Home

 

Think twice before you prosecute: Can employers be held liable for malicious prosecution claims arising from internal disciplinary proceedings?

By Nicholas Preston, Director, Sean Jamieson, Associate, Employment, Cliffe Dekker Hofmeyr

 

This question arose in the judgment of Mahlangu v Minister of Police (66326/2010) [2017] ZAGPPHC 13.

 

In this case, the employer laid charges of assault with intent to do grievous bodily harm against Mahlangu, which resulted in his suspension for approximately four months pending an investigation. The charges were subsequently withdrawn. 

 

Ordinarily, this would be the end of the matter and the employee would return to work with no disciplinary record. However, this was not the case for Mahlangu, who claimed that the dubious charges proffered against him by his employer constituted malicious prosecution. Mahlangu instituted a claim for damages against the employer in the High Court for compensation in the amount of R625,000.00.

 

There is no automatic right to claim compensation in a malicious prosecution claim in South African law. The claimant is first required to prove the damages suffered before any right to claim compensation accrues. Prior to dealing with the merits of the claim, however, the parties agreed that the Court must first determine whether a claim of malicious prosecution may arise from internal disciplinary proceedings or whether such a claim is limited to civil or criminal proceedings instituted in a court of law.

 

The employer, relying on English case law, argued that internal disciplinary proceedings are excluded from the law of malicious prosecution and such a claim is limited to malicious criminal or civil proceedings. However, the Court indicated that while foreign law may have a persuasive value, courts should “avoid an uncritical adoption of foreign law principles”. 

 

In dismissing the English law relied upon by the employer, the Court focused its analysis on the requirements of the South African law of delict, its flexibility and the South African Constitutional order. In doing so, the Court held that the fact that these proceedings were not instituted in a court of law should not be a decisive factor and that South African law adopts a flexible approach in this regard. 

 

The Court went on to state that the charge against Mahlangu, albeit in the forum of internal disciplinary proceedings, nevertheless impaired the good name and dignity of Mahlangu and, according to the Court, it was difficult to see how this type of harm could only manifest itself in the form of criminal proceedings. 

 

The Court, therefore, ruled that the charges proffered against Mahlangu constituted a cause of action for malicious prosecution. However, what is crucial is the Court’s comments and seeming differentiation regarding the fact that Mahlangu was charged under regulations promulgated in terms of the South African Police Services Act, No 68 of 1995, which governed the disciplinary procedures of the employer. The Court held the following:

 

“There can be no doubt that the plaintiff was charged departmentally in terms of a (statutory) law promulgated in the form of subordinate legislation as opposed to, for instance, a domestic code of conduct which came into existence by agreement only”

 

The Court’s focus on this differentiation leaves us with a level of uncertainty regarding the position of non-state, private employers whose disciplinary proceedings are not regulated under statute. The Court essentially stated that it is dependent on the facts of each case. The Court held: 

 

“It is important to bear in mind that not all disciplinary proceedings are of a similar nature. It should, therefore, be pointed out that I have attempted to apply the law as it is found to be, or should be, in the case before me, without suggesting that it should necessarily also apply to all other cases of disciplinary proceedings”

 

Employers with disciplinary procedures regulated by statute/regulations may, therefore, be subjected to malicious prosecution claims, depending on the circumstances of each case. Where non-state, private employers are concerned, the Court’s position is unclear and as such, it seems that it may also be possible for these employers to similarly be exposed to claims for malicious prosecution. Accordingly, both state and private employers are advised, as should always be the case, to first ensure that any disciplinary proceedings instituted against employees are founded upon reasonable and probable cause, along with the necessary evidence, in order to avoid the risk of malicious prosecution claims.

 

For more information contact Nicholas Preston at or Sean Jamieson at

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

 

 

Case Law Summaries and Articles

 

Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

Read More >>>

 

Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

Read More >>>

 

Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

Read More >>>

 

Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

Read More >>>

 

 

 

 

 

 

Courses and Workshops

 

                                         

 
 

The OHS Act and the Responsibilities of Management

19 September 2019

Emperors Palace: Convention Centre

29 November 2019

Tsogo Sun: Century City: Stay Easy: Cape Town

Managing Day to Day Issues/ Problem Employees Full day workshop

20 September 2019

Emperors Palace: Convention Centre

27 September 2019

Tsogo Sun: Century City: Cape Town

Employment Equity Committee Training

27 September 2019

Emperors Palace: Convention Centre

04 October 2019

Southern Sun: Maharani: Durban

AARTO and the Impact on Your Business

02 October 2019

Protea Hotel By Marriott Tyger Valley: Cape Town

03 October 2019 (Fully Booked)

Emperors Palace Convention Centre

04 October 2019 (Fully Booked)

Emperors Palace Convention Centre

11 October 2019

Emperors Palace Convention Centre

18 October 2019

Southern Sun: Elangeni: Durban

Hazard Identification & Risk Assessment Course

18 October 2019

Emperors Palace: Convention Centre

27 November 2019

Tsogo Sun: Century City: Stay Easy: Cape Town

Problem-solving and Decision-making Skills

24 & 25 October 2019

Emperors Palace: Convention Centre

Workshop Incident/Accident Investigation Course

25 October 2019

Emperors Palace: Convention Centre

28 November 2019

Tsogo Sun: Century City: Stay Easy: Cape Town

Managerial and Leadership Skills

06, 07 & 08 November 2019

Emperors Palace: Convention Centre

2019: Case Law Updates

15 November 2019

Emperors Palace: Convention Centre  

  

 Our Clients 

 

Android App On Google Play

Android App On Google Play