[1] Reportable:
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2023-032993
YES/ NO
[2] Circulate to Judges: YES/ NO
Date: 15/08/2025 Signature
In the matter between:
MOSES ANDRIES THUBAKGALE Applicant
And
CITY OF TSHWANE METROPOLITAN MUNICIPALITY First Respondent
MINISTER OF POLICE Second Respondent
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JUDGMENT
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.Lntrod..uction
(1] The Applicant, plaintiff in the main action, seeks condonation for his
late service on the Respondents of the notice of his intention to
institute legal proceedings as provided for in section 3 of the Institution
of Legal Proceedings Against Certain Organs of State Act 2002, Act No .
4 of 2002 ("the Act")
(2] Both Respondents are Organs of State as defined in the Act. In their
respective pleas to the Applicant's particulars of claim, they have both
raised special pleas, firstly of prescription and secondly, that of non
compliance with the notice requirements provided for in the Act. It is
these special pleas that triggered the launching of this application.
[3] First Respondent is opposing the application on the grounds that I will
deal with later hereunder. Second Respondent did not file any
opposing papers.
FACTUALBACKGBOUND
[4) The Applicant, together with an accomplice, was arrested by Police
Officials of the First Respondent 20 April 2020 on charges of Unlawful
Possession of Ammunition, as well as Explosives. He was thereafter
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detained at the Atteridgeville Police Station. H e appeared in court on
several occasions and then released on bail. It is com m on cause that
later, charges against him were provisionally withdrawn.
[5] On 28 March 2023 , Applicant, through his attorney of record, sent via
registered post three {3} Section 3 Notices in terms of the Act. These
were addressed to:
(i) "The National Police Commissioner
(ii) The Provincial Commissioner Gauteng
iii) City of Tshwane Metropolitan Municipality."
[6] On 06 April 2023 applicant issued summons against the Respondents
claiming delictual damages based on what he alleges, was his
unlawful arrest and detention. These were served on the First
Respondent on 11 April 2023 and on the Second Respondent on 5 May
2023.
[7] First and Second Respondents filed their pleas on 22 and 21 June 2023
respectively. In their respective pleas, both Respondents raised
special pleas firstly of prescription, and secondly that of non
compliance with the provisions of Section 3 of the Act.
[8] This application was launched on 26 August 2023. First Respondent
opposed the application and filed its answering affidavit on 13 October
2023. Second Respondent did not file any opposing papers.
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I_SSU ES fOR DEIERM IN~
[9] The main issue for determination is whether the Applicant has
discharged its onus of proving and establishing all three (3)
jurisdictional requirements set out in section 3 of the Act against each
of the Re spondents, namely:
(i} That the debt has not been extinguished by prescription.
(ii) Good cause exists, for his failure to comply with the provisions
of the Act.
(iii} The Organs of State were not unreasonably prejudiced by his
failure to comply.
eARilE_S' SUBMISSIONS
Applicant
[10] In his submissions, Counsel for the Applicant contended that
the applicant has me t and satisfied all the jurisdictional requirements
provided for in Section 3 of the Act.
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[11] He submitted that in the first place, the matter has not
prescribed. As regards the delay, he pointed out that the Applicant is a
layman and was not aware of the procedural requirements provided
for in the Act and most importantly, the required notice in terms of
section 3 of the Act. It was only after his consultation on 28 March 2023
with his attorney of record that he became aware.
[12] He went on to submit that the Applicant has also demonstrated
that he has reasonable prospects of success on the merits, should the
application be granted.
[13] Lastly, he argued that Respondents will not be prejudiced in any
way, by the granting of the condonation application. This is because
the granting thereof does not amount to final determination of the
issues between the parties. Respondents will still have an opportunity
to present their cases and defend the claims against them, in a trial.
First Respondent
[14] Counsel for the First Respondent submitted that the Applicant
has failed to prove or satisfy the requirements of section 3 of the Act.
While he conceded that the debt has_not prescribed, the other two
jurisdictional requirements namely good cause_and absence of
QI.fil~ on the part of the First Respondent have not been proved.
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[15] As regard the~. he submitted that the Applicant has failed
to give a satisfactory explanation of the delay of about two and half
years. The allegation that he is a layman and did not know about the
required notice should be rejected. This is because soon after his
arrest he had access to legal advice and services as he was legally
represented throughout his appearances in court.
[16] Applicant has further failed to demonstrate that he has
prospects of success in the main action. More specifically, he has
failed to set out in his affidavits on what basis he alleges his arrest was
unlawful. He has failed to even deal with this requirement in his
founding affidavit. The only reason why he had failed to do so, is
because he has no such prospects.
[17] He pointed out that the First Respondent has been prejudiced
by the long delay. It has been difficult to locate the file and also,
investigate the matter as evidence and witnesses become unavailable
with the passage of time.
[18] Lastly, he argued that the Applicant's application is totally
flawed and does not comply with the provisions of Act pertaining to an
application for condonation in that:
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(i} In his notice of motion Applicant does not seek or apply for
condonation. Instead, relief sought therein is specifically:
"1. That the Applicant be granted leave for the late service of the
notice to institute legal action against the First and Second
Respondents."
(ii) Secondly, the notice was sent to "CITY OF TSHWANE
METROPOLITAN MUNICIPALITY". In this regard, the Act
provides specifically that the notice must be delivered to the
"City Manager". For this reason, the Applicant has failed to
comply with the provisions of the Act, in this way rendering the
notice defective.
TI:lE LEG.Al. POSJII.OliANO ANALYSIS
(19] Section 3(4) of the Institution of Legal Proceedings against
Certain Organs of State Act, 2002 (Act No . 40 of 2002) {"the Act)
provides as far as is necessary that:
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"(4) {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 the failure by the creditor; and
(iii) The Organ of State was not unreasonable prejudice by the failure."
[20] The jurisdictional requirements are conjunctive and must be
proved and established by the Applicant. In other words, the Applicant
bears the onus of proving each of the three requirements. The standard
of prove required is the general "overall impression made on the facts
set out by the parties in their papers."
[21] This legal position was summarised in Minister of Aaricyltyre
and Land Affairs v c J Rance; 2010 (4) SA 109 (SCA) where the
following was said:
"[33) In terms of s 3(4){b) a court may grant condonation if it 'is satisfied'
that the three requirements set out therein have been met. In practical
terms this means the 'overall impression' made on a court by the facts set
out by the parties."
(At paragraph 33)
(22] The position is that even if all these three requirements are met
and satisfied, this is not the end of the enquiry. In such a case, the court
is left with a discretion to either grant or refuse the application for
con donation. Such a discretion is to be exercised judicially taking into
account the interests of justice in a general sense.
"
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(23] In Madinda v Minister of Safety and Security 2008 (4) SA 312
(SCA) the following was said:
"16. The structure of s 3(4) is now such that the court must be satisfied that
all three requirements have been met. Once it is so satisfied the discretion
to condone operates according to the established principles in such
matters."
(At paragraph 16)
The Legat Position of the Second Respondent
[24] Second Respondent has not filed any opposing papers. This
does not however, relieve the Applicant of discharging the onus that
rests on him of proving or making a proper case against each of the
Respondents, including specifically Second Respondent.
(25] This is particularly important because Second Respondent has
filed a plea and therein raised two special pleas to which I have already
referred. In essence, both special pleas form part of the issues for
determination in this application, and are therefore also relevant and
applicable in relation to Second Respondent.
PRESCRIPTION
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[26} Initially, First Respondent did in its answering affidavit raise the
issue of prescription. However, at the hearing of the matter, this point
in limine was abandoned and it became common cause between the
parties that the applicant's claim as against it has not prescribed. This
means therefore that as against the First Respondent, the Applicant
has crossed the first hurdle.
[27] However , as against the Second Respondent, the legal position
is completely different. It is common cause that the Applicant's action
arose on 20 April 2020 being the date on which he was arrested and
then detained. Summons were issued on 6 April 2023 and served on
the Second Respondent on 5 May 2023 . This is a period well in excess
of three (3) years calculated from the date on which the cause of action
arose.
[28} Where a claim has prescribed, the application has to fail. In
such a case, the court does not have a discretion it can exercise. In
other words, the court is not empowered to resuscitate a prescribed
claim. It follows that as against the Second Respondent, this is the end
of the enquiry and the application must therefore fail.
GOOD CAUSE
[29) Over the years, courts have refrained from formulating a closed
list of factors constituting an exact definition of good cause. Each case
will therefore depend on its own facts and merits. Be that as it may, for
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the purpose of adjudication of this matter and based on authorities,
good cause will include the following factors;
(i) The degree, extent, and length of the delay.
(ii) The explanation for the delay.
(iii) The sufficiency and/or reasonableness of such an
explanation.
(iv) Applicant's prospects of success on the merits of the
delictual claim.
(v} The balancing act-Prejudice or otherwise on the part of
the First Respondent if condonation is granted weighed
against prejudice that the Applicant will suffer if
condonation is not granted.
[30) In Silber v Ozen Whole salers (Pty) Ltd 1954 (2) SA 345 (A) the
court held:
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"The meaning of "good cause" ... should not lightly be made the subject of
further definition... It is enough for present purpose to say that the
defendant must at (east furnish an explanation of his default sufficiently full
to enable the court to understand how it really came about, and to assess
his conduct and motives."
(At 352 H -353 A)
[31] In Rance {Supra) the court held:
"(36) Good cause within he meaning of contained in S 3 (4) (8) (ii}
has not been defined, but may include a number of factors which
will vary from case to case on d;fferencing facts."
[At paragraph 36]
THE DEGREE AND LEN GTH O F THE DELAY
[32] It is common cause that on the facts, Applicant's debt became
due on 20 April 2020, being the day on which he was arrested. O n
calculation, the six (6) month period provided for in Section 3 of the Act
expired on 20 October 2020 . The notice was only sent by registered
post to "Tshwane Metropolitan Municipality" on 28 March 2023. It follows
therefore that the extent of the delay is a period of approximately two
and half years.
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[33] In Yan Wyk y Unjtas Hospital 2008 (2) SA 472 (CC) the court
held:
''.An applicant for condonation must give a full explanation for the delay. In
addition, the explanation must cover the entire period of delay. And, what
is more, the explanation given must be reasonable ... "
(At paragraph 22)
[34] Similarly in Rance (Supra) the court held:
''.An applicant for condonation is required to set out fully the explanation for
the delay; the explanation must cover the entire period of the delay and
must be reasonable."
(At paragraph 35)
THE EXPLANATION FOR THE DELAY, SUFFICIENCY AND
REASONABLENESS THEREOF
[35] In his founding affidavit, Applicant states that he.was not aware
of the provisions of section 3 of the Act, that is, that he has to deliver a
written notice to the Respondents within a period of six (6) months
calculated from the day on which the debt became due. He explains
the delay as follows:
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"6. I submit that I was not aware of the six (6) month period, in which I was
to notify the Respondent in writing of my intention to institute legal
proceedings."
[36] It is common cause that soon after his arrest Applicant obtained
and had services of a legal representative of his own choice. He
therefore throughout had access to legal services, advice and answers
to all legal questions regarding his arrest. This includes but not limited
to legal advice and answers to all legal questions he may have
pertaining to his arrest, as well as legal consequences and recourse
flowing from his arrest and or detention, which according to him was
unlawful. Simple logic dictates that all of these will also include the
procedural issues pertaining to enforcement of the claim he may have,
and also applicable time periods.
[37] In Salooiee and Another. NNO v Minister of Community
Development 1965 (2) SA 135 (A) it was held:
"There is a limit beyond which a litigant cannot escape the results of his
attorney's tack of diligence or the insufficiency of the explanation
tendered If he relies upon the ineptitude or remissness of his own
attorney, he should at least explain that none ofit is to be imputed to
himself"
[38] I am aware that the Applicant does not necessarily put blame on
any of his attorneys whether previous or current. As I have pointed out,
he had access to legal services throughout, specifically relating to his
arrest. He has always stated that, according to him, his arrest was
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unlawful. It was therefore throughout upon him to fully enquire from his
attorney what his legal recourse is, the rights he may have, how any of
such right is to be enforced, the procedure, time limits, and so on. The
is no evidence presented to suggest that Applicant was prevented and
or could not obtain such advice.
[39] As I have pointed out, Applicant throughout entertained the
belief that his arrest was unlawful. He knew the identity of the arresting
officers, namely that they are police officers attached to the First
Respondent. He also had knowledge, information including all the
facts and circumstances under which his arrest and subsequent
detention took place. Despite all of these, Applicant has failed to
explain why he had to wait for a period of two and a half years to lodge
his claim.
[40] Taking into account all of the above, I have no difficulty in finding
that Applicant has failed to give a reasonable explanation for his undue
delay which extents over a period of two and half years.
PROSPECTS OF SUCCESS
[41] No doubt prospects of success is a very important factor and
.....
plays a significant role in the determination of good cause. The
importance of this factor is brought about by the fact that strong
prospects of success will in a general sense, compensate for an
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unexplained period of delay. Equally so, lack of prospects of success
renders whatever explanation for delay, pointless.
[42] In Rance (Supra} the SCA in relation to this requirement stated:
"The prospects of success of the intended claim play a significant role-,
since strong merits may mitigate fault; lack of merits render mitigation
pointless. The court must be placed in a position to make an assessment
on the merits in order to balance that factor the cause of the delay as
explained by the applicant."
[43] It is important to mention that in his founding affidavit, the
Applicant does not mention or state facts that demonstrate that he has
prospects of success on the merits. This is despite the fact that he
bears the onus to do so. All that he states is in his replying affidavit and
is to the following effect:
·~ .. There is prospects that f will be successful on merits as per advice from
my attorneys of record ... "
[44) On the other hand, the First Respondent has gone at length to
demonstrate that Applicant has no prospects of success. Its version is
contained in an answering affidavit deposed to by Mr Lesiba Daniel
Molekoa attached to which is police case docket No: Atteridgeville CAS
128/04/2020. This docket contains statements deposed to by arresting
officers. In a nutshell, First Respondent's version justifying the arrest is
set out in the arresting officers statements, and the answering affidavit
as follows:
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•~ .. the applicant was found in possession of ammunition and explosives
and furthermore he attempted to resist arrest."
[45] As I have pointed out, the Applicant who bears the onus of proof,
has not made any attempt to show or demonstrate in what respect he
alleges his arrest was unlawful. He has failed to give a version that
contradicts that of the First Respondent, regarding the lawfulness or
otherwise his arrest. Surely, his prospect of success is closely linked to
the justification of the officers in arresting him meaning in short, the
lawfulness or otherwise of his arrest.
[46] I understand the version of the First Respondent to be that
Applicant was found in possession of prohibited items, meaning, he
was caught in the act of committing a crime in the presence of police
officers attached to the First Respondent. Arrest under such
circumstances will in terms of section 40 (1) {a) of the Criminal
Procedure Act 51 of 1977 {"the CPA") legally justified.
[47] Taking into account all of the above, I am satisfied that again,
the Applicant has dismally failed to show or demonstrate that he has
any prospects of success on the merits of his claim.
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PREJ.ll.DICE TQJJ:tE ORGAN OF STATE
[48) The Applicant bears the onus of proving absence of prejudice on
the part of the Organ of State. In Rance (Supra) Majiedt AJA (as he then
was) put the legal position as follows:
"38. Absence of unreasonable prejudice falls to be decided separately as
a specific requirement to be met bv an applicant. Whereas good cause
primarily concerns the applicant's conduct and its motives, the absence of
unreasonable prejudice shifts the focus onto the State organ and the
protection of its interests by receiving timeous notice. The DLA serves as a
good example in the present case as to why this requirement must be met.
It has a large staff component dealing with many matters relating to the vast
tracts of land it administers on behalf of the State. It plainly requires
adequate time to sift analyse, prioritise and decide on matters before
enteringinro litigation."
(At paragraph 38)
{49] In its answering affidavit, First Respondent has in some detail
set out and explained the considerable prejudice it has suffered as a
result of the delay by the Applicant. On the other hand, the Applicant,
who bears the onus of proving absence of prejudice, concedes that
there has been undue delay. He however, try to downplay the onus he
bears by simply stating:
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''. .. Though the delay was or is still lengthy, the Respondent will not be
prejudiced in any way, as this application itself does not conclude on the
merits and quantum in my claim."
[50] It is abundantly clear from the superficial statement that the
applicant has once again failed to prove absence of prejudice on the
part of the First Respondent. Applicant bears the onus of doing so and
has therefore failed to discharge this onus.
[51] The Applicant's failure should be seen and considered against
the very purpose for which the Act was enacted, and more specifically,
the intention of the legislature and the purpose of section 3 of the Act.
All organs of state operate on public funds. The purpose of the notice
is to afford ample opportunity to an organ of state to investigate each
claim against it. Having done so, to then be in a position to consider all
costs implications, options available to it in a responsible and
informed manner, before involving itself in lengthy and expensive
litigation.
[52] In Mohlomi v Minister of Defence 1977 (1) SA 124 (CC) the
Constitutional Court reaffirmed the purpose of the Act as follows:
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" The Constitutional purpose for demanding prior notification of any
intention to sue such an organ of government is that, with its extensive
activities and long staff which tends to shift, it needs the opportunity to
investigate claims laid against it, to consider the responsible and to decide,
before getting embroiled in litigation at public expenses whether it enough
to accept, reject or endeavour to settle them."
CONCLUSION
[53] Applicant has failed to show and satisfy the jurisdictional
requirements for con donation provided for in section 3 and 4 of the Act,
and in particular good cause as well as absence of prejudice on the
part of the Respondents. It follows that the application has to fail.
OJ!D.EB
Consequently, I make the following order.
[1] The application for condonation is dismissed with costs.
[2] Such costs shall include costs consequent upon employment of
Senior Counsel.
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SSMAAKANE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION,
PRETORIA
DATE HEARD
DATE OF JUDGMENT
Ae.e.EARAN_C_E
For the
Applicant
Instructed by
For the
Respondent
Instructed by
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14 May 2025
15 August 2025
AdvV. Sihawu
Thubakgale Attorneys INC
Pretoria
Adv D. Mills SC
Prinsloo Incorporated
Pretoria