In the appeal case of George Magwabeni v Christopher Liomba, 2015, the Supreme Court of Appeal (“SCA”) reviewed the judgment of the Limpopo Local Division that found Magwabeni liable for damages for malicious prosecution.  The case arose from a complaint that he had lodged against Liomba with the SAPS that was followed by Liomba’s arrest and detention. Liomba was charged following the complaint, but the charges were subsequently withdrawn and he was released after having spent a week in detention.

The issue before the SCA was whether Magwabeni acted maliciously when he laid a charge of trespassing and malicious injury to property against Liomba.

Liomba’s was employed by Magwabeni to provide certain services at Magwabeni’s hotel. Magwabeni allowed him to stay on the premises, in terms of a lease, during the duration of the employment contract.  A dispute arose between Magwabeni and Liomba, as a result of which Magwabeni terminated Liomba’s services and the lease and told him to vacate the premises by 15 December 2008.  Liomba refused to do so because, according to him, he had not been paid for his work.  

While the dispute was on going, one of Magwabeni’s employees reported damage to the hotel and said she had seen Liomba in the vicinity of the damage.  Magwabeni inferred that Liomba was the person responsible for the damage.  On 17 December 2008, following the employee's report, Magwabeni laid a charge of trespassing and malicious injury to property against the Liomba with the police and asked the police to assist him with the eviction of Liomba from the premises.  The police arrested the respondent and charged him with malicious injury to property.  After Liomba was released, he sued for damages in respect of malicious prosecution.

The High Court upheld Liomba’s claim for malicious prosecution stating that the institution of criminal proceedings against Liomba was not based on any reasonable suspicion and had more to do with Magwabeni’s want to evict Liomba, rather than the damage to his property.

On appeal, the SCA set out the definition and requirements for a malicious prosecution claim:

“Malicious prosecution consists of the wrongful and intentional assault on the dignity of a person encompassing his good name and privacy. To succeed with this claim, a claimant must allege and prove that:

1. The defendant set the law in motion (instigated or instituted the proceedings);
2. The defendant acted without reasonable and probable cause;
3. The defendant acted with malice (or animo injuriandi – the wrongful intention to defame or injure another's reputation or personality); and
4. The prosecution failed.”

These requirements were set out in Minister of Justice and Constitutional Development & others v Moleko, 2008, and Beckenstrater v Rottcher and Theunissen, 1955, set out the test for ‘absence of reasonable and probable cause'.  The test contains both a subjective and objective element, meaning there must be both actual belief on the part of the defendant and also that that belief is reasonable in the circumstances.

Based on the above, the SCA asked whether Magwabeni made statements to the police regarding these allegations without an honest belief founded on reasonable grounds that they were true.  The evidence showed that:

• There was a dispute between the parties;
• Simultaneously, the Magwabeni discovered that his property had been damaged;
• After Magwabeni’s employee informed him that she had seen Liomba near the electricity distribution box, Magwabeni inferred that Liomba was the person responsible for the damage as he was the only other person with access to the box.

The SCA held that the Magwabeni had reasonable and probable cause for the prosecution of Liomba regarding the trespassing claim, 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.  With regards to the malicious injury to property claim, the SCA held that Magwabeni believed that Liomba was responsible for the damage.  The SCA therefore found that Magwabeni was not malicious when he instituted criminal charges against Liomba.

The appeal was upheld with costs.