[175] It is clear that the matter before court raises this novel and complex issue, and one cannot be dissuaded to decide an important issue merely because it is not recognized. It is therefore safe to say that it is implicit in the case that the plaintiff’s common law has to be developed beyond the existing precedent. The answer to the first leg would be in the affirmative regarding the case. plaintiff’s [176] This leads us to the second leg of this enquiry, and that is how such development is to take place. This requirement is calling upon the court to establish a workable standard for continuation of prosecution in circumstances where it appears it has degenerated to the realms of the malicious. [177] In my view, a workable standard for continuation of malicious prosecution can easily be garnered from the elements that must be shown to prove the initiation of a malicious prosecution. Thus, the standard for continuing a malicious prosecution would be: That the defendant actually instigated/ instituted or continued / maintained the ‘(i) criminal proceedings; ( my addition) (ii) Without reasonable and probable cause; and that (iii) the instigation or continuation of the criminal proceedings was actuated by an indirect or improper motive (malice) and; ( my addition) (iv) That the proceedings were terminated in his favour; and that (v) He suffered loss and damage.’ [178] The enquiry is thus if probable cause exits initially, but during the course of the criminal prosecution it becomes clear that there is no probable cause to continue the action. Is there any liability when a party maintains the action thereafter? This question is one of the issues raised in the pleadings and the evidence of the plaintiff and cannot be left unresolved. [179] This question has been addressed in the case of Hathaway v State of New South Wales and the court held that: proceedings is a continuing process. It is conceivable that a ‘Maintaining prosecutor may act for proper reason (i.e. non-maliciously) or with reasonable and
[175] It is clear that the matter before court raises this novel and complex issue, and one cannot be dissuaded to decide an important issue merely because it is not recognized. It is therefore safe to say that it is implicit in the plaintiff’s case that the common law has to be developed beyond the existing precedent. The answer to the first leg would be in the affirmative regarding the plaintiff’s case. [176] This leads us to the second leg of this enquiry, and that is how such development is to take place. This requirement is calling upon the court to establish a workable standard for continuation of prosecution in circumstances where it appears it has degenerated to the realms of the malicious. [177] In my view, a workable standard for continuation of malicious prosecution can easily be garnered from the elements that must be shown to prove the initiation of a malicious prosecution. Thus, the standard for continuing a malicious prosecution would be: ‘(i) That the defendant actually instigated/ instituted or continued / maintained the criminal proceedings; ( my addition) (ii) Without reasonable and probable cause; and that (iii) the instigation or continuation of the criminal proceedings was actuated by an indirect or improper motive (malice) and; ( my addition) (iv) That the proceedings were terminated in his favour; and that (v) He suffered loss and damage.’ [178] The enquiry is thus if probable cause exits initially, but during the course of the criminal prosecution it becomes clear that there is no probable cause to continue the action. Is there any liability when a party maintains the action thereafter? This question is one of the issues raised in the pleadings and the evidence of the plaintiff and cannot be left unresolved. [179] This question has been addressed in the case of Hathaway v State of New South Wales and the court 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