In an unprecedented move the former judge president of KwaZulu-Natal, Chiman Patel, is suing the state for R3-million in damages for malicious prosecution on false charges. After experiencing what he believes was an unjustified use of the criminal justice system, Patel has sent a letter of demand to the national director of public prosecutions and others seeking the damages.
This comes ahead of next week’s Judicial Service Commission interviews with candidates for high court positions, including Patel’s vacant post that is in a politically charged judicial division. He asked to be discharged at the end of December last year.
This week Patel declined to discuss the situation until his legal action has reached finality. He is believed to still be recovering from his ordeal.
“It has affected everybody around me,” Patel told the Mail & Guardian, while out of town attending a family wedding. “Please bear with me; I really can’t comment until everything is over.”
According to Patel’s letter of demand, the damages he suffered during his prosecution included embarrassment, impairment of his reputation, humiliation and contumelia (insult to dignity).
Charge of defamation
In 2013 a high court stationery clerk, Lindiwe Nxele, charged Patel with crimen injuria (criminal defamation). She claimed that the judge had insulted her and called her names.
It was an extraordinary case that dragged on without resolution and, to make matters worse, Patel received a summons only a year later to appear in court for the first time.
On December 11 2014 the case against him was withdrawn, with no explanation provided.
The justice department granted his request for early retirement and announced that Patel would be leaving after a three-year tenure with full benefits at the end of last year.
The M&G understands that the matter, together with an apparently uneasy relationship with the province’s political establishment and discontent within the division at Patel’s attempts to reform it, had contributed to his declining health and his subsequent request to retire.
The matter laid bare simmering racial tensions in the province and raised questions about the independence of the National Prosecuting Authority (NPA) and its provincial director of public prosecutions, Moipone Noko – especially as there have been long-held concerns about apparent attempts to load the division with judges sympathetic to President Jacob Zuma.
It was suggested to the M&G at the time of the withdrawal of the charges that if Zuma’s fraud and corruption charges were to be reinstated the case would go back to the KwaZulu-Natal division, where a sympathetic judge president may be amenable to appointing an equally sympathetic adjudicator.
In his letter of demand for the damages, Patel’s lawyers said: “Service of the summons relating to the criminal proceedings was withheld until alternatively effected on October 23 2014, the date of the Diwali festival, probably the most auspicious occasion for adherents of the Hindu religion, which include our client.”
Patel’s apparent attempts to increase the efficiency of his division had also caused strife around him, according to legal staff sympathetic to his plight. And although those who pursued his prosecution might have hoped he would go away quietly, his case is now likely to head to court in a civil claim.
The letter of demand was sent to prosecutions head Mxolisi Nxasana (who is facing a commission of inquiry convened by Zuma into his own suitability for office), as well as to Noko, to Minister of Justice and Constitutional Development Michael Masutha, and to the complainant in the case, Nxele.
“We have been instructed to demand, as we hereby do, payment, jointly and severally from you, of such damages within one month from the date hereof,” states the letter of demand.
Letter of demand
Patel’s lawyer, Craig Woolley, told the M&G this week that the letter of demand was served on March?4. Although a month has already passed, no payment has been made. There has also been no response from those who received the letter of demand.
Unless payment is made shortly, a summons will be issued and civil action will commence in the Durban high court, said Woolley.
Although he has been notified that his request for certain documents in line with the Promotion of Access to Information Act has been received, the letter of demand appears to have been ignored by the respondents.
“We are instructed that on or about October 28 2013, Lindiwe Irene Nxele wrongfully and maliciously set the law in motion by laying a false charge of crimen injuria against our client,” Patel’s letter of demand states.
The letter of demand says that Nxele had alleged that Patel shouted at and insulted her, pointing fingers at her in front of court manager Karlien Marais and another member of staff, Devika Morar.
‘All sorts of names’
Nxele had claimed Patel called her “all sorts of names, nonsense, trash, rubbish and how useless [Nxele] is”, without affording her an opportunity to explain herself. As a result, Nxele alleged that she felt “discriminated [against], victimised, vulnerable and useless”.
Nxele also alleged she had felt threatened by Patel, who she said had imposed his power over her because she is a black female. This had made her feel personally degraded and Nxele alleged she felt that her rights were “unfairly” violated by the judge president.
Consequent to Nxele laying what Patel claims was a “false charge”, the offices of the national prosecutions head, Noko and an unknown prosecutor in the NPA had “wrongfully and maliciously prosecuted our client on a false charge of crimen injuria”, the letter of demand stated.
According to the letter, Nxele had no reasonable or probable cause for laying the charges; neither did she have any reasonable belief in the truth of the information.
There had not been sufficient or admissible evidence to provide a reasonable prospect of a successful prosecution of Patel on a charge of crimen injuria, the letter of demand stated.
Patel’s lawyer in the criminal case against Nxele, advocate Marumo Moerane SC, informed the court when the charges were withdrawn last year that he wished to place on record his “disgust and utter condemnation” of the decision to institute criminal proceedings against Patel.
Farcical sequence of events
The M&G reported at the time that when the crimen injuria charges against Patel were dropped, it was not before a farcical sequence of events had taken place in court.
Three members of the original prosecuting team were not present in court, and senior control prosecutor Barend Groen withdrew the charges and was forced to field questions from an agitated acting regional court president, Sharon Marks.
None of the prosecutors involved in the case had informed Marks of their intention not to appear in court, and she had not been given official written confirmation of the prosecuting authority’s decision to withdraw the charges against Patel.
In a startling admission, Groen told the court he had never read the docket.
“This office had nothing to do with this prosecution,” he said.
Marks told the court she would lodge a complaint regarding the case with the office of the national director of public prosecutions.
And although Patel will probably testify in his civil claim in court, Woolley said he believed the former judge president has a solid case.
“I’ve looked at all the statements; I was very surprised that any decision was taken to take this matter further,” he said.
“There is really very little in the statements that suggests that charges should have been laid.”
Noko, KwaZulu-Natal’s chief prosecutor, first came under scrutiny in 2012 when, two weeks into her new job, she withdrew fraud and corruption charges against key ANC figures Mike Mabuyakhulu and Peggy Nkonyeni in a R144-million corruption and racketeering trial, without explanation.
This story is from the Mail & Guardian print edition and the NPA had not responded to requests for comment by the time of going to print.