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The discussion of the South African cases involving wrongful police shootings and the damages awarded in that regard formed the subject of the discussion in the first part of this series. That discussion continued in the earlier section of part (2) whereas the discussion of the experiences of Lesotho and Malawi concludes that part of the article. The current part (3) concentrates on the developments in Namibia and Swaziland/Eswatini. A perusal of the Namibian case law reveals a Namibian Supreme Court judgment in Crown Security CC' v Gabrielsen 2015 (4) N R 907 (SC) where damages were awarded for the bodily injuries and deprivation of personal liberties caused by a security officer. Also discussed here are those cases of police and military officers' shootings and assaults in Eswatini where the claimants, in many instances, failed to prove such assaults ariel shootings. The series ends in this last part with a conclusion. [ABSTRACT FROM AUTHOR]

Having dealt with some vital preliminary issues, and the case study on where damages for malicious prosecution has been awarded in South Africa in the first of three articles; and having undertaken the case study of the developments in Australia, Canada and Trinidad and Tobago in the second article, this last instalment, the third article, discusses the case law in three Roman-Dutch jurisdictions of Lesotho, Namibia and Swaziland. Specifically highlighted herein, is the clear distinction between the heads of damage recoverable in the Roman-Dutch jurisdictions as compared to what obtains in the English common law of tort. The difference is in the total absence of claims for 'exemplary', 'punitive' or 'aggravated' damages in these Southern African jurisdictions ostensibly based on the compensatory function of damages. Such an issue arose in the so-called 'ritual killer' case, and the Supreme Court of Swaziland was not prepared to import into the Swazi law, 'a highly contentious innovation of this kind'. On the contrary, and as clearly demonstrated in this presentation using Canadian case law, these awards are constantly made in English, Australian, New Zealand, Trinidad and Tobago and Canadian courts to punish, deter, denounce or repudiate the high-handed or reprehensible conduct on the part of the prosecutor. The question, ultimately, is whether the right of the person maliciously prosecuted has been vindicated and the damages awarded must have served as a solatium to the injured feelings of the victim. [ABSTRACT FROM AUTHOR]

The first part in this three-part submission was devoted to a number of preliminary issues relating to the assessment of damages for malicious prosecution, such as the confusion caused by the word 'damage' as an element in the law of malicious prosecution and 'damages' in terms of the amount a successful plaintiff in an action for malicious prosecution could recover. In that part also, opportunity was taken to explore the circumstances where damages have been awarded in an action for malicious prosecution in South Africa and the ascertainment of the amount in such instances, with the tip of the iceberg being the recent case of the former Judge President of KZN High Court. The present article continues with the case study approach by investigating the experiences of Australia, Canada and Trinidad and Tobago having identified instances where damages has been awarded for the tort of malicious prosecutions in those common law jurisdictions. The cases discussed with regard thereto are no doubt informative but, the Privy Council judgment from Trinidad and Tobago is by far more instructive and dynamic on the factors to be taken into account in the quantification of damages for malicious prosecution from the point of view of the ordinary member of the society. Thus, the reputational damage which the law protects by an award of damages does not distinguish between a homeless person and an urban or rural dweller. [ABSTRACT FROM AUTHOR]

Malicious prosecution, along with wrongful arrest and unlawful detention (false imprisonment), is one of the foundational common law causes of action that vindicates breaches of personal liberty and human dignity rights. What, however, is not in constant discussion is the quantum of damages which a person who has been taken through the criminal prosecution process maliciously and with no reasonable and probable cause has been awarded in any given circumstance simply because very little has been written on the subject. This article ventures into this seemingly forgotten terrain of malicious prosecution in South African and selected Commonwealth jurisdictions. Most often, a malicious prosecution claim is entangled with claims for wrongful arrest and unlawful detention and, in that instance the award can be made in the form of general damages covering the three heads of claim. It is however possible to launch a straight-forward claim for malicious prosecution not only to restore the victim's impaired reputation caused by a failed prosecution initiated for no apparent reason and pursued, or continued, with an improper purpose as in the recent case of Patel v National Director o f Public Prosecutions [20181 ZAKZDHC 17; but also, to obtain compensation for the humiliation suffered, or financial loss incurred in the process relating to one's business or earnings as well as the legal costs of defending the criminal prosecution as in Hay ell v Bennett [20121 ZAGPJHC 9. This is the first of three parts. [ABSTRACT FROM AUTHOR]

Proof of damage is the fifth element in a claim for malicious prosecution in Namibia. The other four elements are the same as those canvassed in the South African and other Commonwealth jurisdictions such as Australia and Canada, namely that: the defendant initiated or instigated the prosecution; acted without reasonable and probable cause; acted with an improper purpose; and that the prosecution failed. The recent judgment of the High Court of Namibia in Mabupelo v Minister of Safely and Security 2017 (1) NR 275 (HC) which deals with issues not previously canvassed in Namibian courts is thus a welcome addition to the law of malicious prosecution. The remarkable lesson emanating from the Mabupelo judgment is that even if the defendant is held not liable in a claim for malicious prosecution because a reasonable and probable cause existed at the time the decision to prosecute was taken; that ground could turn out to be unreasonable once it becomes obvious that it no longer existed. Thus, instead of withdrawing or terminating the prosecution, the prosecutor maintains or continues it knowing that reasonable and probable cause no longer existed, hence triggering an inquiry into the prosecutor's improper motive and whether liability would attach in the circumstances. [ABSTRACT FROM AUTHOR]

The Constitutional Court has had the last word on the argument that had raged before the high courts in the last decade, but which was rejected by the Supreme Court of Appeal half a decade ago in Minister of Safety and Security v Sekhoto 2011 (5) SA 367 (SCA), to the effect that the Bill of Rights is not a fifth jurisdictional fact to the requirements of s 40(1)(b) of the Criminal Procedure Act 51 of 1977. Rather than being an additional jurisdictional fact, the Constitutional Court has held in MR v Minister of Safety and Security 2016 (2) SACR 540 (CC) (MR), that a police officer faced with the exercise of the discretion to arrest a child must not only balance the conflicting interests, but must take into consideration the constitutional requirements of the best interests of the child and the limitation regarding the detention of a child in s 28(2) and 28(1)(g) of the 1996 Constitution. Failure on the part of the police to bring these constitutional protections afforded the child to bear on the decision to arrest or not to arrest, renders such a decision unlawful and unconstitutional. While the search for a fifth jurisdictional fact may have ended at this juncture, the Constitutional Court judgment in MR marks the beginning of the infusion of s 28(2) and 28(1)(g) of the Bill of Rights into the exercise of the discretion to arrest and detain a child in the circumstances of s 40(1) of the CPA. [ABSTRACT FROM AUTHOR]

The circumstances in which a police officer may, without warrant, arrest any person who commits or about to commit an offence in his or her presence in terms of s 40(1)(a) of the Criminal Procedure Act 51 of 1977 is by no means easy to determine. Does an offence committed in the presence of a police, or arresting officer, contemplate that incident which the officer witnessed or does it include arrest based on information brought to his or her attention by someone else? Assuming that the officer was present in the vicinity of the event but did not witness the actual commission of the offence, to what extent can he, in effecting an arrest under s 40(1)(a), rely on information from another officer or a third party who saw what happened? Would that meet the requirement of an offence committed in the presence of a peace officer? In other words, can the arresting officer see through the lense of his colleague or that of a third party?. [ABSTRACT FROM AUTHOR]