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Barend B.
Barend B., Legal Consultant
Category: South Africa Law
Satisfied Customers: 1356
Experience:  BLC LLB (Pret) LLM (Augsburg)
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Second opinion] - is malicious prosecution where somebody

Customer Question

Second opinion] - hi is malicious prosecution where somebody has you arrested for their own benefit a criminal offence?
JA: Since laws vary from place to place, what state is this in? And when did this happen?
Customer: south africa
JA: Have you talked to a lawyer yet?
Customer: yes and no
JA: Anything else you want the lawyer to know before I connect you?
Customer: proving crimen injuria and the possible claim manipulating an intoxicated person to make false claims
Submitted: 9 months ago.
Category: South Africa Law
Customer: replied 9 months ago.
Hi thr,I didn't ask the right questions. here's the scenario"Jane" is drunk out of her mind and on drugs and starts smashing things at "Bobs" apartment because she is feeling emotionally rejected. Jane cuts herself badly and Bob tries to get her to hospital. She repeatedly attacks him and and he tries to subdue her with minimum force. After locking herself in a room she smashes everything inside it and damages herself more, hand lacerations. Bob kicks the door open a few hours later, does not interfere with her in any way and she exits and then tells John the neighbour that Bob had beaten her.John the neighbour has financial interest in seeing Bob's demise because he stands to profit if Bob is evicted. John calls the landlord Frank and tells the him that Bob beat Jane and Bob broke everything in the apartment. John also encourages Jane in a highly compromised mental state to also lay criminal charges of assault.Bob is arrested for assault and malicious damage to property. Spends two days in jail. is freed on bail with condition not to interfere/contact Jane.These are the criminal charges Bob wants to lay against Jane as the facts and witnesses can all easily prove that Bob was illegally arrested. Bob is also very well known member of the community and John has deliberately spread this false story that has had a horrific effect on his life, future work, reputation, friend base, peer relationships, and his companies have take an enormous knock as a result.THESE ARE THE CRIMINAL CHARGES BOB WANTS TO LAY AGAINST JANE: PLS ADVISE ONE EACH
1. Crimen Injuria
2. Malicious damages to property
3. Assault
4. Interdict + protection order
5. Giving false testimony leading to Bobs arrest
6. Intimidation
7. Extortion (threatening damages, injury + trauma using criminal charges as leverage)Civil charges will include: Please advise on each?1. Defamation (How to measure the quantum?)
2. Loss of income
3. Loss of future earnings (quantum?)
4. Loss of workplace (potential)
5. Legal fees
6. Actual damages (I fixed the windows)
7. General damages for impairment of dignity, loss of freedom and pain and suffering (quantum)These are the criminal charges Bob wants to lay against John:CRIMINAL CHARGES AGAINST JOHN- Crimen Injuria- making false statements to police (?)- manipulating someone (not of sane mind) into make false statements to the police (?)- Bob wants to add John to the illegal arrest damages claim against SAPS re his statements to Frank that lead to Bobs illegal arrest. Bob doesn't know if John gave a statement to police but does know that Franks was based on what John had told him??- get interdict/protection order preventing contact/interference..?- John also locked Bob inside before the police came (false imprisonment?)CIVIL CHARGES AGAINST JOHNanything and everything imaginable..? pls advise
Expert:  Barend B. replied 9 months ago.

Good morning,

Please see my comments on the previous question.

As far as the criminal charges relates to Jane, there seems to be enough evidence to substantiate all of them (except a protection order and interdict is not a criminal charge). John could face crimen injuria and perjury charges as well.

The Civil claims will on the one hand be calculated by actual damages such as actual damages and costs of repair, actual loss of income. Future loss of income and potential loss of workplace will have to be substantiated by evidence and will have to be calculated by an actuary to carry any weight. Defamation or the spreading of injurious falsehoods will depend on your standing in the community and recent court decisions in similar circumstances. There are no fixed amounts and each case is determined on its own merits. your attorney will be suited to advise you on the quantum. The same applies to the general damages.

As mentioned before, Crimen injuria and perjury charges against John should succeed. The manipulation charge in my opinion will not succeed. You should be able to get a protection order, and you should be able to claim damages for false imprisonment. The same civil claims as against Jane can also be made against John, except those that relate to the assault and damage to property.



Customer: replied 9 months ago.
Thank you for your considered reply. It is useful to me. I will come back to you asap with some follow up questions and will rate you as soon as we're done. Just very busy this morn. Thanks chat a bit later
Expert:  Barend B. replied 9 months ago.

No problem.



Customer: replied 9 months ago.
Thanks. what does one need to prove:A. intimidationB. Extortion/blackmial or attempted extortion? ie if Bob receives a lawyers letter from Jane saying a damages claim is coming (injuries + emtional trauma) but that Jane is not going "to interfere" with the states case against Bob (ie not drop the charges at this stage as leverage for negotiating damages), surely this is an attempt at extortion if Jane knows that the criminal charges have been contrived for financial gain?
Customer: replied 9 months ago.
I have had no answer to the above. would you mind please getting back to me? do i first need to rate you or what is the issue? thanks for explaining.Best regards
Expert:  Barend B. replied 9 months ago.

Good afternoon,

My apologies for only reverting now. I've just had a hectic day and no earlier opportunity to revert arose.

With intimidation there needs to be a threat to make someone fear for injury or other harm.

I don't think the lawyer's letter would constitute extortion or blackmail. There has to be more direct evidence, in other words if the lawyer's letter said that Jane would withdraw the charges if you pay a certain amount, that could amount to extortion.



Customer: replied 9 months ago.
Thanks for this, understood and appreciated. One thing the lawyers have done, under instruction from Jane, is said if Bob gives a commitment to pay up coming medical bills (prior to Jane getting a quote for them) then this would reduce Jane's damages claim. Is that extortion? as there is a clear quid pro quo that can be linked to money, and a threat (although implied) that the damages claim will be higher if Bob doesn't pay these bills. Could you please advise re extortion?
I would like them to take any bait in this regard so if you have a strategy for how to extract what I need in order to lay a charge of extortion I'd appreciate it. As their intentions are clear to a reasonable persons reading of their letter.
Customer: replied 9 months ago.
Hi I received rating request but no answer to my last question. I will rate you as excellent once answered as I found your previous answers very helpful and to the point. thanks