THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 194/2023

In the matter between:

NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS APPELLANT
and

SIJOYI ROBERT MDHLOVU RESPONDENT

Neutral citation: The National Director of Public Prosecutions v Sijoyi Robert
Mdhlovu (Case no 194/2023) [2022] ZASCA 85 (03 June 2024)
Coram: HUGHES, MATOJANE and GOOSEN JJA and DAWOOD and
BAARTMAN AJJA
Heard: 3 May 2024
Delivered: 3 June 2024

This judgment was handed down electronically by circulation to the parties’ legal
representatives via e-mail, publication on the Supreme Court of Appeal website
and released to SAFLII. The date and time for hand-down is deemed to be 11h00
on 03 June 2024.

2

Summary: Application for leave to appeal – referral for oral evidence in terms
of s 17(2)(d) of the Superior Courts Act 10 of 2013 – whether reasonable prospect
of success and compelling reasons for appeal established. Actio Inuiriarum –
malicious prosecution – whether the absence of reasonable cause to prosecute and
intention to cause injury or harm established.

ORDER

On appeal from: Mpumalanga Division of the High Court, Mbombela
(Sieberhagen AJ, sitting as a court of first instance):
(a) The application for leave to appeal is granted with costs.
(b) The appeal is upheld.
(c) The order of the high court is set aside and replaced with the following:
‘The plaintiff’s claim is dismissed with costs’.
(d) The respondent is ordered to pay the costs of the appeal.

JUDGMENT

Matojane JA (Hughes and Goosen JJA and Dawood and Baartman AJJA
concurring):

Introduction
[1] This is an application by the National Director of Public Prosecutions
(appellant) for leave to appeal against the whole of the judgment and order of the
Mpumalanga Division of the High Court, Mbombela (per Sieberhagen AJ) (the
high court) handed down on 24 May 2022, in which the appellant was held liable
to Mr Sijoyi Robert Mdhlovu (respondent) for malicious prosecution. The
National Director of Public Prosecutions (the NDPP) is not only seeking leave to

3

appeal but also requests that, if granted, this Court consider and make a decision
on the merits of the appeal.

[2] In accordance with s 17(2)(d)1 of the Superior Courts Act 10 of 2013, this
Court directed that the application be referred for oral argument. Furthermore,
both parties involved in the matter were instructed to be prepared to argue the
substantive issues of the case should the court require them to do so during the
hearing.

[3] On 26 April 2024, the Registrar sent an e -mail to the respondent’s legal
representatives, Meintjies and Khoza Inc. (Meintjies). The purpose of the
communication was to notify them that the respondent had not filed heads of
argument and the required practice note for the hearing scheduled for 3 May 2024.

[4] On 30 April 2024, the respondent’s attorneys sent a letter to the Registrar
requesting a postponement of the hearing for the application for leave to appeal.
This marked the initial instance of such a request being made. The Registrar
forwarded Meintjies’ letter to the appellant’s legal representatives, who
responded by expressing their opposition to any post ponement. Despite the
respondent’s lawyers being provided with the Court order and a notice of the
hearing date, the respondent did not bring a substantiative application for a
postponement and failed to attend Court on the day of the scheduled hearing.
Accordingly, the hearing proceeded without the respondent’s presence.

Background


1 Section 17(2)(d) of the Superior Courts Act provides:
. . .
‘(d) If leave to appeal in terms of paragraph (a) is refused, it may be granted by the Supreme Court of Appeal on
application filed with the registrar of that court within one month after such refusal, or such longer period as may
on good cause be allowed, and the Supreme Court of Appeal may vary any order as to costs made by the judge or
judges concerned in refusing leave.’

4

[5] On 12 June 2015, the respondent decided to withdraw charges against
accused individuals in cases under investigation by Sergeant Nkambule (the
investigating officer). The charges included armed robbery, murder, and illega l
possession of a firearm. The investigating officer brought witnesses to the
respondent’s office for consultations in preparation for the trial that was due to
start. The respondent informed the investigating officer that he would be
withdrawing the charges due to a discrepancy in the ballistics report. He told him
that the report showed that the firearm analysed by forensics experts had a serial
number, whereas the firearm found in the possession of the accused did not have
one.

[6] The investigating officer indicated to the respondent that this issue could
have been raised earlier, as the respondent had the dockets with him all along. He
assured the respondent that the firearm sent for ballistics examination was the
same one found in the accused’s possession and suggested calling an expert to
confirm this.

[7] The respondent agreed to postpone the matter to allow the investigating
officer to obtain a supplementary affidavit from the ballistics expert to remedy
the discrepancy. However, later that day, the respon dent withdrew the charges
without informing the investigating officer. In his testimony, the respondent
stated that he informed the investigating officer that the cases were not trial-ready
due to issues with the chain of evidence concerning the firearms identification in
the four cases. He claimed that the forensic investigation department had failed to
properly identify the firearm, leading him to withdraw the charges in court. He
stated that he was not aware of the practice in Mbombela, which obliges
prosecutors to obtain authorisation of their seniors before withdrawing charges.

5

[8] The investigating officer subsequently lodged a complaint against the
respondent with his superiors at the South African Police Service (SAPS). The
complaint alleged that the respondent breached an earlier agreement to postpone
the matter, allowing formal chain evidence relating to the firearm to be obtained.
The complaint and associated documents were forwarded to Advocate
Moonsamy, the Deputy Director of Public Prosecutions in Mpumalanga (the
DDPP), for further review.

[9] After an investigation, which included consultation with five further legal
professionals, the DDPP took the decision to prosecute the respondent on two
counts of fraud and, as an alternative, defeating the ends of justice. This was
pursuant to the Director of Public Prosecutions (the DPP) for the Gauteng
Division, Pretoria, confirming in a memorandum dated 28 December 2015 that
there was a prima facie case against the respondent on those charges.

[10] In August 2017, the respondent was charged with two counts of fraud and,
in the alternative, d efeating the ends of justice. The charges stemmed from
accusations that he had deliberately provided false information to the Department
of Justice and Constitutional Development or the investigating officer.
Specifically, it was alleged that the respondent had falsely stated that an accused
person had no link to the charges brought against them in court and that the
complainant was unable to identify the property that had been stolen in relation
to those charges.

[11] Furthermore, it was alleged that the respondent had falsely claimed that an
accused, Mr Nonyane, was only implicated in the charges based on the testimony
of his co -accused. However, the respondent was aware that Mr Nonyane had
admitted to committing the offence for which he was charged and that some of

6

the stolen property had been found in his possession. Additionally, the
complainants positively identified the recovered property as belonging to them.

[12] The respondent pleaded not guilty, and the trial commenced in the
Mbombela Regional Court on 29 August 2017. On 30 August 2017, at the close
of the State’s case, the respondent was discharged on all counts in terms of s 174
of the Criminal Procedure Act 51 of 1977 (the CPA).2

[13] Aggrieved by his prosecution, on 15 March 2018, the respondent issued a
summons against the NDPP for malicious prosecution in the high court. He
contended that the prosecution was motivated by malice, initiated without
reasonable and probable cause, and ultimately failed. The appellant opposed the
claim, maintaining that the prosecution was legally justified. The high court found
against the NDPP.

Leave to appeal
[14] On 20 July 2022, the appellant filed a notice of application for leave to
appeal in the high court , which was accompanied by an applicat ion for
condonation for the late filing of the said notice. The court refused to entertain the
application for condonation, stating that it was an issue that had to be dealt with
by the appeal court. In refusing to entertain the application for condonation, the
court misconstrued its role in terms of Uniform Rule 49(1)(b), which provides for
the process to be followed in seeking leave to appeal when it was not originally
requested at the time of the initial judgment or order.




2 Section 174 of the Criminal Procedure Act 51 of 1977 provides:
‘Accused may be discharged at close of case for prosecution
If, at the close of the case for the prosecution at any trial, the court is of the opinion that there is no evidence that
the accused committed the offence referred to in the charge or any offence of which he may be convicted on the
charge, it may return a verdict of not guilty.’

7

[15] The condonation application has become moot since the high court
explicitly granted it by considering the merits of the leave to appeal application
and dismissing it. The matter before us is an order denying leave to appeal. The
application was submitted within the prescribed time limits and was referred for
oral argument. The evidence suggests that the appeal has a reasonable chance of
success, and there are compelling reasons to grant leave to appeal.

The high court’s findings
[16] After a separation of issues in terms of Uniform Rule 33(4),3 the high court
dealt only with the merits and not the quantum of the respondent’s claim. Two
issues were identified: (a) whether the prosecution was initiated without
reasonable and probable cause, and (b) whether it was actuated by ‘malice’ in the
sense of animus iniuriandi on the part of the appellant.

[17] The high court found that both issues were in favour of the respondent. It
held that the DDPP had acted with animus iniuriandi in that she subjectively
foresaw the possibility that she was acting wrongfully in prosecuting the
respondent but nevertheless continued reckle ssly as to the consequences. The
court found that she lacked reasonable and probable cause for the prosecution, as
she was not in possession of evidence showing a reasonable prospect of a
conviction at the time.

The appeal




3 Uniform Rule 33(4) provides:
‘Special cases and adjudication upon points of law:
. . . .
(4) If, in any pending action, it appears to the court mero motu that there is a question of law or fact which may
conveniently be decided either before any evidence is led or separately from any other question, the court may
make an order directing the disposal of such question in such manner as it may deem fit and may order that all
further proceedings be stayed until such question has been disposed of, and the court shall on the applic ation of

any party make such order unless it appears that the questions cannot conveniently be decided separately.’

8

[18] In order to succeed in a claim for malicious prosecution, the plaintiff is
required to prove: (a) the defendant set the law in motion (instigated or instituted
the proceedings), (b) the defendant acted without reasonable and probable cause,
(c) the defendant was actuated by malice or animus iniuriandi and (d) the
prosecution failed.4

[19] The key issues on appeal are whether the respondent discharged the burden
of proving the lack of reasonable and probable cause to prosecute him and that
the prosecution was instituted animo iniuriandi (i.e. with the intention to injure
the respondent). The appellant submits that the high court erred in its assessment
and application of the law on both points. If either element is not established, the
delict of malicious prosecution is not made out.

Reasonable and probable cause
[20] In Prinsloo and Another v Newman ,5 this Court discussed the concept of
reasonable and probable cause for prosecution in the context of malicious
prosecution. The Court held that the test for reasonable and probable cause is an
objective one. 6 It is not based on the subjective beliefs or motives of the
prosecutor. Reasonable and probable cause exists if a reasonable person would
have concluded that the accused was probably guilty on the facts available to the
prosecutor at the time.7

[21] It follows that a prosecutor need not have evidence establishing a prima
facie case or proof beyond a reasonable doubt when deciding to initiate a


4 Minister of Justice and Constitutional Development and Others v Moleko [2008] ZASCA 43; [2008] 3 All SA
47 (SCA); 2009 (2) SACR 585 (SCA) para 8.
5 Prinsloo and Another v Newman 1975 (1) SA 481 (A).
6 Ibid at 509B.
7 Ibid at 484B. See also Relyant Trading (Pty) Ltd v Shongwe and Another [2006] ZASCA 162; [2007] 1 All SA
375 (SCA) para 14; Beckenstrater v Rottcher and Theunissen 1955 (1) SA 129 (A) at 136A-B.

9

prosecution. Suspicion of guilt on reasonable grounds suffices. The question is
what a reasonable prosecutor would have done in light of the information
available at the relevant stage.

[22] The high court found that the NDPP failed to apply the correct test at all by
focusing only on a prima facie case. Further, the NDPP did not present evidence
to the court showing that the DDPP’s decision was supported by reasonable and
probable cause.

[23] A thorough review of the evidence that was before the DDPP when she
decided to prosecute establishes objective probable cause to prosecute,
notwithstanding that the respondent was discharged at the trial. In paragraph 17.4
of the judgment, the high court stated:
‘Nothing in the form of the contents of the case dockets concerning the plaintiff, considered by
Adv Moonsamy, was put before me on behalf of the defendant, establishing reasonable and
probable cause to prosecute the plaintiff. Indeed, Adv Moonsamy testified that, in her view it
was not necessary for her to have had reasonable and probable cause to institute the prosecution
and all that she had to establish was whether a prima facie case could be established from the
information and evidence considered by her. Even if she was correct, which she was not, neither
she nor the defendant adduced any evidence whereon she made her decision. The high water
mark of her evidence was that she resolved that, on the contents of the case dockets put before
her, a prima facie case against the plaintiff existed.’

[24] The high court criticised the DDPP for presuming that a prima facie case
sufficed but failed to properly assess whether the evidence in the form of
statements and other information the DDPP relied on provided reasonable and
probable cause or not. The evide nce available when the decision was taken is
relevant in establishing probable cause rather than the evidence accepted by the
court when deciding the eventual outcome.

10

[25] The absence of the docket from the evidence before the court ought not to
have been held against the NDPP. As the plaintiff, the respondent bore the overall
onus and should have sought to compel its production to challenge the evidence
of the DDPP. By concentrating on the prosecution’s ultimate failure, the high
court erroneously diverted attention from scrutinising reasonable and probable
cause.

[26] During the trial, the DDPP testified that she considered various pieces of
evidence when making her decision. This included a statement from the
investigating officer, which detailed how the suspect, Mr Nkosi, was implicated
in a business robbery and murder by his co-accused and that an unlicensed firearm
was discovered buried at his residence. The investigating officer stated that the
respondent reneged on an undertaking to postpone the cases for further
investigation and scuppered the prosecution of serious criminal matters. While
the investigating officer’s opinion could not bind the respondent in the exercise
of his prosecutorial discretion, his account raised a reason able suspicion of
impropriety that warranted further investigation as it suggests possible
misconduct by the respondent in handling serious criminal cases.

[27] Additionally, Mr Nkosi’s own confession in his warning statement
admitted to the charge of possessi on of an unlicensed firearm. This evidence
directly corroborates part of the investigating officer’s account. It lends credibility
to the allegation that the respondent improperly withdrew charges against a
suspect who had confessed to a serious crime. While not conclusive, this evidence
strengthens the case for reasonable and probable cause to investigate and
prosecute the respondent. The DDPP also considered an affidavit from the
respondent’s supervisor, Ms Mashapa, which stated that the respondent had
withdrawn serious charges, including murder charges, without authorisation and

withdrawn serious charges, including murder charges, without authorisation and
against standard practice. This evidence, coming from the respondent’s own

11

supervisor, carries significant weight in suggesting that his actions were improper
and warranted scrutiny.

[28] The DDPP testified that she consulted multiple prosecutors and advocates,
who expressed the prima facie view that criminal charges against the respondent
were justified. Most significantly, the DPP himself confirmed in writing that the
dockets disclosed grounds for prosecution, albeit requesting further evidence be
obtained before a final decision was made. While the DPP's confirmation was not
an unequivocal endorsement, it provides strong evidence that the DDPP's decision
was n ot baseless or wholly unsupported by the available evidence. While not
binding, these opinions from legal professionals with knowledge of prosecutorial
standards and practices lend additional support to the reasonableness of the
DDPP's assessment of the evidence and decision to prosecute. The fact that the
DDPP sought out multiple opinions suggests a diligent and good -faith effort to
assess the merits of the case before proceeding. The high court unequivocally
accepted the DDPP’s evidence as credible.

[29] Viewed holistically and in context, the information at the DDPP’s disposal
at the time she decided to prosecute established reasonable and probable cause in
the form of grounds for suspicion of guilt on which she was entitled to act. As the
Supreme Court of Canada opined in Miazga v Kvello Estate 2009 SCC 51 ,8 ‘the
reasonable and probable cause inquiry comprises both a subjective and an
objective component’. The prosecutor must subjectively have a belief in the
existence of reasonable and probable cause, and that belief must be justifiable
from an objective point of view. The objective component requires the existence
of sufficient evidence for a reasonable person to conclude that the accused was
probably guilty.


8 Miazga v Kvello Estate, 2009 SCC 51 [2009] 3 S.C.R. 339 at 341.

12


[30] The fact that the respondent was subsequently discharged does not negate
the earlier existence of reasonable and probable cause. Also, the DDPP’s
statement that she believed there was a prima facie case but not enough evidence
for a corruption charge does not imply that there was no probable cause for the
actual charges of fraud and defeating the ends of justice brought forth by the
prosecution. The high court’s conclusion that there was no reasonable and
probable cause is thus not properly substantiated by the evidence.

Lack of animo iniuriandi
[31] Proof of animus iniuriandi, in the sense of intention to injure, is an essential
element of the actio iniuriarum on which a malicious prosecution claim is based.
The DDPP had to intend to prosecute the respondent with the consciousness of
wrongfulness. Negligence or even gross negligence is insufficient - there must be
dolus, at minimum, in the form of dolus eventualis.9

[32] To show animus iniuriandi , the respondent had to demonstrate that the
DDPP foresaw the possibility that initiating the prosecution was wrongful in that
reasonable grounds for it were lacking but that she acted recklessly as to that
consequence. The high court’s analysis took an unduly narrow view of the
evidence.

[33] An improper motive alone is insufficient to establish animus iniuriandi for
a malicious prosecution claim.10 As noted above, the prosecution must also have
been initiated without reasonable and probable cause. 11 Given my finding that
there was an objectively reasonable basis to prosecute the respondent, any

9 Moleko fn 4 above para 64.
10 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA); 2009 (1) SACR
361 (SCA); 2009 (4) BCLR 393 (SCA); [2009] 2 All SA 243 (SCA) para 37.
11 Ibid para 37.

13

improper motive does not render the prosecution wrongful. Moreover, the desire
to set an example that prosecutors will be held accountable for unjustified
decisions is not in itself an improper motive for a prosecution that is otherwise
justified. Ensurin g the integrity of the prosecutorial process is a valid and
important consideration. While the phrasing of the NDPP’s memo was perhaps
ill-advised, it does not establish the required intention to injure the respondent
through baseless proceedings.

[34] The hig h court placed undue emphasis on the DDPP’s statement in a
memorandum that she did not believe that the available evidence could prove the
respondent’s corruption. This was taken to show she foresaw the prosecution was
ill-founded. However, the charges actually brought were fraud and alternatively
defeating the ends of justice. It does not follow that the DDPP doubted the
sustainability of those charges merely because she did not consider a corruption
case winnable.

[35] As discussed above, the DDPP did not act unilaterally but after extensive
consultation and upon receiving the NDPP’s written confirmation that the dockets
disclosed a prima facie case justifying prosecution. It bears noting that the DDPP
had no personal connection to the respondent, as she ha d been appointed to the
office from another province just a month prior. These factors reduce the
likelihood of a malicious motive. Her conduct, viewed objectively, is
incompatible with a consciousness of wrongfulness, recklessness or animus
iniuriandi. Pr oving malicious prosecution requires egregious conduct, not just
flawed reasoning. The high court here was too quick to impute animus iniuriandi
without clear evidence thereof.

14

[36] Importantly, as noted in Moleko,12 If the DDPP had reasonable and
probable cause to initiate the prosecution, any improper motive she may have had,
such as seeking to punish or make an example of the accused, is irrelevant. The
"sending a message" language used in the DDPP's memo, although ill-advised,
seems to be intended to convey the seriousness of the allegations and the
importance of holding prosecutors accountable rather than a desire to punish the
respondent unfairly. The language does not negate the objective evidence
supporting the decision to prosecute. Furthermore, it does not necessarily prove
malice, as animus iniuriandi requires the DDPP to have both intended to cause
harm and been aware of the wrongfulness of her actions13.

[37] Overall, the evidence falls short of establishing on a balance of
probabilities that the DDPP acted with the requisite animus iniuriandi. Indeed,
the indications are that she genuinely believed the respondent’s prosecution was
legally justified and appropriate in light of the seriousness of the investigatin g
officer’s complaint and the nature of the underlying criminal matters. More is
required to prove animus inuiriandi than an error of judgement or misplaced zeal.

[38] Finally, and flowing from the above, the high court did not give sufficient
regard to the constitutional imperatives of prosecutorial independence and
discretion in its evaluation. Prosecutors must be free to pursue cases they believe
have merit without undue fear of adverse consequences, provided they act
rationally, honestly and without improper motives.

Conclusion
[39] For these reasons, I am satisfied that the respondent did not discharge the
onus of proving the essential elements of his malicious prosecution claim. The

12 Moleko fn 4 para 57.
13 Relyant Trading fn 7 para 5.

15

high court erred in its evaluation and application of the legal requirements and its
assessment of the evidence as a whole. The appellant succeeded in showing that
the appeal would have a reasonable prospect of success and that it consti tutes
compelling reasons why leave to appeal should be granted.

[40] The application for leave to appeal and the appeal must thus succeed. I see
no reason to depart from the ordinary rule that costs should follow the result in
both this Court and the high court below.

[41] In the result the following order is made:
(a) The application for leave to appeal is granted with costs.
(b) The appeal is upheld.
(c) The order of the high court is set aside and replaced with the following:
‘The plaintiff’s claim is dismissed with costs’.
(d) The respondent is ordered to pay the costs of the appeal.




K E MATOJANE
JUDGE OF APPEAL

16

APPEARANCES

For appellant: H Epstein SC (with him T V Mabuda)
Instructed by: The State Attorney, Pretoria
The State Attorney, Bloemfontein


For respondent: No Appearance