(1)
(2)
(3) REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION , POLOKWANE
REPORTABLE : YES/NO
OF INTEREST TO THE JUDGES: YES/NO
REVISED
DATE: ~tr-f?~ SIGNATUR E
In the matter between:
MOGOLO ALEX T JA T JI
AND
MINISTER OF POLICE ••
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT CASE NO: 8943/2022
APPLICANT
1 ST RESPONDENT
2ND RESPONDENT
2
MANGENAAJ
[1] Mr Mogolo Alex Tjatji alleges that he was arrested by members of the South African
Police Services on or about 31 January 2018. Subsequent to the arrest he was
detained at Pretoria West vehicle impound where was assaulted and tortured by
the police. He was later transported to Seshego where he was further detained until
he appeared in court on 02 February 2018. The matter was remanded for further
investigation to the 07 February 2018 where he was granted bail of R5 000.00. He
attended court until the charges were withdrawn against him on 21 August 2019.
[2] He instituted legal proceedings against the Minister of Police and the National
Director of Public Prosecutions on 18 August 2022. On the same date he dispatched
a letter of demand to both the Minister of Police and the National Director of Public
Prosecutions required by Section 3 of the Institution of Legal Proceedings
Against Certain Organs of State Act, 40 of 2002.
[3] The defendants defended the proceedings through the office of the state attorney
which pleaded specially on behalf of the Minister of Police that Mr Tjatji has failed to
comply with section 3 of the Institution of the Legal Proceedings Against Certain
Organs of State Act 40 of 2002 in that he failed to give notice of his intention to
institute the legal proceedings within the required period of six months from the date
on which the date became due and payable. Mr Tjatji has also not applied for
condonation and the Minister has not consented .
[4] Upon receipt of the plea, Mr Tjatji applied for condonation. The Minister is opposing
it on the basis that the claim for which he seeks to be compensated prescribed in
January 2021 after the lapse of three years from the date of the alleged assault,
torture and detention .
[5] The principles governing condonation are trite and the overall considerations is the
interests of justice. To enable the court to make a determination as to what the
interests of justice requires in a particular case, an applicant for condonation must
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provide a detailed and reasonable explanation for the delay and same should
account for the entire period.
[6] Before the court could exercise its discretion on whether to grant condonation,
section 3(4)(b) of the Institution of Legal Proceedings Against Certain Organs
of State Act, 40 of 2002 requires it to be satisfied that: -
(a) The debt has not been extinguished by prescription.
(b) Good cause exists for the failure by the creditor.
(c) The organ of state was not unreasonably prejudiced by the failure.
[7] The three requirements mentioned above are conjunctive and the applicant has to
satisfy all of them. ~--
--~ ...
[8] In relation to prescription, it was submitted on behalf of the applicant that he only
acquired complete cause of action giving rise ·to the claim on 11 July 2022 after his
brother spoke to one of his acquaintances who . .is a legal practitioner. It is noteworthy
that Mr. Tjatji does not disclose the names of the brother as well as the legal
practitioner. The Minister of Police rejects the contention by Mr Tjatji that he acquired
complete cause of action in July 2022. He knew that he was arrested.tortured and
detained in police cells-.. by members of the SAPS. He had a benefit of legal
representation throughou ·t the criminal proceedings and it is unfathomable that he
could not have known that his delictual claim lies against the Minister of Police in
[9] ,•,
relation to th~ unlawful arrest, assault and detention. He was simply dilatory in
asserting his rights and the court cannot help him because his claim has prescribed
due to lack of action on his part .
. _The·re is merit in this contention by the Minister. One does not need sophistication
to· know that a claim for unlawful arrest lies against the police. Mr Tjatji on his own
version knew that he has a claim against police but was afraid or reluctant to do so
because he did want to have the criminal charges reinstated . His fear cannot be
elevated to lack of knowledge as to the identity of the creditor against whom the claim
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for the recovery of the debt should be instituted. I therefore find without hesitation
that the claim against the Minister of police has prescribed .
[1 OJ The affidavit by Mr Tjatji is scant with information and lacks the necessary details to
enable the court to make an assessment of the extent of his innocence in so far as
the delay in instituting the proceedings is concerned . In paragraph 4.19 he states that
after the charges were withdrawn , he did not understand whether the matter was still
proceeding until he was advised that it was indeed finalized. He was later informed
by his friends that it means that the case has been permanently withdrawn and that
he could sue the state, however he was afraid to approach any attorney for assistance
as he thought that the state would reinstate the criminal proceedings.
[11) The explanation given above is wholly inadequate and readily admits itself to being a
contrived version. He fails to state when exactly did his friends tell him that the matter
is finalised and that he can proceed to institute the proceedings. He also does not
state at what point did his fear of the reinstatement of criminal charges dissipated .
In this regard Mr Tjatji has failed to show good cause.
[12] The Minister has alluded to the prejudice he will suffer if the court were to grant
condonation . The applicant has not set out both in this condonation application and
the particulars of claim, the names of the police officials who allegedly arrested,
assaulted and tortured him. This information, to the extent it is known, should be
furnished so that proper investigations can be conducted to establish liability on the
part of the Minister. The delay in furnishing it causes prejudice as the Minister requires
adequate time to investigate the allegations , verify documentation at police stations
and courts where the accused person alleges to have appeared and remanded in
custody.
[13) I have given due regard to the averments contained in the applicant's affidavits and I
am not persuaded that he has made out a case for condonation . He failed to satisfy
the three requirements enlisted in section 3(4)(b) of the Institution of Legal
Proceedings against Certain Organs of State Act 40 of 2002.
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[14] In the premises , the following orders are made:
14.1. Application for condonation is dismissed.
14.2. The applicant is ordered to pay costs on a party and party scale A of the High
Court.
FOR APPLICANT APPEARANCES ~ M~NGENA. AJ
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
... _.
MAKHAFOLA & VERSTER .IN CORPORA TED
FOR RESPONDENTS: STATE ATTORNEYS POLOKWANE
HEARD ON 14 MAY 2025
DELIVERED ON ..
30 MAY 2025