Retired KZN judge president awarded nearly R1m in damages claim
13 June 2018
Retired KwaZulu-Natal Judge President Chiman Patel has been awarded damages of R900 000 - believed to be one of the biggest ever awards in South Africa - in his claim against provincial Director of Public Prosecutions Moipone Noko for malicious prosecution and reputational damage.
"This is such a relief… it has been four years," Patel told News24.
He sued Noko and the National Director of Public Prosecutions after being charged with crimen injuria, relating to an incident in his chambers with a stationery clerk in 2013.
He was summoned to appear in court a year later. Two months later, when the trial was due to start, the charge was withdrawn without explanation.
Patel, in his evidence in the civil trial before Gauteng Judge Aubrey Ledwaba, spoke of his humiliation.
"I became a virtual recluse… the stress led to my decision to retire early," he said.
The clerk, Lindiwe Nxele, claimed that Patel had shouted at her, pointed his finger at her and called her "nonsense, trash, rubbish and useless".
Judge Patel denied this, claiming he had said: "Do I have to cope with this rubbish." He said he was not referring to Nxele personally.
His registrar, Roma Morar, and court manager Karlien Marais, who were present at the time, backed him up.
In his ruling handed down on Wednesday, Judge Ledwaba said the fact that the word "rubbish" was used was not in dispute.
"What is in dispute is the context it was used. I am mindful, in a society such as ours with a diversity of languages, there is always scope for misunderstand and misinterpreting language."
Turning to Noko's role in the matter, he said it appeared she had only consulted with Nxele, and not Marais or Morar.
She had then referred the matter to the National Director of Public Prosecutions, who suggested that the issue be handled by means of a disciplinary process by the Judicial Conduct Committee, or through mediation.
If neither of these produced an amicable solution, then Patel could be prosecuted and: "It would not be improper to allow him to pay an admission of guilt fine."
In her evidence, Noko had insisted that Nxele wanted the matter to go to court. However, Nxele testified that she wanted to have a face-to-face discussion with Patel.
This, Judge Ledwaba said, appeared to be supported by an affidavit by one of the investigating officers, who attended a consultation during which Nxele was interviewed, where she stated that she was happy to follow the mediation process.
Nxele also testified that she had told Noko that - if Patel apologised - she would not have insisted that the criminal case proceed.
"We should all be concerned about the maintenance and promotion of the rule of law. Given the increasing litigation involving the NDPP, these principles cannot be repeated often enough. We ignore them at our peril," Judge Ledwaba said.
"The provincial director should have been satisfied that there was reasonable and probable cause, not just a prima facie case against [Patel].
"The docket should have been interrogated in its entirety... If I accept the version of Nxele, it implies that Noko was not a credible witness and she fabricated evidence.
"Crucially, Patel was also not informed about an opportunity to pay a fine, as recommended.
"She [Noko] was not a good witness and did not execute the duties reasonably expected from a Director of Public Prosecutions. She gave long-winded and argumentative answers when she testified," the judge said.
He said the charges were dropped after a three-woman prosecuting team, appointed by Noko to consult with Nxele and all the witnesses, told Noko that to continue would be "prosecuting maliciously".
"We are not persecutors, we are prosecutors… this matter impedes on our dignity," they wrote in a memorandum to her.
He found that the Noko, "who was intent on seeing the matter being heard in a criminal court", the national director, who also did not carefully consider the statements, and Nxele, who made contradictory statements about what occurred that day in chambers, had acted with an intention to injure Patel.
Regarding the damages award, the judge said Patel was a few years from retiring with an unblemished record of service to the judiciary and legal profession at the time.
"The incident was widely publicised in the media and he had to appear in court on two occasions as an accused.
"No meaningful attempts were made to pursue alternative dispute resolution methods.
"The defendant's counsel submitted that an appropriate damages award should be between R150 000 and R200 000. I disagree. They were aware that the case involved a senior judge.
"R900 000 is fair and reasonable," Judge Ledwaba concluded.
He said Noko could not be held personally liable, because she was acting in the course of her duties.