Many people are being subjected to criminal proceedings which are wrongfully instituted against them by the State with malice and without probable cause.
It is a common fact that the reason behind any prosecution or for the institution of criminal proceedings against the offender is to bring him or her to justice. Such proceedings must be reasonable and with probable cause.
Where a reasonable and probable cause is not proved by the State, the question of what is called malice arises or where the lack of reasonable and probable cause is proved in the instituted criminal proceedings against the offender by the State, malice is most likely to exist and both must be proved for one to claim and succeed in malicious prosecution.
In South African law, malicious prosecution is an aspect of delictual liability arising from malicious proceedings which may occur where the State abuses the process of the Court by wrongfully or maliciously setting the law in motion against the offender.
The person who is instigating the proceedings against the offender will be liable for damages if he acted intentionally, maliciously and without reasonable and probabale cause.
In Minister of Justice and Constitutional Development v Moleko [2008] 3 All SA 47 (SCA) it was stated that in order to succeed with claim for malicious prosecution, a claimant must allege and prove-
Reasonable and probable cause that need to be established by the defendants has been defined by Hawkins J in Hicks v Faulkener to be an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of existence of a state of circumstances , which, assuming them to be true, would reasonably lead any ordinary prudent and cautious men, placed in the position of the accused, to the conclusion that the person charged was probably guilty of the crime imputed. Malice is a question of fact, requiring evidence by the one claiming malicious prosecution that the prosecutor was impelled by an improper purpose.
Therefore it is about the honest belief of the State that the facts available at the time of institution of criminal proceedings constituted an offence and that a reasonable person could have concluded that the offender was guilty of such an offence and it is for the trial court to decide as to whether or not there is evidence upon which the offender might reasonable be convicted.