Brief Summary

Condonation — Late service of notice — Applicant sought condonation for late service of written notices under section 3 of the Institution of Legal Proceedings against Certain Organs of State Act — Applicant arrested without a warrant on 2 September 2018 and discharged on 23 July 2020 — Summons issued on 5 November 2021, with notices served late on respondents — Respondents raised special plea of prescription and non-compliance with the Act — Court held that claims for unlawful arrest and detention had prescribed, while claims against the second respondent required good cause for late notice — Applicant's reasons for delay deemed insufficient and prejudicial to the second respondent — Condonation application dismissed.

Comprehensive Summary

Summary of Judgment

Introduction

The matter concerned an opposed interlocutory application for condonation under section 3(4)(b) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002. The applicant sought an order condoning the late service of the statutory notices contemplated in section 3(1)(a) of that Act on two organs of state.

The parties were Tshepiso Josias Mofokeng as applicant, and the Minister of Police (first respondent) together with the National Director of Public Prosecutions (second respondent). The condonation application arose against the background of a subsequently instituted damages action in which both respondents delivered pleas raising, among other defences, non-compliance with section 3 and a special plea of prescription.

Procedurally, the applicant had issued summons claiming damages for unlawful arrest and detention, loss of income, and malicious prosecution. After the respondents objected that the section 3 notices were served outside the statutory six-month period, the applicant conceded late service and launched this application for condonation.

The general subject-matter was therefore not the merits of the damages action itself, but whether the applicant satisfied the statutory requirements for condonation of late notice, including whether the underlying debts had prescribed, whether good cause existed for the delay, and whether the organs of state were not unreasonably prejudiced by the late notices.

Material Facts

On 2 September 2018, the applicant was arrested without a warrant on a charge of murder. On 4 September 2018, he appeared in the district court, where bail was refused, and he was thereafter remanded in custody.

The applicant remained detained until 23 July 2020, when he was discharged in terms of section 174 of the Criminal Procedure Act 51 of 1977. This discharge was treated in the condonation proceedings as the date on which the debt underlying the claim against the second respondent became due, a point on which the parties were recorded as being in agreement for purposes of prescription.

On 5 November 2021, the applicant issued summons against the respondents claiming damages arising from the arrest, detention, alleged loss of income, and alleged malicious prosecution. The summons was served on the first respondent on 24 November 2021.

It was common cause that the applicant did not comply with section 3(2)(a) of the 2002 Act. The applicant conceded that the section 3 notices were served out of time, having been served on the first respondent on 29 June 2021 and on the second respondent on 21 October 2021.

In explaining the delay, the applicant relied on several asserted circumstances. He stated that while in custody he was legally represented, but his attorney did not advise him of a potential civil claim; that as a lay person he did not know he could sue; that following his release he was ill with depression; that the period coincided with Covid-19 lockdown restrictions affecting consultations; and that only in June 2021 did a friend advise him that he could claim damages, after which he instructed his attorneys.

The second respondent disputed that the explanation constituted good cause and raised prejudice, including that the delay affected the ability to litigate due to the fading of witnesses’ memories and the financial exposure of litigation. The second respondent also disputed that the applicant had good prospects of success in a malicious prosecution claim, contending that the prosecution had been based on witness statements (including that of the deceased’s wife), that the applicant allegedly fled when approached by police, and that the fingerprint evidence did not exculpate the applicant because the relevant prints were too poor for comparison. The court recorded that these contentions were left uncontroverted because the applicant did not deliver a replying affidavit.

Legal Issues

The application required determination of whether the statutory requirements for condonation in section 3(4)(b) of the 2002 Act were met, namely whether the underlying debt had not prescribed, whether good cause existed for the late service of the notice, and whether the organ of state was not unreasonably prejudiced by that late service.

A central legal issue was the point at which the applicant’s various delictual debts became due for purposes of prescription, particularly in relation to the claims against the first respondent for unlawful arrest and detention and loss of income. This required application of statutory rules on prescription, including the distinction between knowledge of facts giving rise to the debt and knowledge of legal entitlement or remedies.

The dispute involved a combination of legal and evaluative determinations. The prescription question was primarily a matter of applying statutory prescription principles to largely common-cause dates, while the “good cause” and prejudice requirements involved a discretionary, multi-factor evaluation informed by the explanation for the delay and the apparent merits and fairness of allowing late notice.

Court’s Reasoning

The court approached the matter through the framework of section 3(4)(b) of the 2002 Act, which permits condonation only if the court is satisfied that the debt has not prescribed, that good cause exists for late notice, and that the organ of state has not been unreasonably prejudiced. The court treated these requirements as cumulative prerequisites to relief.

On prescription in relation to the first respondent, the court held that the applicant’s claims for unlawful arrest and detention and loss of income were delictual debts governed by sections 10(1), 11(d) and 12(1) of the Prescription Act 68 of 1969, which provide for a three-year prescription period running from the date the debt becomes due. The court applied section 12(3), emphasising that a debt is not deemed due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises, while also noting that this does not require knowledge of the law or the availability of a remedy.

In rejecting the applicant’s contention that prescription only commenced on 23 July 2020, the court reasoned that the applicant’s position amounted to saying he lacked knowledge that he was legally entitled to sue, rather than lacking knowledge of the debtor or the facts. The court considered that for unlawful arrest and detention, an arrest is prima facie unlawful in the sense that once arrest and detention are established (and were undisputed on the papers), the burden shifts to the Minister to justify it. On this basis, the court concluded that the lawfulness of arrest and detention is not dependent on the termination of the criminal proceedings, and that a discharge or acquittal is not determinative of the arrest’s lawfulness. The court therefore treated the arrest on 2 September 2018 as the event giving rise to the debts for unlawful arrest, detention, and loss of income, and held that these claims had prescribed before summons was served in November 2021. This finding meant the statutory requirement that the “debt has not prescribed” was not satisfied in relation to those claims, and the prescription objection was determined in favour of the first respondent.

Regarding the second respondent, the court recorded that the parties were agreed that the claim against the second respondent had not prescribed, which meant the application turned on good cause and prejudice. The court identified the applicable approach to condonation as a judicial discretion exercised by weighing interrelated factors, including the degree of lateness, explanation for the delay, prospects of success, and the interests of justice. It relied on the approach described in United Plant Hire (Pty) Ltd v Hills and Others 1976 (1) SA 717 (A) as quoted with approval in Madinda v Minister of Safety and Security [2008] ZASCA 34; 2008 3 All SA 143 (SCA), including the explanation that “if the court is satisfied” calls for an overall evaluative impression rather than proof on a balance of probabilities. The court further relied on Madinda’s description of “good cause” as embracing considerations bearing on fairness between the parties and the administration of justice, including prospects of success, sufficiency of explanation, bona fides, and responsibility for the delay.

On the degree of lateness and explanation, the court found the delay to be extreme: approximately 15 months from the agreed due date of 23 July 2020 to service of notice on 21 October 2021. The court held that the applicant’s explanation did not sufficiently account for the elapsed periods. It identified an unexplained gap from July 2020 to December 2020, and a further period from December 2020 to June 2021 that was not adequately explained. The court also considered an additional delay relevant to diligence: a further five months after the second respondent refused condonation on 12 September 2022 until the condonation application was launched on 23 February 2023, which was also not explained. The court was not persuaded that the applicant had shown good cause, noting that the applicant attributed blame broadly to factors such as illness, lack of legal knowledge, Covid-19 restrictions, and an erstwhile attorney, while the court emphasised that the applicant remained the litigant responsible for the prosecution of the claim.

On prospects of success, the court accepted that the applicant was not required at the condonation stage to prove his case on a balance of probabilities, but had to place sufficient material to satisfy the court of a prima facie case and bona fide intention to proceed to trial. The applicant’s prospects were principally supported by reliance on a fingerprint comparison report said to exonerate him. The court found this reliance unsound because the report indicated that the prints were unmatched due to the scene prints being too poor for comparison, rather than positively excluding the applicant. The court further treated the second respondent’s asserted basis for prosecution, including witness statements and other asserted circumstances, as uncontroverted due to the absence of a replying affidavit. On this footing, the court was not satisfied that the applicant demonstrated prospects of success sufficient to weigh in favour of condonation.

On prejudice, the court rejected the applicant’s stance that prejudice was absent because the second respondent had not indicated prejudice beyond refusing consent. The court held that section 3(4)(b) places the onus on the applicant to satisfy the court that the organ of state was not unreasonably prejudiced. The court considered that the second respondent’s allegations of prejudice were not countered by the applicant.

Synthesising these considerations, the court concluded that the applicant failed to meet the statutory requirements for condonation. The application accordingly failed, and the court found no reason to depart from the general principle that costs follow the result.

Outcome and Relief

The court dismissed the application for condonation of the late service of the section 3 notices contemplated in section 3(1)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, read with the period prescribed in section 3(2)(a) of that Act.

The court ordered the applicant to pay the respondents’ costs.

Cases Cited

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

Truter and Another v Deysel [2006] ZASCA 16; 2006 (4) SA 168 (SCA).

Mtokonya v Minister of Police [2017] ZACC 33; 2017 (11) BCLR 1443 (CC); 2018 (5) SA 22 (CC).

United Plant Hire (Pty) Ltd v Hills and Others 1976 (1) SA 717 (A).

Madinda v Minister of Safety and Security [2008] ZASCA 34; 2008 3 All SA 143 (SCA).

Legislation Cited

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

Criminal Procedure Act 51 of 1977.

Prescription Act 68 of 1969.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the applicant’s claims against the first respondent for unlawful arrest and detention and loss of income became due on 2 September 2018 and had prescribed under the Prescription Act 68 of 1969 by the time summons was served in November 2021, with the result that the requirement in section 3(4)(b) that the debt has not prescribed could not be met in relation to those claims.

In relation to the claim against the second respondent, the court held that the section 3 notice was served approximately 15 months late, that the applicant failed to provide a sufficient and complete explanation amounting to good cause, that the applicant failed to show adequate prospects of success on the papers, and that the applicant did not discharge the onus of showing the second respondent was not unreasonably prejudiced by the late notice.

The application for condonation was therefore dismissed with costs.

LEGAL PRINCIPLES

The judgment applied the principle that delictual debts prescribe after three years in terms of sections 10(1), 11(d) and 12(1) of the Prescription Act 68 of 1969, and that under section 12(3) a creditor’s knowledge for prescription purposes concerns knowledge of the debtor’s identity and the facts giving rise to the debt, not knowledge of the law or of a legal remedy.

In relation to unlawful arrest and detention, the judgment applied the principle that an arrest is treated as prima facie unlawful once arrest and detention are established, and that the lawfulness of arrest and detention is not determined by the eventual outcome of the criminal trial; discharge or acquittal is not a determinative factor for when such a civil claim becomes due.

For condonation under section 3(4)(b) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, the judgment applied the principle that condonation is a discretionary determination requiring satisfaction of cumulative requirements, and that the assessment of “good cause” involves an overall evaluation of factors bearing on fairness and the administration of justice, including the degree of lateness, explanation, prospects of success, and the parties’ conduct, as articulated in United Plant Hire (Pty) Ltd v Hills and Others 1976 (1) SA 717 (A) and Madinda v Minister of Safety and Security [2008] ZASCA 34; 2008 3 All SA 143 (SCA).

The judgment further applied the principle that, for purposes of section 3(4)(b), the onus rests on the applicant to satisfy the court that the organ of state was not unreasonably prejudiced by late service of the statutory notice, and that a failure to answer allegations relevant to prospects and prejudice may weigh against the grant of condonation.

Mofokeng v Minister of Police and Another (5150/2021) [2023] ZAFSHC 432 (31 October 2023)