Ntombela v Minister of Police (23541/2018) [2025] ZAGPJHC 1064 (24 October 2025)

Case Note

Ntombela Bongani v Minister of Police, High Court of South Africa, Gauteng Division, Johannesburg, Appeal Case No 146486/A2024; JHC Case No 23541/2018 (24 October 2025)

Reportability

This judgment is reportable. It directly addresses recurrent and unsettled questions in South African delict and public law concerning when a “debt” in claims for wrongful arrest and detention becomes “due” for purposes of section 3(2)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002. The court engages with conflicting High Court and Supreme Court of Appeal authority, and situates the analysis within recent Constitutional Court guidance on prescription and knowledge requirements. The competing approaches to whether wrongful arrest and detention constitute a continuous wrong, or whether they yield distinct causes of action accruing at arrest and on each day of detention, have substantial practical consequences for time-bar notices and prescription, making the judgment of general importance.

The case is also significant because the majority judgment clarifies the scope of a trial court’s discretion under Uniform Rule 41 to refuse withdrawal of an application already set down, particularly where withdrawal would produce an unjust result in the face of a conceded claim and available condonation. It confirms that practice directions do not oust the trial court’s power to determine a condonation application at the outset of trial where justice and efficiency require it.

Finally, the judgment is of interest to other judges as it reconciles procedural fairness, statutory purpose, and access to courts. It provides concrete guidance on section 4 service under the Institution Act, the effect of failure to replicate to a special plea (Uniform Rule 25), the content of the condonation enquiry under section 3(4), and the appropriate approach to general damages for extended unlawful detention, drawing from De Klerk v Minister of Police.

Cases Cited

Truter and Another v Deysel 2006 (4) SA 168 (SCA)

Minister of Finance v Gore NO 2007 (1) SA 111 (SCA)

Lemue v Zwartbooi (1896) 13 SC 403

Unilever Bestfoods Robertsons (Pty) Ltd and Others v Soomar and Another 2007 (2) SA 347 (SCA)

Thompson and Another v Minister of Police and Another 1971 (1) SA 371 (E)

Foulds v Smith 1950 (1) SA 1 (A)

Theron v Steenkamp 1928 CPD 429

Ingram v Minister of Justice 1962 (3) SA 225 (W)

Bacon v Nettleton 1906 T.H. 138

Holden v Assmang Limited (1277/2019) [2020] ZASCA 145; 2021 (6) SA 345 (SCA)

Makhwelo v Minister of Safety and Security 2017 (1) SA 274 (GJ)

Member of the Executive Council for Education, KwaZulu‑Natal v Shange [2013] JOL 30039 (SCA)

Sello v Minister of Police N.O and Another (89077/16) [2022] ZAGPPHC 233 (13 April 2022)

Diko v MEC for Health (583/2018) [2022] ZAECBHC 11 (22 March 2022); on appeal [2023] ZAECBHC 29 (15 September 2023)

Mohlomi v Minister of Defence 1997 (1) SA 124 (CC)

Kruger v National Director of Public Prosecutions [2018] ZACC 13

Mtokonya v Minister of Police 2018 (5) SA 22 (CC)

Minister of Police v Zamani (CA 10/2021) [2021] ZAECBHC 41; 2023 (5) SA 263 (ECB)

De Klerk v Minister of Police [2019] ZACC 32; 2020 (1) SACR 1 (CC)

Minister of Police and Another v Yekiso 2019 (2) SA 281 (WCC)

Khanya v Minister of Police (5458/2014) [2019] ZAFSHC 81 (20 June 2019)

Lombo v African National Congress 2002 (5) SA 668 (SCA)

Barnett and Others v Minister of Land Affairs and Others 2007 (6) SA 313 (SCA); 2007 (11) BCLR 1214 (SCA)

Ngcobo v Minister of Police 1978 (4) SA 930 (D)

Slomowitz v Vereeniging Town Council 1966 (3) SA 317 (A)

Ramphele v Minister of Police 1979 (4) SA 902 (W)

Annari du Plessis v Minister of Police and Others (42774/2016) [2018] ZAGPPHC (18 June 2018)

Lawrence Nyiko Nkwinika v Detective Malapane and Another (19477/2018) [2015] ZAGPJHC 42 (27 February 2015)

Marchel Labuschagne v Minister of Safety and Security (44033/19) [2023] ZAGPPHC 844 (17 July 2023)

Minister of Safety and Security v Seymour 2006?; 2009 (6) SA 320 (SCA)

Mothobi Albert Tlake v The Minister of Police and Another (377/2014) [2017] ZAFSHC 178 (20 October 2017)

Minister of Police v Lebelo 2022 (2) SACR 201 (GP)

Mashaba v Minister of Police (54940/2012) [2023] ZAGPPHC (18 December 2023)

Makhatholela v Minister of Police and Another 2024 JDR 3502 (GJ)

Malgas and Others v Minister of Justice and Correctional Services [2024] ZAGPPHC 1222 (25 November 2024)

Aphindile v Minister of Police (573/021) [2024] ZANWHC 16 (25 January 2024)

Manchu v Minister of Police and Others [2024] ZAGPJHC 536 (3 May 2024)

Kutoane v Minister of Police and Others (17387/19) [2024] ZAGPJHC 529 (31 May 2024)

Gcam‑Gcam v Minister of Police 2025 JDR 2648 (ECM)

Road Accident Fund and Another v Mdeyide (CCT 10/10) [2010] ZACC 18; 2011 (2) SA 26 (CC); 2011 (1) BCLR 1 (CC)

MEC for Health, Western Cape v M C (1087/2019) [2020] ZASCA 165 (10 December 2020)

Le Roux and Another v Johannes G Coetzee and Seuns and Another 2024 (4) BCLR 522 (CC)

Drennan Maud & Partners v Pennington Town Board [1998] ZASCA 29; 1998 (3) SA 200 (SCA)

Zealand v Minister of Justice and Constitutional Development and Another [2008] ZACC 3; 2008 (4) SA 458 (CC)

Karoo Meat Exchange Ltd v Mtwazi 1967 (3) SA 356 (C)

Levy v Levy 1991 (3) SA 614 (A)

Johannesburg Water (SOC) Ltd v Dark Fibre Africa (Pty) Ltd 2025 (5) SA 452 (GJ)

Imperial Bank v Kubheka (28713/08) [2010] ZAGPPHC 3 (4 February 2010)

James Brown & Hamer (Pty) Ltd v Simmons 1963 (4) SA 656 (A)

Minister of Agriculture and Land Affairs v CJ Rance (Pty) Ltd 2010 (4) SA 109 (SCA)

Olesitse NO v Minister of Police (470/2021) [2022] ZASCA 90 (15 June 2022)

Olesitse NO v Minister of Police (CCT 183/22) [2023] ZACC 35; 2024 (2) BCLR 238 (CC)

President of the Republic of South Africa and Another v Tembani and Others [2024] ZACC 5

Legislation Cited

Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002

Prescription Act 68 of 1969

Constitution of the Republic of South Africa, 1996 (including sections 12 and 172(2)(a))

Criminal Procedure Act 51 of 1977 (including sections 50–60 and section 174)

Public Service Act, 1994 (Proclamation 103 of 1994), Schedules 1–3

Local Government: Municipal Structures Act 117 of 1998, section 82

South African Maritime Safety Authority Act 5 of 1998, section 22

South African National Roads Agency Limited and National Roads Act 7 of 1998, section 19

South African Police Service Act 68 of 1995

Police Act 7 of 1958 (historic; as discussed in Thompson)

Rules of Court Cited

Uniform Rule 41 (withdrawal of proceedings after set-down)

Uniform Rule 25(2)–(3) (replications and joinder of issue)

Uniform Rule 29 (closure of pleadings referenced via Rule 25)

HEADNOTE

Summary

The appellant, Mr Ntombela, was unlawfully arrested on 16 September 2016 and detained for approximately 14 months before being released on bail on 14 November 2017. He was acquitted on 11 December 2017. On 15 May 2018 his attorneys sent a notice in terms of section 3(1) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 to the Minister of Police by registered mail, and summons was issued on 27 June 2018. At the commencement of the trial the Minister conceded the merits but raised a special plea that the section 3 notice was late and, absent condonation, barred the claim. Although an application for condonation had been enrolled, the plaintiff’s counsel withdrew it on the day of trial. The court a quo upheld the special plea and dismissed the action.

On appeal, the minority (Wentzel AJ) undertakes a comprehensive survey of authorities and concludes that, as a matter of law, debts for wrongful arrest are “due” on the date of arrest, and debts for unlawful detention accrue day by day, so that the section 3 notice had to be given within six months of arrest or, for detention, as the detention unfolded. The minority nevertheless agrees that the trial court ought to have refused the withdrawal of the condonation application and should have granted condonation.

The majority (Wilson J, Mfenyana J concurring) assumes, without deciding, that the debt was due on the date of arrest. However, the majority allows the appeal on a narrower procedural ground: the court a quo misdirected itself in accepting the withdrawal of the condonation application and in declining to hear it at the outset of the trial, when it had a discretion to refuse the withdrawal and determine the condonation. The Full Court substitutes an order refusing leave to withdraw, grants condonation, and awards the appellant R1.5 million in general damages for the unlawful arrest and prolonged detention.

Key Issues

The court addresses when a debt in a wrongful arrest and detention claim becomes “due” for section 3 purposes; whether wrongful arrest and detention constitute a continuous wrong or separate causes of action; the meaning of “knowledge” under section 3(3)(a) and the Prescription Act, including deemed knowledge; compliance with section 4 service requirements; the effect of a failure to replicate to a special plea under Rule 25; and the trial court’s discretion under Rule 41 to refuse the withdrawal of a condonation application already set down.

Held

The appeal succeeds. The court below failed to appreciate that it retained a discretion to refuse the withdrawal of the condonation application and erred in declining to determine condonation at the outset of trial. Condonation is granted because the claim had not prescribed, good cause was established, and the Minister suffered no prejudice, particularly in light of the concession on the merits. The court awards R1 500 000 in general damages, plus interest and costs. The minority confirms that, in principle, wrongful arrest debts are due at arrest and unlawful detention accrues from day to day, but concurs in the order because condonation should have been granted.

THE FACTS

The appellant was arrested by SAPS members on 16 September 2016 on serious charges and remained in custody for approximately fourteen months before being granted bail on 14 November 2017. Less than a month later, on 11 December 2017, he was acquitted (although the pleadings had referenced a withdrawal of charges). Shortly after returning to KwaZulu-Natal, he resolved to consult attorneys about a civil claim arising from his incarceration.

In early May 2018, the appellant consulted attorneys who advised that he had a claim for unlawful arrest and detention. On 15 May 2018, his attorneys sent a notice in terms of section 3(1) of the Institution of Legal Proceedings Act by registered mail to the National Commissioner of Police; the Minister later contended that the notice was only stamped as received on 3 August 2018. Summons was served on 27 June 2018, well within three years of arrest.

At trial on 24 July 2023, the Minister conceded the merits. Two issues remained: quantum and the special plea that the notice was late. Although the appellant had enrolled a condonation application, his counsel withdrew it from the bar after the trial judge indicated the application belonged in the interlocutory court. The court a quo upheld the special plea and dismissed the action, declaring that it would otherwise have granted condonation, and observing (erroneously on the facts) that the appellant had consulted his attorneys in May 2017.

THE ISSUES

The appeal raised multiple intertwined questions of procedure and substantive law. First, it presented the perennial question of when a “debt” for wrongful arrest and detention becomes “due” under section 3(2)(a) of the Institution Act, specifically whether the debt accrues at arrest, day by day during detention, upon release, or only upon acquittal or withdrawal. This question required the court to grapple with conflicting High Court authorities and to reconcile them with Supreme Court of Appeal and Constitutional Court jurisprudence on prescription and knowledge.

Second, the court had to decide whether the trial court misdirected itself by accepting withdrawal of a condonation application set down at trial, rather than exercising its discretion to refuse the withdrawal and determine condonation as a preliminary issue. This implicated Uniform Rule 41 and the court’s duty to control its process in the interests of justice.

Third, the matter engaged the scope and content of the knowledge condition in section 3(3)(a) of the Institution Act and section 12(3) of the Prescription Act, including deemed knowledge through reasonable care, and the distinction between knowledge of facts and knowledge of legal conclusions or rights.

A further set of issues concerned compliance with section 4 of the Institution Act regarding service of notices, including whether sending by registered mail suffices without proof of actual receipt and whether Rule 25 required a replication to the Minister’s special plea. Finally, if condonation should have been granted, the court was asked to determine liability and quantum in light of the Minister’s concession that the arrest and detention were unlawful.

ANALYSIS

The minority judgment (Wentzel AJ) undertakes an exhaustive review of authorities. Applying Truter v Deysel and Gore v Minister of Finance, it frames “due” as when the creditor acquires a complete cause of action. Carefully distinguishing malicious prosecution from wrongful arrest, the minority affirms, with Lombo v ANC, Thompson v Minister of Police, Yekiso, Zamani, and subsequent lines of authority, that wrongful arrest claims accrue at arrest, while continued unlawful detention gives rise to a fresh cause of action each day. On this view, the fact of acquittal or withdrawal is irrelevant to accrual for wrongful arrest and detention, albeit central to malicious prosecution, which only accrues upon termination of the prosecution in the plaintiff’s favour as restated in Holden v Assmang.

Building on Mtokonya, Kruger, Links, and Tembani, the minority clarifies that “knowledge” in section 3(3)(a) and section 12(3) refers to knowledge of material facts, not legal conclusions. An arrested person’s innocence and deprivation of liberty are facts sufficient to trigger the section 3(2)(a) clock; knowledge of wrongfulness or legal rights is not required. Nor does a claimant need sight of the docket before a debt is due. While the judgment expresses normative unease about the strictness of this approach for incarcerated, indigent claimants, it acknowledges that the recent appellate trajectory compels it, save for the separate and later-accruing malicious prosecution cause of action, a distinction emphatically endorsed in Olesitse (CC).

On section 4 service, the court holds that sending the notice by registered mail satisfies the statute; the enhanced steps in section 4(2) only apply to e-mail or facsimile transmissions. Absent evidence to the contrary, registered mail yields a presumption of receipt within a short period, and there was no burden on the appellant to prove actual receipt or take further steps to draw the notice to the Commissioner’s attention. On the pleading point, Rule 25(2)–(3) renders a replication unnecessary where the plaintiff merely joins issue; a failure to replicate does not amount to an admission of the special plea’s allegations.

The majority judgment (Wilson J) resolves the case on procedural fairness and judicial control of process. Assuming, without deciding, that the debt accrued on arrest, the majority finds three notable features decisive: the Minister conceded the merits; the trial court recorded that it would have granted condonation had the application not been withdrawn; and there was no respondent consent to the withdrawal post set-down. Rule 41 confers a discretion on the court to refuse withdrawal of an application already set down. The trial court misdirected itself in thinking it had to accept the withdrawal and in declining to hear the condonation at the outset on the ground that it belonged in the interlocutory court—neither the Uniform Rules nor practice directions deprived the court of that jurisdictional choice.

Exercising the discretion afresh, the majority holds that condonation should plainly have been granted under section 3(4). The claim had not prescribed; the explanation for delay—incarceration and subsequent prompt action on securing legal representation—was acceptable; the merits were conceded, and the Minister identified no prejudice. In these circumstances, refusing condonation would subvert the Act’s purpose and access to court. Turning to quantum, the court adopts De Klerk’s award as a benchmark, acknowledges the severe conditions of a 14‑month detention, and awards R1 500 000, holding that this global amount is comfortably within the range of precedent and obviates a remittal.

REMEDY

The Full Court allows the appeal, sets aside the court a quo’s order, and substitutes it with an order that refuses leave to withdraw the condonation application, grants condonation for the late section 3(1) notice, and enters judgment for the appellant. The Minister is ordered to pay R1 500 000 as general damages for wrongful arrest and detention, together with interest at the prescribed rate from 27 June 2018 (the date of summons) to date of payment, and costs of suit. The appeal costs, including counsel’s fees taxed on scale B, are also awarded to the appellant.

This remedial approach produces a final resolution of the merits and quantum before the appeal court, in circumstances where liability on the merits was conceded and where the condonation requirements were manifestly satisfied. It avoids the injustice that would have resulted had the procedural misstep at trial (accepting withdrawal of a meritorious condonation application) been allowed to defeat an otherwise uncontested claim.

LEGAL PRINCIPLES

The judgment consolidates and applies several important principles governing claims against organs of state. First, a debt under section 3(2)(a) of the Institution Act becomes “due” when the creditor has the minimum facts necessary to sue. For wrongful arrest, those facts exist at arrest; for unlawful detention, each day of unlawful detention presents a new and separate wrong. By contrast, the separate delict of malicious prosecution only accrues when the prosecution terminates in the plaintiff’s favour.

Second, the knowledge requirement in section 3(3)(a) and section 12(3) of the Prescription Act is limited to knowledge of material facts and the debtor’s identity, or such knowledge as could have been acquired by reasonable care. Knowledge of legal conclusions, the wrongfulness of the conduct, or the availability of a legal remedy is not required. It follows that arrest and deprivation of liberty are sufficient factual triggers, and the debtor may not postpone compliance until docket access or acquittal. Where a claimant has or should have had such knowledge, the six-month notice period runs, subject to condonation where the section 3(4) criteria are met.

Third, the procedural framework matters. Under Rule 41, a court has a discretion, after set‑down, to refuse withdrawal of an application if withdrawal would work an injustice or amount to an abuse. That discretion must be recognised and exercised judicially. A trial court may determine a condonation application at the outset of trial; practice directions do not oust its jurisdiction to do so. Rule 25 confirms that replication is unnecessary where the plaintiff simply joins issue; allegations in a special plea are deemed denied absent replication.

Fourth, section 4 service is satisfied by registered mail to the designated functionaries; the enhanced proof obligations in section 4(2) apply to e‑mail and fax, not to registered post. Presumptions of receipt may arise from registered mail practice. The central purpose of the Institution Act is to enable timely investigation and management of state liability; it is not to erect gratuitous procedural barriers to meritorious, conceded claims.

Finally, the condonation enquiry under section 3(4) requires satisfaction that the debt is not prescribed, that good cause exists for the failure, and that the organ of state was not unreasonably prejudiced. Incarceration, prompt post‑release action, and conceded merits with no shown prejudice favour granting condonation. On quantum, De Klerk offers a practical benchmark for general damages in unlawful detention; awards must reflect the length and conditions of detention and the constitutional premium on personal liberty and dignity.

THE FACTS

The appellant was arrested without warrant on 16 September 2016 by unidentified SAPS officers on allegations of murder and/or assault with intent to cause grievous bodily harm. He remained incarcerated as an unsentenced detainee for about fourteen months, being released on bail on 14 November 2017. Shortly thereafter, on 11 December 2017, he was acquitted of the charges. He returned to KwaZulu‑Natal and, after reflection, resolved to seek legal advice given the time lost and conditions endured during his detention.

In early May 2018 the appellant consulted attorneys who advised that he had a claim for wrongful arrest and detention against the Minister of Police. On 15 May 2018 his attorneys sent a written notice in terms of section 3(1) of the Institution Act by registered mail to the National Commissioner of SAPS. The Minister later asserted receipt only on 3 August 2018, a contention that was immaterial given the method of service and the presumption of receipt attending registered mail. The appellant issued and served summons on 27 June 2018, indisputably within three years of the arrest.

At trial in July 2023 the Minister conceded liability on the merits. Two issues remained: the special plea that the section 3 notice was late and the quantification of general damages. Although an application for condonation under section 3(4) had been set down, counsel for the appellant withdrew it from the bar after the trial judge indicated that such applications are typically heard in the interlocutory court. The court a quo upheld the special plea on the basis that the notice was late and, because the condonation application had been withdrawn, could not be considered. It stated, however, that had the condonation application been pursued, it would have been granted.

THE ISSUES

The principal substantive question was when the appellant’s debt became “due” for purposes of section 3(2)(a), namely whether at arrest (for arrest claims) and from day to day (for detention), upon release on bail, or at acquittal/withdrawal. This engaged Extensive authority, including recent Constitutional Court decisions, and bore on the timeliness of the section 3 notice.

The primary procedural question was whether the court a quo erred by treating itself as bound to accept the withdrawal of the condonation application set down for hearing at trial. This implicated Rule 41 and the court’s inherent power to regulate its own process to prevent injustice, especially where merits are conceded and condonation would resolve the matter.

Related issues concerned the meaning of “knowledge” in section 3(3)(a) and section 12(3), deemed knowledge through reasonable care, and the distinction between knowledge of facts and legal conclusions. The court also had to consider whether service by registered mail complied with section 4 and whether failure to replicate to a special plea had adverse procedural consequences under Rule 25. The final issue, arising if condonation were granted, was the appropriate quantum of general damages for a 14‑month unlawful detention.

ANALYSIS

On accrual, the minority carefully distinguishes wrongful arrest and detention from malicious prosecution. Following Thompson, Lombo, Barnett, Yekiso, Khanya, Zamani, and Manchu, it reasons that wrongful arrest is a single delict completed at arrest, while detention beyond lawful authority constitutes a continuing wrong that notionally yields a separate cause of action for each day the detention remains unlawful. It declines to adopt a “continuous proceedings” approach from arrest to acquittal except in malicious prosecution, for which Holden confirms accrual only upon favourable termination. It recognises that some first‑instance decisions have treated unlawful arrest and detention as a continuing wrong accruing at discharge or acquittal (Makhwelo, Tlake, Mashaba, Malgas, Makhatholela), but finds that approach inconsistent with the recent weight of appellate authority and the Constitutional Court’s knowledge jurisprudence.

On knowledge, the minority applies Mtokonya, Kruger, Links and Tembani to hold that the six‑month period runs once the claimant knows, or with reasonable care should know, the identity of the debtor and the facts constituting arrest and deprivation of liberty; knowledge of wrongfulness, rights, or docket content is unnecessary. It acknowledges the practical burdens this places on incarcerated, unrepresented litigants, but concludes that the statutory framework and appellate authorities leave limited room to delay accrual until docket disclosure or acquittal. While expressing unease about systemic fairness, the minority emphasizes that condonation under section 3(4) is the appropriate vehicle to cure late notice where good cause and lack of prejudice exist.

On service, the court accepts that posting a section 3 notice by registered mail to the National Commissioner satisfies section 4(1). The heightened steps in section 4(2) apply only to e‑mail and fax, and there is no obligation to ensure actual receipt when service is by registered mail. The presumption of receipt within a few days after posting, recognised in Imperial Bank v Kubheka, answers the Minister’s contention about the internal “date received” stamp.

On procedure, the majority finds that the court a quo misdirected itself by accepting the withdrawal of the condonation application after set‑down without recognising its discretion under Rule 41 to refuse such withdrawal. The court was at large to determine condonation at the outset of the trial; neither the Uniform Rules nor practice directions compelled a postponement to the interlocutory court. Permitting the withdrawal in the face of a conceded claim and a condonation application that would have been granted “deprived [the] court of the power to grant an uncontested claim,” an unjust outcome contrary to the proper administration of justice.

Turning to condonation, the majority applies section 3(4)(b): the debt had not prescribed; the explanation—incarceration followed by prompt action after securing counsel—constitutes good cause; and prejudice to the Minister was not shown, particularly given the concession on liability and the purpose of the Act to facilitate investigation and risk management, not to defeat meritorious claims on technicalities. The court therefore refuses leave to withdraw, grants condonation, and resolves the action on its merits and quantum.

On quantum, the majority draws from De Klerk, where R300 000 was awarded for a seven‑day detention, as a practical reference point. Given the appellant’s fourteen‑month detention and the conditions described, the award of R1 500 000 is within the guideline range and promotes constitutional values of liberty and dignity. A remittal on quantum is unnecessary because only general damages are sought and the merits are conceded.

REMEDY

The Full Court sets aside the dismissal order and substitutes the following: leave to withdraw the condonation application is refused; condonation is granted for non‑compliance with section 3(2)(a); and the Minister must pay the appellant R1 500 000 in general damages, with interest at the prescribed rate from 27 June 2018 to date of payment, together with costs of suit. The appeal is upheld with costs, including counsel’s fees on scale B.

This remedy vindicates the appellant’s constitutional rights and the common‑law protection against arbitrary deprivation of liberty, rectifies the procedural misstep below, and comports with the statutory purposes of the Institution Act. It also provides clarity for future cases by emphasising the court’s supervisory role over withdrawals after set‑down and the availability of condonation to balance fairness and statutory compliance.

LEGAL PRINCIPLES

The case affirms that wrongful arrest and unlawful detention claims accrue for section 3 purposes at different times. Wrongful arrest is complete at arrest. Unlawful detention accrues from day to day for each day of unjustified incarceration. Malicious prosecution remains distinct, accruing only when the prosecution terminates in the plaintiff’s favour. This doctrinal clarity allows litigants to timeously give notices and institute proceedings without conflating distinct wrongs or awaiting developments in related criminal processes.

The court reiterates the settled interpretation of “knowledge” in section 3(3)(a) of the Institution Act and section 12(3) of the Prescription Act. Knowledge pertains to material facts—identity of debtor and factual matrix—not legal conclusions or advice. An arrested person’s knowledge of his or her arrest and consequent deprivation of liberty ordinarily suffices to start the clock. Deemed knowledge applies where reasonable care would have uncovered the material facts. While docket disclosure, acquittal or legal advice may illuminate litigation prospects, they are not prerequisites to accrual. Condonation is the appropriate safety valve, requiring proof that the debt has not prescribed, good cause, and no unreasonable prejudice.

On procedure, the judgment underscores a court’s control over its process. Under Rule 41, withdrawal of an application post set‑down requires consent or leave; a court may refuse withdrawal to prevent injustice, abuse, or futile fragmentation of proceedings. Rule 25 confirms that a replication is unnecessary where the plaintiff merely denies the special plea; the issue is deemed joined. Section 4 compliance is satisfied by registered mail to the designated officeholders; the statute does not require proof of actual receipt or further steps unless service is by e‑mail or fax.

Finally, the quantification of general damages for unlawful detention must align with constitutional values and precedent. De Klerk provides a salient benchmark; awards must be tailored to the duration and conditions of detention, the indignity and psychological harm suffered, and the need to deter abuses of police power while ensuring awards remain fair, reasonable, and consistent.