Former judge wins law­suit

The Mercury - - FRONT PAGE - Kamini Pa­day­achee and Nosipho Mn­goma

VINDICATED is how former KwaZulu-Natal judge pres­i­dent Chi­man Pa­tel feels af­ter he was awarded dam­ages of R900 000 in his claim against the State for ma­li­cious pros­e­cu­tion and dam­age to his rep­u­ta­tion.

The dam­ages suit stemmed from a crimen in­juria charge that had been opened against him by sta­tionery clerk Lindiwe Nx­ele, in 2013.

Nx­ele had alleged that she had been called a “non­sense, trash and rub­bish” by the judge dur­ing an in­ci­dent in Oc­to­ber 2013.

How­ever this was ve­he­mently de­nied by the judge who said while he had said the word “rub­bish”, he had not been re­fer­ring to Nx­ele.

The Na­tional Pros­e­cut­ing Author­ity’s (NPA) pro­vin­cial di­rec­tor of pub­lic pros­e­cu­tions (DPP), ad­vo­cate Moipone Noko took a de­ci­sion to pros­e­cute the judge in 2014 which was sanc­tioned by the na­tional di­rec­tor of pub­lic pros­e­cu­tions (NDPP).

How­ever on the day the trial was meant to start, the charge was with­drawn. There­after judge Pa­tel took on the State, su­ing the NPA, ad­vo­cate Noko, the jus­tice min­is­ter and Nx­ele for R3 mil­lion in dam­ages in re­spect of con­tu­melia, em­bar­rass­ment, im­pair­ment of dig­nity, rep­u­ta­tion and hu­mil­i­a­tion.

Speak­ing to The Mer­cury yes­ter­day, judge Pa­tel’s at­tor­ney Craig Wool­ley, of firm Nor­ton Rose Ful­bright, said his client was “very happy” that the mat­ter was fi­nally over.

He said judge Pa­tel was happy with the out­come as he felt it vindicated him.

“It took five years to get here, it’s been a tough road but we got fi­nal­ity in the end.”

Judge Pa­tel took an early re­tire­ment, par­tially be­cause of the case, which Wool­ley said af­fected his health.

“He was a very com­pe­tent judge, even the judg­ment talks about his un­blem­ished record, it’s a pity he left early.”

Wool­ley said while they were sat­is­fied with the out­come, he felt that ad­vo­cate Noko and Nx­ele had got off lightly. In his judg­ment, Judge Aubrey Led­waba took is­sue with how the mat­ter had been han­dled by the NPA.

He said gen­er­ally courts did not like to “limit or in­ter­fere” with pros­e­cu­to­rial author­ity, but said a pros­e­cu­tor’s dis­cre­tion was not im­mune from scru­tiny.


“A pros­e­cu­tor should as­sess whether there is suf­fi­cient and ad­mis­si­ble ev­i­dence to pro­vide a rea­son­able prospect of suc­cess, oth­er­wise the pros­e­cu­tion should not com­mence.”

He said of cru­cial im­por­tance in the pros­e­cu­tion of the crimen in­juria case was that two other wit­nesses, who had been present dur­ing the in­ci­dent, had given state­ments that did not cor­rob­o­rate Nx­ele’s ver­sion of what took place.

He said de­spite this stum­bling block, the pros­e­cu­tion was pur­sued even af­ter an NPA team rec­om­mended that the mat­ter could be dealt with by the Ju­di­cial Con­duct Com­mit­tee or through in­for­mal me­di­a­tion pro­cesses.

He said in the civil trial be­fore him ad­vo­cate Noko had tes­ti­fied that the alternate op­tions had not been taken as Nx­ele had wanted the mat­ter to go to court be­fore she later changed her mind and de­cided that the words said dur­ing the in­ci­dent had not im­paired her dig­nity.

How­ever Nx­ele tes­ti­fied that she had wanted a face-to-face dis­cus­sion with the judge, which ap­pears to be cor­rob­o­rated by an af­fi­davit of one of the in­ves­ti­gat­ing of­fi­cers.

“When re­gard is had to the ev­i­dence that was be­fore the first (NDPP) and sec­ond de­fen­dants (DPP) be­fore the de­ci­sion to pros­e­cute was taken there must have been con­sid­er­able doubt with re­gard to the ver­sion and un­der­stand­ing of Ms Nx­ele to what was said.”

The judge found that both Nx­ele and ad­vo­cate Noko had been poor wit­nesses and that they had been ar­gu­men­ta­tive in the civil trial. He fur­ther found that ad­vo­cate Noko had not ex­e­cuted her du­ties in a man­ner rea­son­ably ex­pected from a DPP but found that she should not be held per­son­ally li­able for the dam­ages.

He also said judge Pa­tel and his wit­nesses had been cred­i­ble and the former judge pres­i­dent had had an un­blem­ished record of ser­vice to the ju­di­ciary and le­gal pro­fes­sion.

Re­gard­ing the amount of dam­ages, Judge Led­waba said that an amount of R150 000 to R200 000 sug­gested by the de­fen­dants was not ac­cept­able as judge Pa­tel had been a se­nior judge.

In terms of the or­der made by the court, the NDPP, DPP and Nx­ele were found li­able to pay the dam­ages.

As the court found there was no ev­i­dence to im­pli­cate the min­is­ter of jus­tice, no or­der was made against him. The NPA said yes­ter­day that they would only com­ment af­ter read­ing the judg­ment.


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