IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, BISHO )
APPEAL CASE NO.: CA 17/2024
In the matter between:
AKHONA KOSI Appellant
and
MINISTER OF POLICE Respondent
JUDGMENT
ZONO AJ:
Introduction
[1] This appeal emanates from the Zwelitsha Magistrate’s court, court a quo. The
appeal was lodged against the Judgment of the court a quo of 13th March
2024 dismissing appellants applicatio n for condonation of late service of a
notice in te rms of section 3(1)(a) of Act 4 0 of 20021. Aggrieved by the
judgment of the court a quo , the appellant delivered his notice of appeal. The
appeal became ripe for hearing and same was heard on 20th September
2024.
1 Institution of legal Proceedings Against Certain Organs of State Act 40 of 2002 .
Background
[2] On 19th June 2023 t he appellant instituted acti on proceedings against the
respondent in the Zwelitsha Magistrate’s Court, under Case No 270/2023 for
damages arising from his unlawful arrest and detention which allegedly took
place on 22nd July 2022 at Tshatshu Location, King Wi lliams Town.
[3] It appears that a notice to institute legal proceedings was issued on 22nd May
2023 in terms of a letter dated 19th May 2023. The letter was clearly late as
the period of six (6) months from the date of the alleged arrest and detention
had already expired.
[4] Having realized that the appellant was out of time in respect of the delivering
notice of institution of legal proceeding s, the respondent raise d a special plea
of non -compliance with the provisions of section 3 of Act 40 of 2002 which
section require s that the notice must be served upon the organ of state within
six (6) months of the date when the debt became due. The special plea was
filed on 10th September 2023.
[5] The special plea prompted the launching of an application in terms of section
3(4) of Act 40 of 2002 . On 20th November 2023 the appellant launched an
application in terms of which the appellant sought condonation of late delivery
of a notice to institute legal proceeding s in terms of section 3(1)(a) of Act 40 of
2002. The application was supported by an affidavit.2
[6] The application was o pposed by the respondent. Both the notice to oppose
and answering affidavit were filed of record. The appellant did not deliver his
replying papers. The matter was then heard as an opposed matter on 01st
February 2 024 and 06th February 2024 respectively. The judgment of the court
a quo was delivered on 13th March 2024.
2 Rule 6(1) of the Uniform Rules .
[7] Aggrieved by the judgment, the appellant delivered notice of a ppeal on 03rd
April 2024. In the notice of appeal, the appellant criticised the judgment for
only looking at the prospects of succes s in the main action and for ignoring
the explanation given for the delay and the bona fides of the appellant.
Parties ’ versions
[8] The appellant alleges that he was unlawfully arrested and detained by the
members of S outh African Police Service on 22nd July 202 2. The arrest was
without a warrant. The appellant was released by the respondent’s employees
without having appeared in court. The appellant always kne w that he had
damages claim against the respondent but he is a lay and unsophisticated
person . He always thought that the investigating officer would revert and
advise them wh en the case was closed.
[9] The understanding that the investigating officer would come and announce if
the matter was closed changed when his acquaintance advised him to
approach an attorney who would assist him to institute legal proceedings. The
appellant consulted his attorneys who advised him that his claim would be
instituted by the Independent Police Investigative Directorate ( IPID). The
attorneys penned a letter to the Zwelitsha Police Station requesting co pies of
the docket under Cas No: 104/07/2022 to which no response was received.
The attorneys advised of the possibility to pursue a request for documents in
terms of the Promotion of Access to Information Act 2 of 2000 (PAIA) , but the
appellant discouraged that ro ute. A notice in terms of section Act 40 of 2 002
dated 19th May 2023 was then sent to the National Commissioner, S outh
African Police Service .
[10] On 09th June 2023 appellant ’s summons for recovery of damage s arising from
his unlawful arrest and detention was issued and service thereof was effected .
The appellant concludes by saying his claim has not prescribed and that the
respondent was not prejudiced by the delay or by the failure to timeously
serve the notice. He concludes that his case enjoys prospects of success in
the main case and therefore it is in the interests of justice that condonation be
granted.
[11] The essence of the respondent’s case is that the debt became due on 22nd
July 2022 when the appellant became aware of the identity of the organ of
state and the factors giving ri se to the debt. The respondent states that the
cause of action arose on 22nd July 2022 when the appellant was allegedly
arrested and detained by the m embers of South African Police Service . He
knew of these facts and the fact that the arr est and detention were unlawful
on 22nd July 2022.
[12] The respondent criticizes the appellant for his failure to set out the date when
his acquaintance advised him t hat he must approach the attorney to institute a
claim against the respondent. As a corrollary there is no explanation for the
delay between the date when the appellant met the acquaintance and the
date when he first approached his attorneys of record.
[13] The respondent states that the appellant always knew that he had a damages
claim against the respondent. He disputes that the appellant reasonably
believed that his claim would be launched by the IPID. The respondent further
disputes the relevance of the closure of the criminal case as alleged by the
appellant. According to the respondent what is important i s the fact that there
was an arrest and detention. The respondent concludes by saying the
explanation p roffered by the appellan t for the late service of the notice was
unreasonable and it fail ed to show a good cause in terms of the empower ing
provision .
Judgment a quo
[14] The court a quo found the explanation given by the appellant to be insufficient
and wholly unacceptable. The basis of the court a quo’s finding was inter alia
that, the appellant’s explanation did not reveal the basis upon which the
appellant expected the police to revert to him and report the progress of a
case where he was not the complainant. It was also silent in relation to the
details of the arrest and release of t he appell ant. For instance, it was not
stated whether the appell ant was informed of the reason for his arrest and
why he was released without appearing before court. It did not say whether
the case docket was actually requested in respect of the matter. It also fail ed
to refer to the date on which the appell ant received the advice from his
acquaintance to approach an attorney in order to lodge a claim against the
respondent. I n the court a quo ’s opinion , this date is relevant for calculating
the six (6) month -period from then to the date of issuing of the notice.
[15] Secondly , the court a quo found that the appellant did not demonstrate any
prospects of success in the main action. It found that it was not enough to
allege that the arrest was unlawful merely because it was conducted without a
warrant. Section 40(1) of the Criminal Procedure Act 51 of 1977 (CPA)
authorizes arrest without a warrant. In the main action and con donation
application, the appell ant does not lay any factual foundation to substantiate
his cause of action. The appellant was criticised for having failed to prove that
the respondent did not meet the requirement s of sec tion 40(1)(b) and 50 of
the CPA.
[16] It was on the basis of the two grounds outlined in paragraph 14 and 15 above
that the court a quo dismissed appellant’s application for condonation. It is
against this judgment that a notice of appeal was filed. The a ppellant assails
the court a quo’s judgment on the basis that it erred in refusing to accept his
explanation as sufficient. The fact that the delay w as only four months ,
coupled with the fact that the appellant is a lay and unsophisticated person ,
should have been considered when considering the appellant’s explanation.
The appellant further complains about the test applied by the court a quo in
arriving at a conclusion that there was no prima facie case against the
respond ent. That affects , directly , the prospects of success in the main action.
Discussion
[17] With regard to the explanation of the delay the appellant offers the following
explanation under the caption : “Good C ause ”:
“7.1 I always knew that I have damages claim against the
respondent but I am a lay and unsophisticated person.
7.2 I was always thought that the investigating officer would revert
and advise us that the case against me was closed.
7.3 My understanding of the legal position changed after my
acquaintance informed me that I must approach an attorney to
institute a claim against the respondent.
7.4 On 03 May 2023 I managed to secure a consultation with Khaya
Dywanisi Attorneys . Kayalethu Dywanisi of Khaya Dywanisi
attorneys informed me that my claim against the respondent
would not be launched by the IPID.”
[18] Firstly , it is not in dispute that the appellant is a lay and unsophisticated
person. Although the appellant knew that what the police did to him was
unlawful and that it could give rise to a claim for the recovery of damages, he
harbour ed a belief that the Investigating Officer or IPID would assist him. After
he was ad vised , the appellant approached the attorney s on 03rd May 2023.
During consultation with an attorney the correct position of the law was
articulated. The requisite notice dat ed 19th May 2023 was served on 22nd May
2023. This explanation did not find favour in the court a quo .
[19] The court a quo , rejecting appellant’s explanation had the following to say:
“17. This explanation is, in my view, insufficient and wholly unacceptable.
The explanation does not reveal the basis in which the applicant
expected the police to revert to him and report the progress of a case
where he was not the complainant. It is also silent o n the details of the
arrest and release of the applicant. For instance, it is not stated whether
the applicant was informed of the reason for his arrest and why he was
released without appearing before court. It does not say whether there
was a case docket actually registered in respect of the matter. It also
fails to refer to the date on which the applicant received the advice from
his acquaintances to approach an attorney in order to lodge a claim
against the respondent. T his date i s, in my opinion , relevant in
calculating the six (6) months period from then to the date of issuing of
the notice”. (sic)
[20] A combination of two attributes, to wit, laymanship and unsophistication, can
lead one not to understand and approach things in a way and manner in
which a lawyer and sophisticated person can. The court a quo has not dealt in
its judgment with these two attributes, which I consider to be weighty
considerations in this matter. The c ourt a quo ’s failure to deal with these
aspects in its process of reasoning and analysis of evidence is serious.
[21] Gwala AJ in Macingwane3 had the following to say:
“35…. A presiding officer, accounts for his or her judgment by giving an
analysis of the facts before him or her leading to a conclusion ultimately
reached. This is fair to both the complainant and the accused.
Certainly, the accused person is entitled to know on the basis of what
evidence is he or she found guilty and by what evidence did the state
managed to discharge the onus resting on it. Sadly, it does not appear
from the judgment of the Magistrate how the court was satisfied that the
guilt of the appella nt was proved beyond a reasonable doubt.”
[22] There is plethora of authorities to the effect that in the process of reasoning
and analysis of evidence and facts presented before the court, in reaching its
conclusion the court must account for all evidence. Some of the evidence
might be found to be false, some of it might be found to be unreliable and
some of it might be found to be only possibly false or unreliable, but none of it
3 Macingwane v S (CA&R 20/18) [2019] ZAECMHC 76 (20 November 2019) Para 35 .
may simply be ignored.4 Appellant’s evidence or version that he is a layman
and that he is unsophisticated is central to the explanation the appellant gave.
His failure s and shortcomings are attributable to those personal attributes.
[23] Ignorance, inexperience, and naiveté , indi vidually or in any combination can
reasonably lead to a belief that the state in the form of the members of S outh
African Police Service , whose duty is to protect and secure the individual’s
rights , to uphold and enforce the law,5 would revert back to the appe llant and
advise of the status o f the case. If damages for unlawful arrest and detention
had been suffered, he would expect the specialized police watchdog, IPID ,
an independant police complainants body ,6 to follow that up.
[24] The Supreme Court of A ppeal in Madinda7 appositely remarked as follows:
“18.3 ….. Ignorance, inexperience, naivete, and simple lack of
intelligence, individually or in any combination, could it seems to
me, conduce to a reasonable belief that, once a complaint has
been laid, the State, with the resources at its disposal, and as
what sh e described in her reply as ‘the primary agent for the
protection and enforcement of . . . legal rights’, will follow it up;
cf Mugwena ’s case, above, at 155H -156E. Indeed there is a
provision in the Criminal Procedure Act (s 300(1)) which enables
a court to make a compensatory order having the effect of a civil
judgment, so that her belief finds some basis in law as well.”
Both the respondent’s answering affidavit and the court a quo’s judgment do
not suggest that appellant’s laymanship and unsophistication cannot
contribute to a delay.
4 Haarhoff and another v Director of Public Prosecutions, Eastern Cape 2019(1) SACR 371 SCA;
2019 (1) A ll SA 585 SCA Para 37; S v Van Der Meyden 1999 (1) SACR 447 (W) at 44J-450C;
Macingwane v S (CA&R 20/18 )[2019] ZAECMHC 76(20 November 2019) Para 32 .
5 Section 205 (3) of the Constitution .
6 Section 206 of the Constitution .
7 Madinda v Minister of Safety and Security, RSA 2008 (3) A ll SA143 (SCA); 2008 (4) SA 312
(SCA) Para 18.3 .
[25] The appella nt was advised by his attorney, Mr Dywa nisi on 03rd May 2023 that
his claim against the respondent would not be launched by IPID. Pu tting it
pointedly, the appellant became aware of his rights only w hen he consulted
with the attorney . The appellant was at all material times aware that his ar rest
and detent ion were unlawful, but was unaware of how to proceed to enforce
his right to freedom and security.8 Appell ant’s awareness of his legal rights
and the procedure to pursue his claim came to surface only after 03rd May
2023 when he had consulted with his legal representative. The appell ant
could not have known about the requirement of a notice to institute legal
proceedings before meeting his legal repre sentative. It is so because notice to
institute legal proceedings i s a legal requirement ,9 and it should be accepted
that the appellant has no legal knowledge to enable him to understand court
proceedings , processes and requirements.
[26] In conclusion on this aspect, a notice to institute legal proceedings is a
statutory requirement which serves as a precursor to litigation. Those who are
not pr actising legal practitioners may not be privy to the intricate requirements
of the provision that p rovides for the service of the notice. By way of example,
they may not know, in the whole scheme of section 3 of the Act, the relevance
and meaning of the principle of “prescription ,” “good cause, ” the person upon
whom the notice must be served, the relevant time periods , etcetera. One
does not need only a legal qualification , but also practical knowledge of the
provisions of section 3 of Act 40 of 2002. A person, who is not only a lay
person, but als o an unsophisticated individual, cannot reasonably be
expected to be astute with the requirements of a notice without the assistance
of a legal representative . I find appellant ‘s explanation to be sufficient and
acceptable.
[27] With regard to the prospects of success the court a quo found:
“20. In terms of section 40(1)(b) a peace officer has a discretion to
arrest any person whom he reasonably suspects of having
8 Section 12(1) of the C onstitution .
9 Section 3 of Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 .
committed a schedule 1 offence without a warrant. Section 50
make s provision for detention of arrested person at a police
station. The section further stipulates that the arrested person
must be brought to court as soon as reasonably possible but
within 48 hours after the arrest , provided such arrested person is
not released without being charged.
21. I am unpersuaded that the applicant has demonstrated any
prospects of success in the main action. It is not enough for the
applicant to allege that the arrest was unlawful merely be cause
it was conducted without a warrant. Section 40(1) of Act 51 of
1977, authorises arrest without warrant in seventeen
circumstances, including the one in paragraph (b) of the section.
In his founding papers , in the action and the condonation
applicatio n, the applicant does not lay any factual foundation to
substantiate his cause of action , that is , the alleged unlawful
arrest and detention. He also failed to file any replying affidavit
setting out facts to rebut the respondent’s averments that the
arres t and detention were justified. Consequently, he failed to
prove that the respondent did not m eet the requirements of
sections 40(1) (b) and 50 ”.
[28] Good cause usually comprehends the prospects of success on the merits of
a case.10 Prospects of success must relate to the merits of the case or to the
proposed action. The phrase “if it is satisfied ” (referring to the court) in section
3(4)(b) has lo ng been recognised as setting a standard which is not proof on a
balance of probability. Rather it is the overall impression made on a court
which brings a fair mind to the facts set up by the parties.11
[29] The appellant, in his founding affidavit alleges that:
10 Madinda v Minister of Safety and Security , RSA 2008 (3) A ll SA 143 (SCA); 2008 (4) 312 (SCA)
Para 12; Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) at 765 D -E.
11 Die Afrikaanse Pers Beperk v Neser 1948 (2) SA 295 (C) at 197; Madinda v Minister of Safety
and Security (Supra) Paras 8, 10, and 12 .
“6.1.1 On 22 July 2022 at Tshatshu Location in King Williams Town I
was unlawfully arrested without a warrant of arrest by various
members of the South African Police Service who were at
material times acting within the course and scope of their
employment.
6.1.2 After to my arrest on 22 July 2022 by members of the South
African Police Services, I was detained at Zwelitsha Police
Station and King William ’s Town Police Station.
6.1.3 I was arrested by the members of the South African Police
without reasonably or probable cause.
6.1.4 I was released from detention by the employees of the
respondent on 25 July 2022 without appearing in court” (sic).
These allegations are similarly couched as those contained in paragraph s 4,
5, and 6 of the particulars of claim.
[30] It is plain from the aforesaid paragraphs that appellant’s arrest was effected
without a warrant of arrest. The appellant has pertinently alleged that his
arrest was unlawful. These allegations are common cause. It is sufficient
simply to plead that the appellant was unlawfully arrested and detained. It is
so because interference with physi cal liberty is prima facie unlawful12. Once it
is pleaded that a person was arrested and detained and that fact is admitted,
the onus shifts to the respondent to justify the arrest.13
[31] The Constitutional Court in Zealand14 had the following to say:
12 T.N v Minister of Police (2579/2020) [2024] ZAECMHC 95 (17 December 2024) Para 12
13 Minister of Safety and Security v Sekhoto and another 2011 (1) SACR 315 (SCA);2011(2) A ll
SA 157(SCA); 2011 (5) SA 357 (SCA) Para 7 -8, Minister of Law and Order v Hurley 1986 (3) SA
568 (A) at 589 E -F
14 Zealand v Minister of Justice and Constitutional Development 2008 (2) SACR (1) (CC) Para 24 -25
“24. There is another, more important reason why this Court should
rule in the applicant’s favour. The Constitution enshrines the
right to freedom and security of the person, including the right
not to be deprived of freedom arbitrarily or without just cause, as
well as the founding value of freedom. Accordingly, it was
sufficient in this case for the applicant simply to plead that he
was unlawfully detained. This he did. The respondents then
bore the burden to justify the deprivation of liberty, whatever
form it may have taken.
[25] This is not something new in our law. It has long been firmly
established in our common law that every interference with
physical liberty is prima facie unlawful. Thus, once the claimant
establishes that an interference has occurred, the burden falls
upon the person causing that interference to establish a ground
of justification. In Minister V an Wet en Order v Matshoba , the
Supreme Court of Appeal again affirmed that principle, and then
went on to consider exactly what must be averred by an
applicant complaining of unlawful detention. In the absence of
any significant South African authority, Grosskopf JA found the
law conc erning the rei vindicatio a useful analogy . The simple
averment of the plaintiff’s ownership and the fact that his or her
property is held by the defendant was sufficient in such cases.
This led that court to conclude that, since the common law right
to personal freedom was far more fundamental than ownership,
it must be sufficient for a plaintiff who is in detention simply to
plead that he or she is being held by the defendant. The onus of
justifying the detention then rests on the defendant. There can
be no doubt that this reasoning applies with equal, if not greater,
force under the Constitution.”
The appellant pleaded that he was unlawfully arrested and detained without a
warrant by members of South African Police Service.
[32] I accordingly find that the appellant has succeeded in show ing that he enjoys
good prospects of success in his action. I say this for another reason. The
purpose of arrest is to bring the suspect to trial or to justice.15 This purpose
was never intended to be achieved by the members of S outh African Police
Service . The appellant was kept in custody without appearing before court for
the duration of his detention. He was arrested and detained on 22nd July 2022
and was rel eased on 25th July 2022 by the respondent’s employees without
appearing in court. In the light of the above I find that the appellant has good
prospects of success.
[33] O’Regan J said in S v Coetzee16:
“159. These are separate questions. They raise two different aspects
of freedom: the first is concerned particularly with the reasons
for which the state may deprive someone of freedom; and the
second is concerned with the manner whereby a person is
deprived of freedom.……... our Constitution recognises that both
aspects are important in a democracy: the state may not deprive
its citizens of liberty for reasons that are not acceptable, nor,
when it deprives citizens of freedom for acceptable reasons,
may it do so in a manner which is procedurally unfair. The two
issues are related, but a constitutional finding that the reason for
which the state wishes to deprive a person of his or her freedom
is acceptable, does not dispense with the question of whether
the procedure followed to deprive a person of liber ty is fair. ”
[34] In its plea the respondent states that the appellant was detained to secure his
first attendance in court. He puts it thus:
“5.2 In amplification of the above denial, the defendant pleads that the
plaintiff was detained for purposes of securing his first attendance at
court, in accordance with section 50 of the Act ,” (sic).
15 Minister of Safety and security v Sekhoto and another (Supra ) Para 42 and 44 .
16 S v Coetzee 1997 (3) SA 527 (CC), 1997 (4) BCLR 437 (CC); 1997 (1) SACR 379 (CC ) Para 159 .
It is also known that the appellant never appeared in court. The reasons for
the appellant’s arrest and detention are illusive. The respondent’s failure to
bring the appellant to court needs to be explained, and the duty to do that lies
with the respondent . On the face of it, the appellant was arrested for reasons
that are not acceptable, unless the contrary is proved.
Conclusion
[35] To summarise , I found above that the appellant has reasonably and
sufficiently explained his delay. The central issue that was a common cause is
the fact that the appellant is a lay and unsophisticated person. This
consideration is an anchor to all other allegations that are necessary to
sufficiently explain the delay to serve a notice in terms of section 3 of Act 40 of
2002. It is of ca rdinal importance that the requisite notice is a legal notice or a
notice prescribed by the law. The requirement of a notice, in its very nature ,
requires or calls for one to know the law in terms of which the said notice has
to be sent or served. As an unsophisticated lay person the appellant could not
be expected to know the legal requirements surrounding the notice to in stitute
legal proceedings. It should be accepted that he became aware of the notice
requirement only when and after he consulted with his legal representative on
03rd May 2023 .
[36] The length of the period should be taken into account . The court a quo has
accepted that the delay to serve the notice is a four -month delay , and
therefore no prejudice has been or will be suffered by the respondent due to
appellant’s late notice. Technical objections to less than prefect procedural
steps should not be permitted, in the absence of prejudice , to interfere with
the expeditious and, if possible, inexpensive decision of cases on their
merits17. Police excesses do lead to breaches of the peace18 and they
should not be allowed lightly. There is a higher duty on the State to respect
17 Trans -African Insurance CO Ltd v Maluleka 1956 (2) SA 273 at 277 A -B.
18 Ngqukumba v Minister of Safety and Security 2014 (5) SA 112 Para 12 .
the law, to fulfil procedural requirements and to tread carefully when dealing
with rights.19
[37] The appellant has good prospects of success on merits or in the main action.
The members of S outh African Police Service had has a burden legally
placed on their shoulders to justify the violation of the appellant’s right to
freedom and security20. The slope is too steep for them to climb especially
that the appellant was not even caused to appear in court. The legal purpose
of arresting a person, which is to bring him to trial or justice , was not fulfilled.
Failure to fulfil that purpose has to be explained by the members of the South
African Police Service who were responsible for his arrest and detention . In
the final analysis the appeal succeeds.
[38] It is appropriate to remember an injunction made by the Supreme Court of
Appeal where Leach JA21 remarked as follows:
“30…. The function of public servants and government officials at
national, provincial and municipal levels is to serve the public, and the
community at large has the right to insist upon them acting lawfully and
within the bounds of their authority. Thus wher e, as here, the legality of
their actions is at stake, it is crucial for public servants to neither be coy
nor to play fast and loose with the truth. On the contrary, it is their duty
to take the court into their confidence and fully explain the facts so t hat
an informed decision can be taken in the interests of the public and
good governance. As this court stressed in Gauteng Gambling Board
and another v MEC for Economic Development, Gauteng, our present
constitutional order imposes a duty upon state officials not to frustrate
the enforcement by courts of constitutional rights. ”
19 MEC for Health, Eastern Cape and Another v Kirkland Investments (Pty) Ltd 2014 (3) SA 481
(cc) Para 82 .
20 Section 12(1) of the Constitution .
21 Kalil NO and Another v Mangaung Metropolitan municipality and Others 2014(3) A ll SA 291
(SCA), 2014 (5) SA 123 (SCA) Para 30 .
[39] There is a prima facie case that the members of South African Police Service
have failed to comply with this duty. It prima facie appears that they have
failed to act lawfully and within the bounds of their authority. The respondent
has not taken the court into its confidence. A four-month delay to serve a
statutory notice, which do es not present any form of prejudice to the
respondent or his case, cannot be a good reason for serious opposition like
this one.22 Members of South African Police Service, like all organs of state,
have a Constitutional duty “to assist and protect the courts to ensure….
Effectiveness of the courts23”. They must assist the cour t to find the truth and
justly decide the matte r. The court can do that if South African Police Service
members are given an opportunity to fully explain the facts. This task lies
ahead to be undertaken in the trial court.
Costs
[40] The general rule is that costs should follow the result. That rule can be
deviated from if a litigant is seeking not a right, but an indulgence. Section
3(4) of the Act can only b e invoked when a litigant seeks permission to
enforce a right , which permission may be granted within prescribed statutory
parameters, and such an application i n terms of section 3(4) of the Act is only
necessary if the organ of state has relied on a creditor ’s failure to serve a
notice. In circumstances where an application for condonation is opposed,
costs should follow the result.24
[41] Accordingly, the respondent is liable to pay the costs of the appeal together
with the costs of the application for condonation in the court a quo; such costs
to include costs of the two counsel where employed.
Order
[42] In the circumstances I would make the following order:
22 Madinda v Minister of Safety and Security (Supra ) Para 30 .
23 Section 165 (4) of the Constitution .
24 MEC for Education KZN v Shange 2012 (5) SA 313 (SCA) Para 24; Premier, Western Cape v
Lackay 2012 (2) SA Para 25 .
42.1 The appeal is upheld with costs, such costs to include the costs
of two counsel where employed.
42.2 The order of the court a quo is set aside and replaced with the
following:
(a) Late service of applicant’s notice in terms of section 3(1)( a)
of the Institution of Legal Proceedings Against Certain Organs of
State Act 40 of 2002 is hereby condoned.
(b) The respondent is ordered to pay costs of the application,
such costs to include costs of two counsel where employed .
________________________________
A.S ZONO
ACTING JUDGE OF THE HIGH COURT
I agree.
______________________________
JGA LAING
JUDGE OF THE HIGH COURT
APPEARANCES:
For the Plaintiff : ADV METU
Instructed by : KHAYA DYWANISI ATTORNEYS
INC
1st Floor Hendricks Pharmacy Building
116 Cambridge Road
King Williams Town
Tel: 043 643 6109/084 219 7049
Email: khaya@kkdattorneys.co.za
Ref: K30
For the Defendant : ADV COTO
Instructed by : STATE ATTORNEY
Old Spoornet Building
17 Fleet Street
East London
Ref:474/23 -P25( Ms Mbenenge)
Email: nmbenenge@justice.gov.za
Tel:043 706 5100
Matter heard on : 20 September 2024
Date of delivery : 4 March 2025