In a recent judgment the supreme court of appeal, unsurprisingly, reaffirmed that a favourable result of the prosecution for the claimant remains a requirement for a complete cause of action in a claim based on malicious proceedings.
In terms of the Prescription Act a debt is due, owing and payable when the creditor, that is the claimant, acquires a complete cause of action for the recovery of the debt.
The entire set of facts which the claimant must prove in order to succeed with their claim against the defendant must be in place.
Only when everything has happened which entitles the claimant to institute action and pursue their claim does prescription start to run.
In a claim for malicious proceedings the claimant must allege and prove that:
- The defendant set the law in motion, for example by instigating or instituting the proceedings.
- The defendant acted without reasonable and probable cause.
- The defendant acted with malice or intention to injure.
- The prosecution of the complaint has failed or been withdrawn.
In this case, proceedings were brought against a healthcare practitioner, to the Health Professionals Council of South Africa (HPCSA). Prescription only started to run when the HPCSA notified the claimant that the complaint had been dismissed.
Only then was the claimant able to establish that the fourth and final requirement for an action for malicious proceedings was satisfied and therefore only then did prescription begin to run. The defendant’s defence of prescription failed.
The case is Holden v Assmang Limited.
