Former judge wins lawsuit
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However on the day the trial was meant to start, the charge was withdrawn.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.