C Okpaluba REASONABLE AND PROBABLE CAUSE IN THE LAW OF MALICIOUS PROSECUTION : A REVIEW OF SOUTH AFRICAN AND COMMONWEALTH DECISIONS

The requirement that the plaintiff in an action for malicious prosecution must prove a lack of reasonable and probable cause to initiate, instigate or continue the prosecution on the part of the instigator or prosecutor is one of the four elements of that cause of action. It is a vital link between the lawfulness of the prosecution and the state of mind of the defendant. Again, whether a prosecution is wrongful or lawful depends on whether there was a reasonable and probable cause coupled with the animus iniuriandi of the defendant in instigating, initiating or continuing it. It is not whether the prosecutor possessed evidence to secure a conviction since that is for the trial court to decide after the conclusion of evidence; but, the honest belief by the prosecutor that, having carefully collected and objectively assessed the available information, the plaintiff was probably guilty of the crime. In coming to that decision the prosecutor must have grappled with both the subjective and objective elements in the exercise of that discretion. The Australian High Court judgment in A v New South Wales 2007 230 CLR 500 (HCA) has brought clarity to this aspect of the problem. However, as this paper contends, the ten-point guidelines enunciated by that court in that case and designed to provide the courts with a seemingly less complicated formula for determining if the prosecutor lacked reasonable and probable cause do not appear to have provided the panacea to the problem. Meanwhile, the distinct nature of the requirement of reasonable and probable cause is made clearer when it is compared with reasonable ground to arrest in the case of wrongful arrest and the tort of abuse of process. Also problematic and equally challenging is identifying where a reasonable and probable cause inquiry stops and malice begins. This is brought out in the attempt by the Supreme Court of Canada to unravel the tension between the proof of the existence of malice and reasonable and probable cause in the law of malicious prosecution in Miazga v Kvello Estate 2009 3 SCR 339 (SCC). The extent to which the guidelines laid down in these recent cases would have resolved the confusion in this field of the law is yet to be realised.


Introduction
It is not every prosecution that is concluded in favour of the accused person that necessarily leads to a successful claim for malicious prosecution. So much depends on the absence of a reasonable and probable cause, and the animus iniuriandi of the defendant in instigating, initiating or continuing the prosecution. It is widely accepted that reasonable and probable cause means an honest belief founded on reasonable ground(s) that the institution of proceedings is justified. 1 It is about the honest belief of the defendant that the facts available at the time constituted an offence and that a reasonable person could have concluded that the plaintiff was guilty of such an offence. Ultimately, it is for the trial court to decide at the conclusion of the evidence whether or not there is evidence upon which the accused might reasonably be convicted. 2 In Hicks v Faulkner, 3 Hawkins J defined reasonable and probable cause as "an honest belief in the guilt of the accused based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances, which assuming them to be true, would reasonably lead to any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was investigation concentrates on reasonable and probable cause in an action for malicious prosecution, in appropriate instances references may occasionally be made to malice. An important adjunct to the subject matter is the concept of the objective sufficiency of the information available to the prosecutor, which brings to the discussion the leading Australian case of A v New South Wales, 14 where a ten-point guideline was laid down.
Equally relevant to this discussion are the contributions of the Supreme Court of Canada grappling with the modern concept of malicious prosecution since Nelles v Ontario 15 through Proulx v Quebec (Attorney General) 16

down to Miazga v Kvello
Estate 17 -the three Supreme Court judgments around which the modern law of malicious prosecution in Canada could easily be constructed. that the police not only had reasonable grounds to suspect that the accused person committed the offence but also that the prosecutor had reasonable and probable cause for prosecuting, the Lord Justice found it unnecessary to deal with the issue of malice. The reasoning behind so concluding was that since the judge held that '" [h]ad the claimant proved a lack of reasonable and probable cause for prosecuting, he would have succeeded in establishing malice in the sense of improper motive" (para 153). This is not, "as I read the judgment and as counsel for the Chief Constable agreed, a finding of malice, but an observation that there would have been an improper motive if the appellant had proved a lack of reasonable and probable cause for prosecuting, which he did not. That was because the evidence showed that part of the thinking of those responsible for the prosecution was to make an example of the appellant, as a police officer, and to show the public that the police were treating seriously innocent deaths caused in police road pursuits; a point that can be linked to the disquieting degree of publicity given to the arrest and charging of the appellant. However, that was as far as the point went; and the finding that there was reasonable and proper cause for the prosecution meant that the question of malice or improper cause became irrelevant to liability. It would be wrong in the circumstances to go any further into the issue.'" The next is Moulton v Chief Constable of the West Midlands 2010 EWCA Civ 524 paras 26-27 and 44 where Lady Justice Smith held that the trial judge had been right to hold that there was reasonable and probable cause to commence the prosecution but had made no specific reference to evidence of malice at the time of the charge, as he had not needed to do so. The claim could not succeed in respect of that period if there was reasonable and probable cause to prosecute. But, as a fact, there was not a shred of evidence from which it could be inferred that, at that early stage, the officers were motivated by anything other than a legitimate desire to bring the appellant to justice. The Justice of Appeal held that that there was never a time when the police did not have reasonable and probable cause to bring and continue the prosecution. In that case, it was not necessary to say anything about malice. See also Howarth v Gwent Constabulary 2011 EWHC 2836 (QB) paras 130-131. 14 A v New South Wales 2007 230 CLR 500 (HCA) (A v NSW) para 1. 15 Nelles v Ontario 1989 2 SCR 170 (SCC) (Nelles). 16 Proulx v Quebec (Attorney General) 2001 206 DLR (4 th ) 1 (SCC) (Proulx). 17 Miazga v Kvello Estate 2009 3 SCR 339 (SCC) (Miazga 2), 2008 282 DLR (4 th ) 1 (Sask CA) (Miazga 1).

Distinguishing the test for reasonable ground to suspect
The law of wrongful arrest and malicious prosecution are closely linked, but the principles governing each cause of action diverge at the point when the arrest and detention translate into prosecution. But because the requirement of reasonableness is common to both causes; reasonable ground to suspect 18 or, as it is described in some jurisdictions, "reasonable grounds"; 19 "reasonable cause"; 20 or "good cause to suspect"; 21 on the one hand and reasonable and probable cause to prosecute on the other, there is the tendency to conflate the different tests. However, Lord Devlin laid down the test of reasonable suspicion as: arising at or near the starting-point of an investigation of which the obtaining of prima facie proof is the end. 22 When such proof has been obtained, the police case is complete; it is ready for trial and passes on to its next stage. It is indeed desirable as a general rule that an arrest should not be made until the case is complete. But if arrest before that were forbidden, it could seriously hamper the police. To give power to arrest on reasonable suspicion does not mean that it is always or even ordinarily to be exercised. It means that there is an executive discretion. In the exercise of it many factors have to be considered besides the strength of the case. The possibility of escape, the prevention of further crime and the obstruction of police inquiries are examples of those factors with which all judges who have had to grant or refuse bail are familiar. 23 Building on the foregoing, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ spoke in George v Rocket 24 of the required state of mind, contrasting suspicion with a belief or a reason to believe, and held that suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: "I suspect but I cannot 18 Section 40(1)(b) Criminal Procedure Act 51 of 1977 of South Africa. 19 Section 24(6) Police and Criminal Evidence Act, 1984 (UK); s 495 (1) prove". The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In their opinion, it is a positive finding of actual apprehension or mistrust.
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture. 25 The judgment of Malan AJA in Relyant Trading is also instructive in this regard. The consists in the wrongful and intentional assault on the dignity of a person comprehending also his or her good name and privacy. 31 The requirements are that the arrest or prosecution be instigated without reasonable and probable cause and with "malice" or animo iniuriarum. 32 Although the expression "malice" is used, it means, in the context of the actio iniuriarum, animus iniuriandi. 33  Security v Sekhoto, 38 the four jurisdictional facts which the defendant must plead are that: (a) the arrestor must be a peace officer; (b) that he or she entertained a suspicion; (c) that the suspicion was that the arrestee had committed a Schedule 1 offence; 39 and (d) that the suspicion was based on reasonable grounds. It was further clarified in Sekhoto that once these jurisdictional facts are met, it was not necessary to add a gloss to the section by requiring the arresting officer to consider the Bill of Rights before arresting the suspect. 40 There was nothing in section 40(1)(b) that could lead to the conclusion that its words contain a hidden fifth jurisdictional fact. If it be recalled that the purpose of an arrest is to enable the arrestor to bring the suspect to justice, it follows that the discretion to arrest without a warrant does not impose upon the officer the burden of digging into the Bill of Rights to satisfy himself/herself that no aspect of it has been violated before exercising that discretion. Once the suspect has been brought to court, the authority to detain inherent in the exercise of the power to arrest expires and the authority to detain the suspect shifts to the court. 41 The test for determining the existence of a reasonable suspicion is an objective one, that is, the grounds of suspicion must be those which would induce a reasonable person to have the suspicion. 42 It is, therefore, not whether a police officer believes that he has reason to suspect, "but whether on an objective approach, he in fact has reasonable grounds for his suspicion". 43  prosecutor met that criterion. 57 However, unlike the South African courts, the Canadian courts go further to treat that same test as applicable to the requirement of reasonable grounds to arrest a suspect in the first instance. In R v Storrey 58 Cory J, referring to "reasonable and probable grounds" in section 450(1) of the Canadian Criminal Code, 59 held that the Code required that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest.
Those grounds must, in addition, be justifiable from an objective point of view. In other words, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest.
However, the police need not demonstrate anything more than reasonable and probable grounds. It is important to note that Cory J emphasised that the police would not be required to establish a prima facie case for conviction before making the arrest. 60

Distinguishing the tort of abuse of process
Apart from false imprisonment or malicious prosecution there is, under the English common law, a tort of abuse of process. This is distinct from the "shameful misuse of coercive power", 61 or "a gross abuse of power" 62 encountered in the unlawful conduct of police officers in arrests and detention cases bordering on the tort of misfeasance in public office. But like malicious prosecution, the abuse of process In its modern form, the tort of abuse of process would lie where it is shown that the defendant had set proceedings in motion with the object of achieving a purpose which was not within the scope of the process. Although the action is related to malicious prosecution, it is distinct from it. The action does not, like malicious prosecution, depend on the proceedings being completed, concluded or withdrawn before it can be instituted. 64 It is an action initiated where "one who uses a legal process, whether criminal or civil against another primarily to accomplish a purpose for which it is not designed, is subject to liability to the other for harm caused by the abuse of process". 65 Quite recently the English Court of Appeal restated the tort of abuse of process and extensively reviewed its relationship with the law of malicious prosecution. In Land Securities Ltd v Fladgate Fielder, 66 the plaintiffs claimed damages against the defendants for the tort of abuse of process arising out of an application for judicial review made by the defendants of a decision by the Westminster City Council granting the plaintiffs planning permission. They alleged that the defendants were liable for substantial damages for the tort for threatening and bringing the judicial review proceedings, which was not to obtain relief against the planning authority by quashing the permission, but in order to put pressure on the claimants to assist the defendants to relocate their offices. The question before the Court of Appeal was whether or not the plaintiffs' case was sufficiently arguable to be allowed to proceed to trial. Council. 71 Secondly, essential ingredients for a claim of malicious prosecution were the absence of reasonable or probable cause and that the proceedings had ended in favour of the person maliciously prosecuted. Thirdly, the only cases in which the tort of abuse of process had been successfully invoked concerned a blatant misuse of a particular process, namely arrest and execution, within the existing proceedings.
Fourthly, in cases of abuse of process, it was irrelevant whether or not there was reasonable or probable cause for the proceedings or in whose favour they ended, or whether they had ended at all. Fifthly, statements in English authorities describing a broader application of the test of abuse of process were all obiter. 72 Sixthly, as to the broader statements of principle, there was no clearly accepted approach for identifying what was sufficiently collateral to establish the tort of abuse of process. 73 The court refrained from defining precisely the limits of the tort of abuse of process.
In any event, even if the tort could be committed outside circumstances of compulsion by arrest, imprisonment or other forms of duress, there were no heads of damage that had to exist for the invocation of the tort of malicious prosecution.

As Etherton LJ explained:
A different conclusion would not only go beyond the factual context of Grainger's case and Gilding's case, but would be inconsistent with the refusal of the House of Lords in Gregory's case to extend the tort of malicious prosecution to all civil proceedings. 74 Further, it made no sense severely to limit the cause of action of malicious prosecution, an essential ingredient of which was that the proceedings had been 68 Namely, where the defendant's action amounts to a deprivation of the plaintiff's liberty, making a person incur expense, and where a person's fair fame and credit are injured. ... if the plaintiff merely proved that, and gave no evidence of the circumstances under which the prosecution was instituted, it seems that the plaintiff would fail; and a judge could not be asked, without some evidence of the circumstances under which the prosecution was instituted, to say that there was an absence of reasonable and probable cause. 79 The Master of the Rolls concluded that the evidence which must determine the question of whether or not there was reasonable and probable cause must consist of the existing facts or the circumstances under which the prosecution was instituted.
Bowen LJ agreed. According to him, when mere innocence wears that aspect, it is because the fact of innocence involves other circumstances which show that there was want of reasonable and probable cause. The Lord Justice cited as an instance where the prosecutor must know whether the story which he is telling against the man whom he is prosecuting is false or true. In such a situation, if the accused is innocent, it follows that the prosecutor must be telling a falsehood, and there must be a want of reasonable and probable cause. On the other handif the circumstances proved are such as that the prosecutor must know whether the accused is guilty or innocent, if he exercises reasonable care, it is only an identical proposition to infer that if the accused is innocent there must have been want of reasonable and probable cause. Except in cases of that kind, it never is true that mere innocence is proof of want of probable cause. It must be innocence accompanied by such circumstances as raise the presumption that there was a want of reasonable and probable cause. 80 The next point is that whether or not there is a reasonable and probable cause depends upon the materials which were in possession of the prosecutor at the time the prosecution was instituted and, further, upon whether or not those materials were carefully collected and objectively assessed. Addressing these issues in Abrath 81 Bowen LJ said: Now there might be two views of the materials which were in the possession of the prosecution. It may be said that the materials were evidently untrustworthy or that they were obviously trustworthy, according as the one view or the other is taken of the facts. It was held in A v NSW para 56 that the absence of reasonable and probable cause is to be determined on the material the prosecution had available when deciding whether to commence or maintain the prosecution, not whatever material may subsequently come to light. Further, "even if a prosecutor was shown to have initiated or maintained a prosecution maliciously (for example, because of animus towards the person accused) and the prosecution fails, an action for malicious prosecution should not lie where the material before the prosecutor at the time of initiating or maintaining the charge both persuaded the prosecutor that laying a charge was proper, and would have been objectively assessed as warranting the laying of a charge." See also Zreika v State of New South Wales 2011 NSWDC 67 para 134 (Zreika). 83 As Keon J held in Maharaj v Government of RSA 2012 ZAKZDHC 6 paras 7-8, "the crucial issue is what information and evidence was available to the State when the decision to prosecute was taken and whether that, and any inferences to be drawn therefrom, were sufficient to at least prima facie point to the commission of an offence by the plaintiff. Accordingly, the impressions as to the credibility of the evidence and whether the allegations the various state witnesses deposed to may ultimately be proved are not relevant to the present trial". 84 A v NSW para 58. In Zreika para 236, Judge Walmsley postulated that available material is to be identified as to whether it might be regarded as "inculpatory or exculpatory".

5
The Australian ten-point guideline conditions which must be met in order for an officer to have reasonable and probable cause for prosecuting a person for an offence. To succeed on the issue of reasonable and probable cause the plaintiff had to establish that one or more of these conditions did not exist. They are: (1) the prosecutor must believe that the accused is probably guilty of the offence.
(2) This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise. (3) The information whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true. (4) This belief must be based upon reasonable grounds. (5) The information possessed by the prosecutor and reasonably believed by him to be true must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty. Repeating what he said in Sharp, Dixon J observed that: "when it is not disputed that the accuser believed in the truth of the charge, or considered its truth so likely that a prosecution ought to take place, and no question arises as to the materials upon which his opinion was founded, it is a question for the court to decide whether the grounds which actuated him suffice to constitute reasonable and probable cause".
view that there was a proper case for prosecution, or had proved that the prosecutor formed that view on an insufficient basis. 92 It was held in A v NSW that in evaluating the material that was available to the prosecutor arising from the investigations, the objective sufficiency of the material must be considered by the prosecutor and assessed in the light of all the facts of the particular case. With regard to the "objective standard of sufficiency", the majority observed: because the question in any particular case is ultimately one of fact, little useful guidance is to be had from decisions in other cases about other facts. Rather, the resolution of the question will most often depend upon identifying what it is that the plaintiff asserts to be deficient about material upon which the defendant acted in instituting or maintaining the prosecution. That is the assertion which may, we do not say must, depend upon evidence demonstrating that further inquiry should have been made. 93 The majority, pondering over the earlier question it had posed as to whether or not the grounds which actuated the prosecutor sufficed to constitute reasonable and probable cause, held: for like reasons it cannot be stated, as a general and inflexible rule, that a prosecutor acts without reasonable and probable cause in prosecuting the crime on the basis of only the uncorroborated statements of the person alleged to be the victim of the accused's conduct. Even if at trial of the offence it would be expected that some form of corroboration warning be given to the jury, the question of absence of reasonable and probable cause is not to be decided according to such a rule. 94 The objective sufficiency of the material considered by the prosecutor must be assessed in the light of all of the facts of the particular case. The material to be considered cannot be limited to that which is admissible in evidence. A reasonable basis for a decision by an investigating police officer to lay a charge is not to be equated with a magistrate's decision as to committal for trial or a trial judge's ruling on whether there is a case to go to the jury. The hypothetical reasonable prosecutor is not a judge or barrister specialising in criminal law. Neither is it necessary that the prosecutor be assured that all necessary witnesses will attend the hearing and give evidence in accordance with the information provided by them. The prosecutor may not be a public official. The decision to charge will often be taken promptly, if not immediately, in all kinds of circumstances. Investigations can be expected to continue where necessary, at least up to preparation of the brief of evidence for committal. That is not to suggest that these topics are not properly to be considered under this head. A practical assessment is required. that in making an assessment for the purpose of making a sound judgment as to whether to charge an individual with a criminal offence, a prosecutor is entitled to have regard to all information held. "This includes both information which constitutes admissible evidence in a criminal trial and other information which, though not admissible as evidence, may nonetheless have value in evaluating or assessing the reliability of evidence that is admissible." His Honour continued: "It is a commonplace fact that 'police intelligence' and circumstantial evidence are, in combination, utilised in the investigation stage to further investigations and may be examined in the pre-prosecution stage in the decision-making process leading to the laying of criminal charges." absence of reasonable and probable cause could also be described in that kind of case as the absence of a belief in the guilt of the plaintiff. 103 In terms of the sixth of the leading beacons of the tort, the court identified three critical points: a) It is the negative proposition that must be established: more probably than not the defendant prosecutor acted without reasonable and probable cause.

b)
That proposition may be established in either or both of two ways: the defendant prosecutor did not "honestly believe" the case that was instituted or maintained or the defendant prosecutor had no sufficient basis for such an honest belief. In their ninth guideline, the majority addressed the issue of the objective element of reasonable and probable cause, which it said is sometimes couched in terms of the "ordinarily prudent and cautious man, placed in the position of the accuser" or explained by reference to "evidence that persons of reasonably sound judgment would regard as sufficient for launching a prosecution". Or the question can be said to be "whether a reasonable man might draw the inference, from the facts known to him, that the accused was guilty". 108 Finally, the court stated that to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law -an "illegitimate or oblique motive". That improper purpose must be the sole or dominant purpose actuating the prosecutor. 109 Lastly, the majority held that there was no basis upon which the Court of Appeal

Continuing or maintaining the prosecution
In Landini v State of New South Wales 118 Hall J held that the element of reasonable and probable cause in the tort of malicious prosecution is not a purely objective one: It is not a concept regardless of the knowledge or belief of the prosecutor that there was reasonable and probable cause for a charge to be laid but also involves the issue as to whether the prosecutor had reasonable and probable cause to do what he did. 119 Although two police officers took active steps to maintain the prosecution of the plaintiff in relation to heroin allegedly found in his possession some three years previously, it turned out that these same officers were responsible for planting the In so doing, Mr Knox took active steps to maintain the prosecution of the respondent. This was sufficient to establish the liability of the appellant, which was vicariously liable for a relevant tort committed by the officer. 124 In the more recent case of Zreika v State of New South of Wales 125 it was argued that there were occasions when the police should have stopped the prosecution. In effect, assuming that there was time when they had reasonable and probable cause, that time was finite: as police obtained more and more exculpatory evidence, indicating that they had the wrong person in their custody, they should at each stage have discontinued the proceedings. This argument is supported by the current definition of maintaining prosecution proffered by Simpson J in Hathaway v State of New South of Wales 126 and uninterrupted by the Court of Appeal, which overturned the trial judgment on factual grounds. 127 His Honour held that: Maintaining proceedings is a continuing process. It is conceivable that a prosecutor may act for proper reason (i.e. non-maliciously) or with reasonable and probable cause (or the plaintiff may be unable to prove malice, or the absence of reasonable or probable cause) at the time of institution of proceedings, but, at a later point in the proceedings, and while the proceedings are being maintained, the existence of malice or the absence of reasonable and probable cause may be shown. At any time at which the sole or dominant purpose of maintaining the proceedings becomes an improper (malicious) one, or the prosecutor becomes aware that reasonable and probable cause for the proceedings does not exist, or no longer exists, the proceedings ought to be terminated, or the prosecution is malicious. 128 Judge Walmsley was persuaded that, on a balance of probabilities, the defendant lacked reasonable and probable cause to continue with the prosecution from the first bail hearing onward.  Nelles 192-193. former girlfriend was murdered in 1982. A coroner's inquest brought to light some circumstantial evidence casting suspicion on the plaintiff, but his presence at the scene of the murder was not established. In 1983 the police surreptitiously recorded a conversation concerning the murder between the plaintiff and the victim's father.
The plaintiff speculated about the murderer's conduct and motivations, but explicitly denied having committed it. In 1986 the prosecutor concluded that there was insufficient evidence to charge the plaintiff or anyone else. In 1991 a radio station broadcast allegations linking the plaintiff to the murder. The plaintiff brought an action in defamation against the radio station, a journalist, and a retired police officer. A witness who saw the plaintiff's photograph's in a newspaper article approached the radio station and stated that he recognised the plaintiff's eyes as those of a man he had encountered on the night of the murder. The retired officer showed the witness a photograph of the plaintiff with his eyes covered. The witness affirmed that they were the eyes of the man he had seen: however, when the witness was shown the full photograph, he stated that the plaintiff was not the man he had seen.
The Crown prosecutor then met with the witness and the retired officer. The prosecutor showed the witness eight photographs of the plaintiff and the witness identified one of them as the man he had seen. The prosecutor consulted his superiors and colleagues before charging the plaintiff with first degree murder. At the trial, the witness was not asked to identify the plaintiff. In his closing address to the jury the prosecutor invited the jury to substitute "I" for "he" in the plaintiff's recorded speculations about the murderer's motivation. The plaintiff was found guilty. The Quebec Court of Appeal overturned the conviction on the ground that the verdict was unreasonable, and entered an acquittal. The Court of Appeal held that the identification procedure was seriously flawed, and that the recording of the conversation between the plaintiff and the victim's father was inadmissible under section 24(2) of the Canadian Charter of Rights and Freedoms. The plaintiff then brought an action for malicious prosecution against the Attorney General of Quebec.
The trial judge found that there were no reasonable and probable grounds for laying charges against the plaintiff; that the prosecutor had acted on an improper motive, and the Attorney General was therefore liable. The Attorney General's appeal was allowed by the Court of Appeal. Given the burden of proof in a criminal trial, belief in "probable" guilt means that the prosecutor believes, based on the existing state of affairs that proof beyond a reasonable doubt could be made out in a court of law. The public interest is engaged in a public prosecution and the Crown attorney is duty-bound to act solely in the public interest in making the decision whether to initiate or continue a prosecution.
This decision may not entirely accord with the individual prosecutor's personal views about a case, but Crown counsel must take care not to substitute his or her own views for that of the judge or jury. Furthermore, where the action is taken against a Crown attorney, the inquiry into the prosecutor's subjective state of belief does not properly belong at the third stage of the test. In the context of a public prosecution, the third element necessarily turns on an objective assessment of the existence of sufficient cause. 139 If the court concludes, on the basis of the circumstances known to the prosecutor at the relevant time, that reasonable and probable cause existed to commence or continue a criminal prosecution from an objective standpoint, the criminal process was properly employed, and the inquiry need go no further. If a judge determines that no objective grounds for the prosecution existed at the relevant time, the court must proceed to the next inquiry, into the fourth element of the test for malicious prosecution. 140 On the question of malice, the Supreme Court held that "malice" is a question of fact, requiring evidence that the prosecutor was impelled by an "improper purpose". 141 Accordingly, the malice element of the test will be made out when a court is satisfied on a balance of probabilities that the defendant Crown prosecutor commenced or continued the impugned prosecution with a purpose inconsistent with his or her role as a "minister of justice". totality of the evidence that the prosecutor deliberately intended to subvert or abuse the office of the Attorney General or the process of criminal justice so that he or she exceeded the boundaries of the office of the Attorney General. 142 The need to consider the "totality of all the circumstances" simply meant that a court should review all the evidence related to the prosecutor's state of mind, including any evidence of a lack of belief in the existence of reasonable and probable cause, in deciding whether the prosecution was in fact fuelled by an improper purpose. 143 While the absence of a subjective belief in reasonable and probable cause was relevant to the malice inquiry, it did not equate with malice and did not dispense with the requirement of proof of an improper purpose. 144 By requiring proof of an improper purpose, the malice element ensured that liability would not be imposed in cases where a prosecutor proceeded absent reasonable and probable grounds by reason of incompetence, inexperience, poor judgment, lack of professionalism, laziness, recklessness, honest mistake, negligence or even gross negligence. 145 Malice required the plaintiff to prove that the prosecutor wilfully perverted or abused the office of the Attorney General or the process of criminal justice. The third and fourth elements of the tort must not be conflated. 146

Prosecution instigated with reasonable and probable cause
The facts of Relyant Trading (Pty) Ltd v Shongwe 147 were somewhat bizarre. The plaintiff had been apprehended as the con man who under a credit agreement had taken a computer and subsequently absconded. The debtor had given false names and identity. The plaintiff was accosted by a salesman of the computer dealer and when he came forward with his identity, he was arrested and detained by the police.
He was charged and appeared in court but the charges were later withdrawn. It was a case of mistaken identity. Liability for malicious prosecution depended not only on an "instigation" -a term of "some complexity" -of the prosecution, but also on the absence of reasonable and probable cause and the presence of animus iniuriandi. This must involve an investigation into the state of mind of the dealer's employees and, in particular, the employee who purportedly identified the plaintiff. The liability or otherwise of the defendant would depend on whether or not he had information that led him to believe on objective grounds that the plaintiff was guilty. Here there was the need that persons who had reasonable and probable cause for a prosecution should not be deterred from setting the criminal process in motion against those who they believed had committed offences, even if in so doing they were actuated by indirect and improper motives. 151 The court came to the conclusion that the employee who identified the plaintiff honestly believed that the plaintiff was the person who defrauded her employers. Any reasonable person in her position acting on the information available would have concluded that the plaintiff was probably the person who committed the offence in question. was held that the defendants chose to depose to affidavits for purposes of the criminal complaint not only by making false and distorted allegations but also by omitting to disclose full material facts to the police. They knew that they had no reasonable or probable cause to believe, based on reasonable grounds, that the institution of criminal proceedings was justified, but had an ulterior purpose in instituting those proceedings.

Conclusion
An attempt has been made in this article to identify the boundaries of reasonable and probable cause in malicious prosecution, and reasonable grounds to suspect in the case of unlawful arrest and detention and the tort of abuse of process. The point was made that the requirement of reasonable and probable cause plays such a central role in an action for malicious prosecution that the success of such an action depends largely on there being a lack of reasonable and probable cause for the prosecution among the other three requirements. The presence or absence of reasonable and probable cause more or less dictates whether or not there is any basis for the prosecution and leads the way to the inquiry as to whether there was malice or improper purpose on the part of the prosecutor. Again, whether or not the defendant lacked reasonable and probable cause to instigate, initiate or continue the prosecution depends ultimately on the facts and information carefully collected and objectively assessed, on which the prosecutor based his/her belief that the plaintiff was guilty; it is not the probability that those facts would secure a conviction. Yet the prosecutor is faced with the difficulty in that his/her conduct in this regard is subject to both the subjective and objective tests. In evaluating the material that is available to him/her arising from the investigations, the objective sufficiency of the material must be considered by the prosecutor and assessed in the light of all the facts of the particular case. In effect, his/her belief must be honestly held and founded on reasonable grounds, such that would lead a reasonable person in his/her position to hold a similar belief. It essentially requires the plaintiff to establish a negative, rather than for the defendant to prove the existence of reasonable and probable cause.

SUMMARY
The requirement that the plaintiff in an action for malicious prosecution must prove a lack of reasonable and probable cause to initiate, instigate or continue the prosecution on the part of the instigator or prosecutor is one of the four elements of that cause of action. It is a vital link between the lawfulness of the prosecution and the state of mind of the defendant. Again, whether a prosecution is wrongful or lawful depends on whether there was a reasonable and probable cause coupled with the animus iniuriandi of the defendant in instigating, initiating or continuing it. It is not whether the prosecutor possessed evidence to secure a conviction since that is for the trial court to decide after the conclusion of evidence; but, the honest belief by the prosecutor that, having carefully collected and objectively assessed the available information, the plaintiff was probably guilty of the crime. In coming to that decision the prosecutor must have grappled with both the subjective and objective elements in the exercise of that discretion. The Australian High Court judgment in A v New South Wales 2007 230 CLR 500 (HCA) has brought clarity to this aspect of the problem. However, as this paper contends, the ten-point guidelines enunciated by that court in that case and designed to provide the courts with a seemingly less complicated formula for determining if the prosecutor lacked reasonable and probable cause do not appear to have provided the panacea to the problem. Meanwhile, the distinct nature of the requirement of reasonable and probable cause is made clearer when it is compared with reasonable ground to arrest in the case of wrongful arrest and the tort of abuse of process. Also problematic and equally challenging is identifying where a reasonable and probable cause inquiry stops and malice begins. This is brought out in the attempt by the Supreme Court of Canada to unravel the tension between the proof of the existence of malice and reasonable and probable cause in the law of malicious prosecution in Miazga v Kvello Estate 2009 3 SCR 339 (SCC). The extent to which the guidelines laid down in these recent cases would have resolved the confusion in this field of the law is yet to be realised.

KEYWORDS: Malicious prosecution; instigation or continuation of prosecution;
absence of reasonable and probable cause; whether distinguishable from reasonable ground to suspect; arrest without warrant; whether amounts to abuse of process; proof of animus iniuriandi; whether dependent upon proof of reasonable and probable cause; relevance of objective sufficiency of information available to prosecutor.