Case:
Joubert v Nedbank Ltd [2011] JOL 27490 (ECP)

Area of law:
Delict / Malicious Prosecution

Brief facts/summary:
The plaintiff sued the defendant for damages arising from an alleged malicious prosecution.

The plaintiff worked for the defendant for a period of 19 years as a teller. When money went missing from a money bag the defendant acquired the services of a forensic investigator, who concluded by a process of elimination based on circumstantial evidence, that on a balance of probabilities the plaintiff had misappropriated the funds.

The plaintiff instituted action for malicious prosecution arising out of the instigation of criminal proceedings as well as the institution of disciplinary proceedings against her.

The court held that the plaintiff had failed to prove that the prosecution was without reasonable and probable cause. In the circumstances the cause of action had to fail, regardless of the motive for instituting the prosecution.

The plaintiff‘s claim was dismissed.

Importance/value:
In order to succeed with a claim for malicious prosecution, the plaintiff must allege and prove that the defendant had; (1) instigated or instituted proceedings and (2) that the defendant acted with malice and without reasonable and probable cause.

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