KZN prosecutions boss denies malicious prosecution claim

2017-04-04 21:39


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Durban – KwaZulu-Natal prosecutions head Moipone Noko has denied acting “maliciously” when she decided to prosecute then KwaZulu-Natal Judge President Chiman Patel for crimen injuria.

“The fact that the charges were withdrawn shows we did not act maliciously,” she said in her evidence in a civil trial in the Durban High Court.

Patel is suing the State for R3 million for being charged criminally and appearing in court. It stemmed from an incident involving a clerk in his chambers in 2013.

He was summonsed to appear in court a year later. The charge was withdrawn two months later on the day the trial was to start, without explanation.

Abuse of power

Patel, in his evidence before Judge Aubrey Ledwaba, described how he had been forced to take early retirement because of the humiliation of being charged criminally.

“I became a virtual recluse. I was depressed. It had a severe impact on my health. I hope one day that this will all just be a bad dream,” he said when he testified last year.

The trial, in which Noko is accused of “egregious abuse of power”, resumed this week.

Patel summoned stationery clerk Lindiwe Nxele and her superior Karlien Marais to his office after receiving a complaint from his secretary, Roma Morar, that Nxele had been rude to her on the telephone and was not doing her job properly.

What happened in the office is a matter of dispute. Nxele claims Patel shouted at her, pointed his finger at her and called her “rubbish”.

Patel, Morar and Marais say he spoke loudly but did not shout. He allegedly asked “why do I have to put up with this rubbish?” referring to having to deal with an administrative issue.

On Monday, Noko insisted that speaking loudly was the same as “shouting and screaming”.

No prospect of success

Saying someone was not doing their job properly was the same as accusing them of being incompetent, she argued.

“It is just semantics,” she said.

“You can never say someone’s work is rubbish. It is humiliating and demeaning, a violation of one’s dignity.”

Noko said she had “seen corroboration” in the three witness statements and had recommended to the then National Director of Public Prosecutions, Mxolisi Nxasana, that Patel be prosecuted.

Initially, Nxasana proposed that the matter be sent to  the Judicial Service Commission, or to mediation, but Nxele declined and the decision was taken to prosecute.

Noko said she appointed a three-person prosecution team which, after interviewing the witnesses again, said there was no prospect of success. To continue would be malicious and “it would open the doors to claims against us”.

Under cross-examination by Patel’s advocate Vinay Gajoo, she said Nxele had changed her tune several times. The charges had to be withdrawn because Nxele no longer claimed her dignity had been impaired. This was the “main element” of the charge.

She however conceded that afterwards Nxele had written to the Department of Justice claiming “he (Judge Patel) will never take a person seriously, especially a black woman from a disadvantaged background”.

Noko denied being influenced by “a feeling of sympathy” for Nxele.


She insisted that use of the word “rubbish” was derogatory in the circumstances. It was made worse, according to case law, by the fact that Patel was an Indian man and Nxele a black woman.

Gajoo accused Noko of demeaning Patel by calling him “Mr Patel” in her memorandum to Nxasana.

“There is nothing wrong or illegal in that,” she retorted.

“I suggest that it is open to a dishonest prosecutor to manipulate the use of discretion when deciding whether or not to prosecute,” Gajoo said.

“We do not do that. We have integrity. If you dispute that you need to prove it,” Noko responded.

She agreed that the contents of her memorandum were not word for word what witnesses had said in their statements, but that “it was just the gist of it”.

The case continues this week and judgment is expected to be reserved.

Read more on:    durban  |  crime

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