- The attorney’s remarks about a clerk’s missing wedding ring triggered a harassment application.
- The protection order failed, but the court found the clerk had reasonable grounds to approach the law.
- The appeal court dismissed the R400 000 malicious prosecution claim with costs.
A comment about a missing wedding ring inside a magistrates’ court office has resulted in years of litigation and, ultimately, a failed R400 000 lawsuit.
While attending to official business, attorney Manki Oupa Thabethe noticed that clerk Aletta Van Der Bank was not wearing her wedding band. He asked where her “stop nonsense” was, which was his term for a ring, and remarked that without it, people might think she was “available for marriage.”
What he saw as light workplace banter, she experienced as personal and inappropriate. By the next day, the police were serving him with a protection order application.
That moment, small and awkward as it seemed, set off two separate court battles. The High Courtin Polokwane has now ruled that the clerk had not acted maliciously when she reported him.
From office exchange to harassment proceedings
The incident occurred on 21 September 2020 at the Mokopane Magistrates’ Court. Thabethe, a practising attorney since 2016 and previously a district court magistrate for 23 years, had gone to follow up on a default judgment.
According to his own version, he pointed out that Van der Bank’s ring was missing, referred to it as her “stop nonsense,” and speculated that COVID and sanitiser might make people appear unmarried and therefore “available.” She replied that even people with rings sometimes did “stout things.” The conversation ended there.
Van der Bank later testified that the exchange left her uncomfortable and embarrassed in her own workplace. She said she felt she had to defend herself and worried about further interactions. She consulted an attorney and sought protection under the Protection from Harassment Act. She was medically booked off work for stress.
In the harassment court, however, the application did not succeed. The presiding officer found the incident was a once-off conversation and did not amount to harassment in law. The court explained that the conduct complained of must be viewed reasonably and that the law is not meant to punish past conduct, but rather to protect against the potential of future harm.
In its conclusion, the court stated, “I do not think that the conduct of the respondent on the date of the incident amounted to harassment.” Still, the court refused to penalise her with costs, holding that she had not acted “frivolously, vexatiously, or unreasonably.”
The damages claim
After the protection order failed, Thabethe launched a civil action for damages, claiming R400 000 for harm to his dignity, reputation, and comfort. He alleged that Van der Bank had maliciously and wrongfully set the law in motion against him. Both parties testified and were cross-examined in the trial court. His claim was dismissed. He appealed.
The appeal court emphasised that malicious prosecution claims carry a heavy burden. It is not enough to show that the earlier case failed. A claimant must prove the other party acted without reasonable cause and with malice, meaning an intention to injure and knowledge that they were acting wrongfully.
The court quoted authority, stating that animus injuriandi includes not only the intention to injure, but also consciousness of wrongfulness. The court further clarified that negligence on the part of the defendant, or even gross negligence, will not suffice. The question was whether Van Der Bank knowingly lied or set out to harm him.
What the High Court found
Acting Judge KL Pillay found no evidence of malice. The court accepted that Van der Bank genuinely felt uncomfortable and sought legal advice and protection. Those steps were consistent with someone trying to safeguard herself, not someone abusing the legal system.
The judge was also critical of the context of the exchange, describing it as unfathomable that an attorney attending to official business would initiate a personal discussion about a clerk’s marital status. The remarks had nothing to do with work and crossed professional boundaries.
Even though the harassment application failed, that did not transform her actions into bad faith. Without proof of intent to harm, the claim for malicious prosecution could not succeed. The court held that the appellant failed to establish, on a balance of probabilities, that the respondent had acted with malicious intent.
Outcome
The appeal was dismissed. Costs were awarded to Van der Bank on the party and party scale, including counsel’s fees.
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