IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Reportable/Not Reportable
Case no.: 1294/2019
In the matter between:
MALEFETSANE PAULUS RAMOHAPI Applicant1
and
THE MINISTER OF POLICE 1st Respondent2
THE NATIONAL DIRECTOR:
PUBLIC PROSECUTIONS 2nd Respondent3
THE MINISTER:
JUSTICE & CONSTITUTIONAL DEVELOPMENT 3rd Respondent4
Coram: Opperman J
Heard: 14 Feb1uary 2025.
Plaintiff a quo (plaintiff).
2 During the hearing of the case, it was common cause that the claim against the thim defendant was withdrawn
and the claim against the first defendant became prescribed .
3
4 Second defendant a quo (defendant ).
See fn2.
2
Delivered: 3 April 2025. This judgment was handed down in court and
electronically by circulation to the parties' legal representatives by email and
release to SAFLII. The date and time for hand-down is deemed to be on 3 April
2025 at 15h00.
Summary: Leave to appeal -Action against State -Special plea of
prescription -Non-compliance with Institution of Legal Proceedings Against
Certain Organs of State Act 40 of 2002 condoned .
ORDER
The application for leave to appeal is dismissed with costs on party and party
scale C.
JUDGMENT
Opperman J
[1] I ordered on 3 October 2024 that:
'1. The plaintiff's claim of malicious prosecution against the first defendant has prescribed
and is accordingly dismissed . The plaintiff is to pay the first defendant's costs on scale C.
2. The special plea of prescription raised by the second defendant is upheld and the
plaintiff's claim of malicious prosecution against the second defendant is accordingl y
dismissed . The plaintiff is to pay the second defendant's costs and on scale C.'
[2] There now lies an application for leave to appeal the judgment and order
dated 3 October 2024. The notice of application for leave to appeal is of grave
concern. Apart from the spelling errors, 5 the grounds of appeal were not stated
s Interalia: 'Recived', 'email', '219', 'fromm', 'asif', 'Honopurable ', 'Judged' Oppennan.
3
clearly and concisely . Just as a quo,6 the court had to do extensive sieving and
sifting just to ascertain and endeavour to discover what the issues were and thus
the grounds of appeal. The plaintiffs legal representative did not deal with the
separate grounds for leave to appeal in a particularised and detailed manner. The
beads of argument for the plaintiff were not of much assistance either. Paragraph s
1.1.2 and 3 .1 in the notice of appeal are wrong. Counsel for the defendant is
correct where she stated that:
'Section 4 of the Prescription Act deals with acquisitive prescription , and not extinctive
prescription (which is the issue in this matter). Insofar as the Plaintiff intended to deal with the
statutory issue of the interruption of extinctive prescription , section 15 of the Prescription Act
contains the relevant statutory provisions .'
[3) Imperative is that the plaintiff indicated in para 5 of the notice for the
application for leave to appeal that he reserved the right to supplement the
grounds of appeal once the record becomes available. There is not any indication
of the existence of a notice of the supplementing or amendment of the grounds of
appeal. The plaintiff is not allowed to supplement the grounds for appeal without
formal notice to the opposing party and the court. He cannot do so by just arguing
some points in his heads of argument.
[4] In Songono v Minister of Law and Order7 the court stated that:
'At the outset the applicant faces a procedural difficulty. Leave to appeal was not requested at
the time of judgment and Rule 49(1)(b) accordingly became of application . It provides that:
'When leave to appeal is required and it has not been requested at the time of the judgment or order,
application for such leave shaU be made and the grounds therefor shall be furnished within 15 days after
the date of the order appealed against ... '
In attempted compliance therewith the applicant filed a document headed 'Application for
leave to appeal', in which he purported to set out the grounds upon which I eave to appeal was
to be sought. These so -called 'grounds constitute a diatribe of some 17 pages criticising the
judgment , analysing (at times incorrectly) certain of the evidence and the findings made,
6 See paras 7 and 10 of the judgment a quo.
Songono v Minister of law and Order 1996 (4) SA 384 (E) at 385-386.
4
putting forward certain submissions and quoting various authorities . This lengthy, convoluted
and at times disjointed criticism of the judgment did not clearly and succinctly spell out the
grounds upon which leave to appeal is sought iri clear and unambiguous tenns -indeed, it
served more to deceive, particularly as, during the course of argument, there were several points
which the applicant's counsel, Mr Bursey, sought to raise which were not indicated in the
document.
... Accordingly , insofar as Rule 49 (3) is concerned , it has been held that grounds of appeal
are bad if they are so widely expressed that it leaves the appellant free to canvass every finding
of fact and every ruling of the law made by the court a quo, or if they specify the findings of
fact or rulings of law appealed against so vaguely as to be of no value either to the Court or to
the respondent , or if they, in general, fail to specify clearly and in unambiguous terms exactly
what case the respondent must be prepared to meet ...
. . . Just as Rule 49(3) is peremptory in that regard, Rule 49(l)(b) must also be regarded as
peremptory. In my view the lengthy and rambling notice of appeal filed in casu falls woefully
short of what was required. Mr Bursey suggested that grounds of appeal could be gleaned from
the notice but that is not the point -the point is that the notice must clearly set out the grounds
and it is not for the Court to have to analyse a lengthy document in an attempt to establish what
grounds the applicant intended to rely upon but did not clearly set out. On this basis alone the
application seems to me to be fatally defective and must be dismissed . But in any event, even
if I am incorrect in reaching that conclusion, there does not seem to me to be a reasonable
prospect of another Court finding that the applicant is entitled to damages on his claims.'
[ 5] It is alleged by counsel for plaintiff that the court a quo disregarded the
right to access to courts in terms of s 34 of the Constitution of the Republic of
South Africa, 1996; the judgment that will be quoted and the record of the hearing
of the application a quo will show that the blame lies in the manner the parties
litigated. They disobeyed the law and caused access to court to be legislatively
restricted and denied.
[6] The plaintiff relies on ss l 7(1)(a)(i) and (c) of the Superior Courts Act 10
of 2013. 8 That is that the appeal would have a reasonable prospect of success and
where the decision sought to be appealed does not dispose of all the issues in the
8 Para 4 of the notice of appeal.
5
case, the appeal would lead to a just and prompt resolution of the real issues
between the parties.
'4. On a conspectus of all the aforesaid grounds, the Applicant submits that, it it [sic] is in the
interest of justice that an appeal be allowed, as contemplated in section 17 (I) (a) (i) an (c) of
the Superior Courts Act, 10 of 2013.'
[7] The grounds for leave to appeal seems to be that:
a. The service of summons on the NDPP on 22 March 2019 intem1pted
prescription and the court erred in not making such fmding.
b. The condonation order in terms whereof premature service was remedied
was not appreciated by the court. In the alternative the court decided to act as a
court of appeal.
c. The court a quo infringed the rights of the plaintiff to access to court.
[8] This is the relevant part of the judgment:
'[l] The issue for adjudication is that of prescription after non-compliance with the
Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 (the Act). By
agreement between the parties, it was ordered in terms of rule 33( 4), that the matter of
prescription be separated from the rest of the action. The only claim that is still relevant is
against the second defendant and of malicious prosecution .
[2] The predicament of the plaintiff is that the claim would have prescribed9 had he not
served on the State Attorney on 22 March 2019. He served in time but that caused
9 Section 11 of the Prescription Act 68 of 1969 provides: 'Periods of prescription of debts -The periods of
prescription of debts shall be the following : ...
(d) save where an Act of Parliament provides otherwise , three years in respect of any other debt.
(Accentuation added).
6
transgressions of ss 310 and 5(2) and brought s 5(3)11 of the Act into play. Section 5(2)
specifically orders that no process for the institution of legal proceedings may be instituted
before the expiry of 60 days after the notice in tenns of s 3 was served. A notice in tenns of s
3(2)(a) must be served within six months from the date on which the debt became due. Section
5(3) complicates the situation for the plaintiff in that:
10 Section 3 of the Act states: 'Notice of intended legal proceedings to be given to organ of state
(1) No legal proceedings for the recovery ofa debt may be instituted against an organ of state unless-
(a) the creditor has given the organ of state in question notice in writing of his or her or its intention to
institute the legal proceedings in question; or
(b) the organ of state in question has consented ilt writing to the institution of that legal proceedings
(i) without such notice; or
(ii) upon receipt of a notice which does not comply with all the requirements set out in subsection
(2).
(2) A notice must-
(a) within six months from the date on which the debt became due, be served on the organ of state in
accordance with section 4(1); and
(b) briefly set out-
(i) the facts giving rise to the debt; and
(ii) such particulars of such debt as are within the knowledge of the creditor.
(3) For purposes of subsection (2)(a)-
(4) (a) a debt may not be regarded as being due until the creditor has knowledge of the identity of the organ
of state and of the facts giving rise to the debt, but a creditor must be regarded as having acquired
such knowledge as soon as he or she or it could have acquired it by exercising reasonable care, unless
the organ of state wilfully prevented him or her or it from acquiring such knowledge; and
(b) a debt referred to in section 2(2)(a), must be regarded as having become due on the fixed date.
(a) If an organ of state relies on a creditor's failure to serve a notice in terms of subsection (2)(a), the
creditor may apply to a court having jurisdiction for condonation of such failure.
(b) The court may grant an application referred to in paragraph (a) if it is satisfied that
(i) the debt has not been extinguished by prescription ;
(ii) good cause exists for th.e failure by the creditor, and
(iii) the organ of state was not unreasonably prejudiced by the failure.
(c) If an application is granted in terms of paragraph (b). the court may granl leave to institute the legal
proceedings in question, on such conditions regarding notice to the organ of state as the court mav
deem appropriate . (Accentuation added).
11 Section 5(2) of the Act provides: 'No process referred to in subsection (1) may be served as contemplated in
that subsection before the expiry of a period of 60 days after the notice, where applicable , has been served on
the organ of state in tenns of section 3(2)aa: Provided that if the organ of state repudiates in writing liability
for the debt before the ex'Piry of the said period, the creditor may at any time after such repudiation serve the
process on the organ of state concerned .'
[S5(2) substituted bys 33(a) of Act 8 of2017 witheffectfrom 2 August 2017.]
Section 5(3) of the Act stipulates that: 'If any process referred to in subsection (1) has been served as
contemplated in that subsection before the expiry of the period referred to in subsection (2), such process
must be regarded as having been served on the firsl day after the expiry of the said period.'
Section 5(1)(a) of the Act decrees that: 'Any process by which any legal proceedings contemplated in section
3(1) are instituted must be served in accordance with the provisions of section 2 of the State Liability Act,
1957 (Act No. 20 of 1957).'
Section 2 of the State Liability Act 20 of 1957 provides:
'Proceedings to be taken against executive authority of department concerned .
(1) In any action or other proceedings instituted by virtue of tl1e provisions of section 1, the executive
authority of the department concerned must be cited as nominal defendant or respondent
(2) The plaintiff or applicant, as the case may be, or his or her legal representative must, within seven days
after a summons or notice instituting proceedings and in which the executive authority of a department
is cited as nominal defendant or respondent bas been issued, serve a copy of that summons or notice on
the State Attornev.' (Accentuation added).
7
'If any process referred to in subsection ( l) has been served as contemplated in that subsection before
the expiry of the period referred to in subsection (2), such process must be regarded as having been
served on the first day after the expiry of the said period.' (Accentuation added)
[3] The following dates are important regarding the claim of malicious prosecution against
the second defendant:
The plaintiff was acquitted on appeal on 31 March 2016. The cause of action arose on
31 March 20 l 6; the debt became due on this date.12
The claim would have prescribed on 30 March 2019.13
Service of the claim against the second defendant was effected on 22 March 201914 on
the Office of the State Attorney .
The letter of demand (notice) was sent by registered mail on 18 February 2019 to the
Director of Public Prosecutions. 15 Notice should have been given on or before 30
September 2016. 16 According to both the plaintiff and the second defendant the notice
was only given on 18 March 2019.17 The sixty days before summons could have
legislatively legally been served thus expired on or about 3 May 2019.
Condonation for non-compliance with the Act of s 3 ands 5 was granted on 9 June 2022
(June 2022 -order). This is the order:
'IT IS ORDERED IBAT
I. The Applicant 's failure to comply with the provisions of Section 3 of Act 40 of 2002 is
condoned ;
2. The Applicant's premature service of the summons upon the Respondents in the main
proceedings under case 1294/2019 is condoned .'
[4] Counsel for the second defendant correctly argued that notwithstanding the
condonation granted, and in terms of the prevailing legislation, the service of the claim had
only happened when the 60 days -period have expired, and not 22 March 2019. The court that
12
13
14
IS
16
17 Application for condonation by plaintiff handed in as exhibit B on 11 June 2024 at para 21: 'It is common
cause between the parties that the cause of action in respect of the 2nd Respondent arose on 31 March 2016
and the notice should have been given on or before 30 September 2016. I only gave the notice on the 18th of
March 2019.'
Heads of argument by counsel for the plaintiff dated 10 June 2024 at para 3.4.
See the return of service at page 4 of the "Index: Pleadings" bundle dated 14 Ma.n::h 2023.
See page 3 9 and further "Index: Pleadings" bundle dated 14 March 2023.
Applicationforcondonation by plaintiff handed in as exhibit Bon 11 June 2024 at para 21.
In their heads of argument for the second defendant at paragraph 1. I they refer to 13 February 2019, but it
was only the Minister of Justice & Constitutional Development and the Minister of Police that was notified
on 13 February 2019. At para 21 of the founding affidavit of the plaintiff in the condonation application
(Ex.hibitB dated 14 June 2024) the date is stated as 18 March 2019. At para 11 of defendants ' plea, they also
refer to 18 March 2019 (page 6 of the defendants ' plea; page 67 of the bundle "lndex: Notices" dated 14
March 2023).
8
dealt with the condonation did not make any declaration on prescription since it was not applied
for it to do so. It only condoned the early service. The finding of the court that granted the
condonation is correct because the claim was not prescribed at the time of the application . The
claim became prescribed in terms of s 5(3) of the Act after the court granted the condonation
for the premature service. The court did not make a ruling on the effect of s 5(3) of the Act on
the order. Section 5(3) of the Act is mandatory .18 The June 2022 -order did not disturb the
working of s 5(3) of the Act.
[5] The above finding is made with due awareness of the fact that the Act was introduced
to harmonize periods of prescription of debts owed by organs of state, and to make provision
for a uniform requirement for the giving of notice in connection with the institution of legal
proceedings . The Act came after a decision in the Constitutional Court in Mohlomi v Minister
of Defence19 (Mohlomi}. The Act is meant not only to bring consistency to procedural
requirements for litigating against organs of state but also, it is clear, to render them compliant
with the Constitution . The way in which it seeks to achieve a procedure that is not arbitrary and
that operates efficiently and fairly both for a plaintiff and an organ of state is to give a court the
power to condone a plaintifrs non-compliance with procedural requirements in certain
circumstances . Thus, access to courts is facilitated , while at the same time procedures against
large governmental organizations that need to keep their affairs in order, are regulated .20
[6] The purpose of having special requirements in place for the institution of action against
a state body was depicted by Didcott J inMohlomi :
''Rules that limit the time during which litigation may be launched are common in our legal system as
well as many others. Inordinate delays in litigating damage the interests of justice. They protract the
disputes over the rights and obligations sought to be enforced, prolonging the uncertainty of all
concerned about their affairs. Nor in the end is it always possible to adjudicate satisfactoril y on cases
that have gone stale. By then witnesses may no longer be available to testify. The memories of ones
whose testimony can still be obtained may have faded and become unreliable . Documentary evidence
may have disappeared . Such rules prevent procrastination and those harmful consequences of it. They
thus serve a purpose to which no exception in principle can cogently be taken."'21
18
19
20
21 Moh/aka v Minister of Finance and Others (12283/07) f2008] ZALC 152; (2009] 4 BLLR 348 (LC); (2009)
30 ILJ 622 (LC) (13 November 2008) paras 49-55.
Mohlomi v Minister of Defence (CCT41/95) [1996] ZACC 20; 1996 (12) BCLR 1559; 1997 (1) SA 124 (26
September 1996).
Minister of Safety and Security v De Witt (588/2007) (2008] ZASCA 103; 2009 (1) SA 457 (SCA) (19
September 2008). Also see John Saner, Civil Procedure , Prescription in South African Law, Chapter 1
Introduction, 1.5 Other statutory time limitations , Last Updated: August 2023 -SI 34, LexisNexis .
Mohlomi fn 9 para 11.
9
[9] Meritless appeals may not be allowed. The test in an application for leave
to appeal is simply whether there are any reasonable prospects of success in an
appeal, not whether a litigant has an arguable case or a mere possibility of success.
The Supreme Court of Appeal (SCA) has in the past criticized the regularity with
which leave to appeal is granted in matters not deserving its attention. Marais AJ
stated that
" ... The inappropriate granting of leave to appeal to this court increases the litigants' costs and
results in cases involving greater difficulty and which are truly deserving of the attention of
this court having to compete for a place on the court's roll with a case which is not."22
[10] The right to appeal is, among others, managed by the application for leave
to appeal. It may not be abused but the hurdle of an application for leave to appeal
may never become an obstacle to justice in the post-constitutional era. Section 17
of the Superior Courts Act 10 of 201323 is the law. The prevailing law as it
developed was clarified in HB (Nee D.J) v R.JB (Leave to Appeal)24 in that a
court may not grant leave to appeal where the threshold which warrants such leave
has not been cleared by the applicant. The threshold has been given legislative
force and clarity.
[ 11] With regard to the meaning of reasonable prospects of success, it was held
in S v Smith25 as follows:
'What the test of reasonable prospects of success postulates is a dispassionate decision, based
on the facts and the law, that a court of appeal could reasonably arrive at a conclusion different
to that of the trial court. In order to succeed, therefore, the appellant must convince this court
22 Shoprite Checkers (Pty) Ltd v Bumpers Schwarmas CC and Others (231/2002) [2003) ZASCA 57; [2003) 3
All SA 123 (SCA); 2003 (5) SA 354 (SCA) (30 May 2003) para 6.
23 '17. Leave to appeal. -(1) Leave to appeal may only be given where the judge or judges concerned are
of the opinion tbat-
(a) (i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compellin g reason why the appeal should be heard, including conflictin g
judgments on the matter under consideration;
(b) the decision sought on appeal does not fall within the ambit of section 16(2)(a); and
(c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would
lead to a just and prompt resolution of the real issues between the parties.'
24 H.B (Nee D.J) v R.J.B (Leave to Appeal) (21480/2014) [2024) ZAGPPHC 401 (2 April 2024).
25 S v Smith [20111 ZASCA 15; 2012 (1) SACR 567 (SCA) para 7.
10
on proper grounds that he has prospects of success on appeal and that those prospects are not
remote but have a realistic chance of succeeding. More is required to be established than that
there is a mere possibility of success, that the case is arguable on appeal or that the case cannot
be categorised as hopeless. There must in other words, be a sound, rational basis for the
conclusion that there are prospects of success on appeal.'
[12] The decision of Ramakatsa and Others v African National Congress and
Another6 did not lower the baseline. It also reminded that there might exist some
other compelling reasons why the appeal should be heard.
Conclusion
[13] The applicant/plaintiff did not meet any of the thresholds in law that will
allow this court to send the matter on appeal. The application for leave to appeal
must be denied and costs must be for the account of the unsuccessful party.
Order
[14] In result the following order 1s made:
'The application for leave to appeal is dismissed with costs on party and party
scale C.'
Opperman J
26 Ramakatsa and Others v African National Congress and Another (724/2019) [2021] ZASCA 31 (31 March
2021) para 1.
Appearances
On behalf of plaintiff
On behalf of the 2nd defendant TSNYDERS
Johannesburg
Mlozana Attorneys Inc.
Bloemfontein
GJMWRIGHT
Bloemfontein
Office of the State Attorneys
Bloemfontein 11