 - the three Supreme Court judgments around which the modern law of malicious prosecution in Canada could easily be constructed.


2 Distinguishing the test for reasonable ground to suspect

The law of wrongful arrest and malicious prosecution are closely linked, but the principles governing each cause of action diverge at the point when the arrest and detention translate into prosecution. But because the requirement of reasonableness is common to both causes; reasonable ground to suspect18 or, as it is described in some jurisdictions, "reasonable grounds";19 "reasonable cause";20 or "good cause to suspect";21 on the one hand and reasonable and probable cause to prosecute on the other, there is the tendency to conflate the different tests. However, Lord Devlin laid down the test of reasonable suspicion as:

arising at or near the starting-point of an investigation of which the obtaining of prima facie proof is the end.22 When such proof has been obtained, the police case is complete; it is ready for trial and passes on to its next stage. It is indeed desirable as a general rule that an arrest should not be made until the case is complete. But if arrest before that were forbidden, it could seriously hamper the police. To give power to arrest on reasonable suspicion does not mean that it is always or even ordinarily to be exercised. It means that there is an executive discretion. In the exercise of it many factors have to be considered besides the strength of the case. The possibility of escape, the prevention of further crime and the obstruction of police inquiries are examples of those factors with which all judges who have had to grant or refuse bail are familiar.23

Building on the foregoing, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ spoke in George v Rocket24 of the required state of mind, contrasting suspicion with a belief or a reason to believe, and held that suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: "I suspect but I cannot prove". The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In their opinion, it is a positive finding of actual apprehension or mistrust. The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.25

The judgment of Malan AJA in Relyant Trading is also instructive in this regard. The Acting Justice of Appeal began by casting wrongful arrest in its well-known mode as consisting in the wrongful deprivation of a person's liberty. Again, liability for wrongful arrest is strict, neither fault nor awareness of the wrongfulness of the arrestor's conduct being required.26 Further, an arrest is malicious where the defendant makes improper use of the legal process to deprive the plaintiff of his liberty.27 However, in both wrongful and malicious arrest not only a person's liberty but also other aspects of his or her personality may be involved, particularly dignity.28 It was held in Newman v Prinsloo29 that in wrongful arrest the act of restraining the plaintiff's freedom is that of the defendant or his agent for whose action he is vicariously liable, whereas in malicious arrest the interposition of a judicial act between the act of the defendant and apprehension of the plaintiff makes the restraint on the plaintiff's freedom no longer the act of the defendant but the act of the law.30 On the other hand, Malan AJA held that malicious prosecution consists in the wrongful and intentional assault on the dignity of a person comprehending also his or her good name and privacy.31 The requirements are that the arrest or prosecution be instigated without reasonable and probable cause and with "malice" or animo iniuriarum.32 Although the expression "malice" is used, it means, in the context of the actio iniuriarum, animus iniurtandi.33 Quoting per Wessels JA in Moaki v Reckitt and Colman (Africa) Ltd:34

Where relief is claimed by this actio the plaintiff must allege and prove that the defendant intended to injure (either dolus directus indirectus). Save to the extent that it might afford evidence of the defendant's true intention or might possibly be taken into account in fixing the quantum of damages, the motive of the defendant is not of any legal relevance.35

Another important distinguishing factor between reasonable suspicion to arrest and the requirement of reasonable and probable cause in the law of malicious prosecution is the factor of proof. In malicious prosecution the burden of proof is on the plaintiff, who must show that all four elements developed by the courts over the years are present. In an action for wrongful arrest, on the other hand, the burden is always on the defendant to justify the arrest and detention36 and he/she must prove in defence that he/she had reasonable suspicion as grounds to arrest as one of four statutory jurisdictional facts in terms of section 40(1)(b) of the Criminal Procedure Act 1977.37 Restated by the Supreme Court of Appeal in Minister of Safety and Security v Sekhoto,38 the four jurisdictional facts which the defendant must plead are that: (a) the arrestor must be a peace officer; (b) that he or she entertained a suspicion; (c) that the suspicion was that the arrestee had committed a Schedule 1 offence;39 and (d) that the suspicion was based on reasonable grounds. It was further clarified in Sekhoto that once these jurisdictional facts are met, it was not necessary to add a gloss to the section by requiring the arresting officer to consider the Bill of Rights before arresting the suspect.40 There was nothing in section 40(1)(b) that could lead to the conclusion that its words contain a hidden fifth jurisdictional fact. If it be recalled that the purpose of an arrest is to enable the arrestor to bring the suspect to justice, it follows that the discretion to arrest without a warrant does not impose upon the officer the burden of digging into the Bill of Rights to satisfy himself/herself that no aspect of it has been violated before exercising that discretion. Once the suspect has been brought to court, the authority to detain inherent in the exercise of the power to arrest expires and the authority to detain the suspect shifts to the court.41

The test for determining the existence of a reasonable suspicion is an objective one, that is, the grounds of suspicion must be those which would induce a reasonable person to have the suspicion.42 It is, therefore, not whether a police officer believes that he has reason to suspect, "but whether on an objective approach, he in fact has reasonable grounds for his suspicion".43 That is, "[a] reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest".44 What is required is that the police officer must take account of all the information available to him/her at the time and base the decision to arrest on such information.45 What constitutes reasonable grounds for suspicion had to be judged against what was known or reasonably capable of being known at the relevant time.46 A belief or suspicion was capable of being reasonable even though founded on a mistake of law. The officer in question need not be convinced that the information in his/her possession was sufficient to commit for trial or convict, or to establish a prima facte case47 for conviction, before making the arrest.48

As Jones J held in Mabona v Minister of Law and Order,49 the person claiming malicious arrest or malicious prosecution must not only allege but must go further to prove that the defendant acted maliciously and without probable cause.50 Thus, in Rudolph v Minister of Safety and Security51 the court had to resolve the tension between the reasonable justifiability of the arrest and detention in this case and the subjective feeling of the police officer faced with the decision whether or not to arrest and detain. Given the jurisprudence embedded in the case law, the question which the court had to address was whether the reasons put forward for the arrest and detention of the plaintiff satisfied the requirement of a discernible objective standard, which is what distinguishes a lawful arrest and detention from an arbitrary and unconstitutional one.52 The Supreme Court of Appeal found that the trial judge was in error to have concluded that the arresting officer was justified in effecting the arrest without warrant, since no Schedule I offence was committed in the circumstances of the case. And since no offence of sedition had been committed, it could hardly be said that the arresting officer reasonably suspected the first appellant of committing sedition.53 It was further held that by knowing that no offence of illegal gathe