Civil Procedure

Mala Fide

Latin for "bad faith." Acting with knowledge that one's conduct is wrong, unlawful, or will cause harm. Contrasted with bona fide (good faith).

Legal Definition

In South African law, mala fide (bad faith) is relevant in multiple contexts: a mala fide possessor of property (e.g., a thief) has no claim for improvements; mala fide misrepresentation in contracts can lead to rescission and delictual damages; mala fide administrative action can result in adverse costs orders and personal liability for officials. Good faith (bona fides) is often a mitigating factor; bad faith is typically aggravating.

📖 Constitutional / Statutory Basis: Section 33 (just administrative action — bad faith excluded)

Practical Example

A seller knowingly misrepresents the defects in a property to the buyer. The seller's mala fide misrepresentation entitles the buyer to rescind the contract and claim delictual damages.

Frequently Asked Questions

Does mala fide conduct affect prescription in South Africa?

Yes — the Prescription Act provides that prescription does not run against a creditor who does not know the identity of the debtor. However, if the creditor's ignorance is due to the debtor's fraud (mala fide concealment), courts have found that prescription does not run until the creditor discovers the fraud.

Can a court award punitive costs for mala fide conduct in South Africa?

Yes — courts may order a party who acted mala fide (in litigation or in the underlying dispute) to pay costs on the attorney-client scale (full indemnity costs), which is a significant financial penalty beyond the standard party-party costs order.

Related Terms

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