Publication: Wikipedia Issued: Date: 2009-04-15 Reporter:

Abuse of Process

 

Publication 

Wikipedia
Date

2009-04-15

Web Link

en.wikipedia.org


Abuse of process is a common law *1 intentional tort. It is to be distinguished from malicious prosecution, another type of tort that involves misuse of the public right of access to the courts.

The elements of a valid cause of action for abuse of process in most common law jurisdictions are as follows: it is the malicious and deliberate misuse or perversion of regularly issued court process (civil or criminal) not justified by the underlying legal action *2. "Process" in this context is used in the same sense as in "service of process," where "process" refers to an official summons or other notice issued from a court. The person who abuses process is interested only in accomplishing some improper purpose that is collateral to the proper object of the process *3 and that offends justice, such as an unjustified arrest *4 or an unfounded criminal prosecution *5. Subpoenas to testify, attachments of property, executions on property, garnishments, and other provisional remedies are among the types of "process" considered to be capable of abuse.

With acknowledgements to Wikipedia.


*1       So it derives from the common law of jurisdiction, i.e. South Africa, not Hong Kong.


*2      The underlying legal action was justified. That is a fact. That led to the fact that the indictment was to served on the Accused soon after clearing up other relevant legal issues. The only matter was timing: a few days before until a few after a certain day.

That McCarthy arranged to have the indictment served a few days after was probably inline with all reasonable thinking on the matter.

I myself expected it to be done in the first week of January 2008. I was slightly surprised and so were a few others, that the indictment was served before the New Year and not early in the New Year.

But just because he had it served after a certain day and along the lines of the wishful thinking of his friend, Ngcuka, does not amount to an abuse of process.


*3      It can hardly be said, let alone proved by the NPA that McCarthy was interested only in accomplishing some improper purpose that was collateral to the proper object of the process.

All indications are that he wanted to serve the indictment on the Accused because there was a solid prima facie case against them.

The timing of the indictment is almost completely collateral to the process itself.

Furthermore, in this case the period of the timing is just a few days. It cannot have affected whether the Accused could get a fair trial or not, which is the only true test of abuse of process.

In any case, in this case McCarthy could have caused the indictment to be served before Polokwane.

Doing so before Polokwane would have been interpreted as a act of bad faith and probably by the Accused and their supports as an abuse.

He elected to do so after Polokwane when it couldn't logically have affected the Accused in any wrongful way.

So McCarthy, besides being a twerp and an idiotic donkey, ended up doing the right thing, not the wrong thing. He would have done better to leave serving the indictment until the first or second week of January, but that is largely irrelevant.


*4      There was no unjustified arrest.

There was no arrest at all.

Although there could have been.


*5      There was no unfounded criminal prosecution.

Indeed there was a very well founded criminal prosecution.

On the other hand the actions of Mokotedi Mphse and Willie Hofmeyr to find a reason, any reason, to get these criminals off the hook just beggar belief.

That the timing issue offends their sense of justice is just not believable. It is incredible.

And it certainly doesn't offend the senses of justice of the vast majority of reasonable people.


Indeed it is an abuse of process as it is clearly for an improper purpose.