NDPP refused leave to appeal malicious prosecution ruling in retired judge's matter

The door has shut on a bid by prosecution bosses to challenge a finding that they acted maliciously in prosecuting retired KwaZulu-Natal Judge President Chiman Patel for crimen injuria.

After hearing arguments on Wednesday, North Gauteng Deputy Judge President Aubrey Ledwaba, sitting in the Durban High Court, denied the National Director of Public Prosecutions (NDPP), the provincial director Moipone Noko and court clerk Lindiwe Nxele leave to appeal against his ruling – and his award of R900 000 damages to Patel – in the Supreme Court of Appeal.

"There are no prospects of another court reaching a different decision," he said, ordering them to pay the costs of the hearing.

Ledwaba presided over the civil trial in which Patel sued for reputational damage as a result of his arrest following an incident in his chambers with Nxele in 2013 which resulted in her laying a criminal charge against him and him being summoned to appear in court a year later.

On his second court appearance, the charge was withdrawn. It emerged during the trial that a three-woman prosecuting team had assessed the docket, interviewed Nxele and informed Noko that "we are prosecutors not persecutors", and cautioned that the State would lose the case and could be sued.

Nxele claimed that Patel had shouted at her, pointed his finger and called her "nonsense, trash, rubbish and useless".

Noko 'not a good witness'

Patel denied this. His version that he said: "Do I have to cope with this rubbish?" instead, was backed up by his registrar, Roma Morar, and court manager Karlien Marais, who were present.

In June this year Ledwaba ruled in Patel's favour, saying Noko should have been satisfied that there was reasonable and probable cause, not just a prima facie case against Patel before deciding to prosecute him.

He pointed to the fact that while Noko had insisted in evidence that Nxele wanted the matter to go to court, Nxele had testified that she actually she wanted a face-to-face discussion with Patel.

Noko, he said, was not a good witness.

Regarding the award of R900 000, he said he took into account that Patel had an unblemished record of service to the judiciary and legal profession and the incident had been widely publicised.

In argument for leave to appeal, the NDPP's legal team Modise Khoza, SC, and David Mtsweni said Patel had attacked Nxele's integrity and her dignity and had behaved "like a bull in a china shop".

Evidence contradicted

They said Noko, before deciding the charge Patel, had asked for the opinion of the NDPP, who suggested the matter be reported to the Judicial Conduct Committee or taken to mediation first.

"It was only when Nxele refused both that she authorised the summons."

Regarding the amount, they said Judge Ledwaba had erred because he had overemphasised the "wide publicity" given to the matter.

"In fact, the withdrawal of the charge garnered equal publicity and it was clear that members of the profession did not believe in his guilt."

Advocate Vinay Gajoo, for Patel, said an application for leave to appeal was "not a licence to re-argue the case".

"The judgment is a model of clarity, it deals step by step with all the facts. What is clear is that even at the most basic level, anyone seized with that docket would see that the evidence of Nxele was contradicted by the two witnesses," Gajoo said.

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