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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
(Coram: Holderness, J)
Case No.: 124422/2020
In the matter between:
KONWABA NGWANE Plaintiff
And
THE MINISTER OF POLICE First Defendant
THE NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS Second Defendant
JUDGMENT SPECIAL PLEA - DELIVERED THIS 8TH DAY OF OCTOBER 2025
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HOLDERNESS, J
INTRODUCTION
[1] This judgement is solely in respect of the special plea of prescription raised by
the first defendant in respect of the plaintiff ’s claim for damages , arising from his
allegedly unlawful arrest on 11 April 2017, and his subsequent detention.
[2] The ‘debt’ claimed by the plaintiff is for damages in the amount of R3 million
allegedly suffered because of his arrest on 11 April 2017, which he alleges was
unlawful, and because of his subsequent detention for each day until his release
from custody on bail on 17 July 2018.
[3] In the special plea filed on its behalf, the first defendant contends that in terms
of sections 11(d) and 12(1) of the Prescription Act, 68 of 1969 (the Act), claims of this
nature are subject to a three year prescription period within which the plaintiff is
required to effect service of the summons, calculated from the date on which the
debt became due. According to the first defendant the debt fell due on 11 April 2017.
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[4] On 2 October 2020 , after the expiry of the three -year prescription period
commencing on the date of the plaintiff’s arrest, summons was served on the first
defendant.
Evidence for the first defendant
[5] The first defendant led the evidence of Warrant Officer Ayonda Ndaba (W/O
Ndaba), the investigating officer on the charge brought against the plaintiff.
[6] Warrant Officer N daba has been a member of the South African Police
Services for 22 years and was, at the time of the arrest, stationed at Delft Family
Violence, Child Protection and Sexual Offences Unit (FCS) , and held the rank of
Sergeant.
[7] W/O Ndaba arrested the plaintiff on the 11 April 2017, at his church in Mfuleni.
At the time of the arrest, he was accompanied by the complainant, a 10-year-old girl,
and her mother. According to his testimony, W/O Ndaba introduced himself to the
plaintiff as Sergeant Ndaba from the FCS and informed him that he is investigating a
case of alleged rape. In the presence of th e complainant and her mother, W/O
Ndaba, pointed at the plaintiff and asked the complainant if he is the man she
alleged had raped her. She confirmed that it was . W/O Ndaba informed the plaintiff
that he was arresting him on the charge of rape of a minor. W/O Ndaba thereafter
transported the plaintiff to Mfuleni police station, where he was detained.
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[8] It is common cause that the arrest was effected without a warrant.
[9] W/O Ndaba read the plaintiff his rights. The plaintiff thereafter signed a Notice
of Rights in terms of the Constitution (Section 35 of Act No. 108 of 1996) (the
Notice), which document formed part of the joint trial bundle and was handed up and
marked as exhibit “A”.
[10] The reasons for the plaintiff’s arrest and detention appear clearly from this
Notice, where it is recorded that he was charged with rape. The document was
completed on 11 April 2017 at 17h30. In paragraphs 3 and 4, the rights of the plaintiff
as detainee are clearly set out. W /O Ndaba confirmed that , after the notice was
completed and signed , he handed a copy thereof to the plaintiff . The plaintiff was
thereafter detained in custody at the Mfuleni Police Station.
[11] On 12 April 2017 , the plaintiff was interviewed by W/O Ndaba to correctly
record his name and address , to formally inform him and to ensure that he
understood the charge against him , and to ascertain whether he wishes to give a
statement regarding the charges against him. He was informed that it is his right to
not give a statement.
[12] It appears from the warning statement, which was handed in as exhibit B, that
the plaintiff was interviewed at 10 h00 on 12 April 2017, where he was informed that
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he was involved in an investigation of a rape committed against the victim on 10 April
2017 at 16h00 hours at his home at 6[...] B[...] Squatter Camp. It is further recorded
that the plaintiff is a male age d 33 years old , and that he was unemployed at the
time. The plaintiff signed the warning statement in two places.
[13] It further appears from the statement and was confirmed in evidence by W/O
Ndaba that the plaintiff gave a voluntary statement to the effect that he had sent the
victim and other children to buy cooldrinks, and that he did not rape her. A further
document, introduced into evidence as Exhibit “C”, was the DNA reference sample
collection kit in respect of the saliva/bu ccal sample collected from the plaintiff on 12
April 2017.
[14] The plaintiff’s first appearance in the Blue Downs Magistrates court was on 13
April 2017.
[15] At the first appearance t he charge sheet was introduced into evidence as
exhibit ‘D’. It appears therefrom that the plaintiff was charged with the rape of the
minor complainant, N[...] P[...] , who was 10 years old at the time. W/O Ndaba
confirmed that the plaintiff was informed by the prosecutor of the charges at the first
appearance.
[16] It is common cause that the plaintiff appeared in court again on 5 May 2017,
for a bail hearing. Bail was refused by the magistrate.
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[17] In cross-examination, when questioned about what further steps, he took to
investigate the charges against the plaintiff, W/O Ndaba stated that his role was to
collect evidence and to present the evidence to the court , for the court to determine
whether the plaintiff was guilty of the charge laid against him. He confirmed that on
17 July 2018, approximately 13 months after his arrest, the plaintiff was granted bail
on appeal to the High Court.
[18] W/O Ndaba confirmed that on 17 April 2019, the plaintiff was acquitted on the
charge of the rape and discharged on the same day. The first defendant did not call
any further witnesses.
Evidence for the plaintiff
[19] The plaintiff thereafter gave evidence and confirmed that at the time of his
arrest W/O Ndaba explained to him that he was being arrested for the rape of a
minor child, who , together with her mother , had accompanied W/O Ndaba to the
church where the plaintiff was arrested.
[20] According to the plaintiff he told W/O Ndaba that ‘he knew nothing about
raping the child’, and that he did not know why he was being arrested. He said that
he felt very hurt when he was arrested , as he did not commit the offen ce with which
he had been charged.
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[21] The plaintiff’s evidence was that he sold his house in the B[...] informal
settlement to obtain the services of an attorney to ‘find out what had happened’.
[22] The plaintiff confirmed that he was eventually released on bail on 12 July
2018, on appeal to the High Court, and stated that he was in custody for 15 months
before his release. He confirmed further that he was found guilty and discharged on
17 April 2019.
[23] When asked ‘when he acquired knowledge that a wrong had been done to
him, and that he had a claim against the defendant ’, the plaintiff said that he became
aware thereof when the case ended and the court found him not guilty.
[24] The plaintiff testified further that he went to see his cousin and explained to
him that he had lost his house and did not have a place to stay . His cousin informed
him that he knows of an attorney who can help him. He did not state when he met
with his cousin, or how soon these events transpired after his discharge. His cousin
was not called to testify. He consulted with this attorney, who is the same attorney as
his current attorney of record, who advised him to lodge a cla m. He stated that ,
before consult consulting with his attorney , he did not know that he had a right of
recourse against the defendant because of his arrest and detention.
[25] In cross-examination, the plaintiff stated that W/O Ndaba had not explained
anything to him , and that he complied with the taking of his fingerprints and signing
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documents as was required of him. I t was pointed out to him by Mr. Manuel, who
appeared on behalf of the first defendant, that it was never put to W/O Ndaba in
cross examination that the charges were never explained to him , nor was it put to
him that the statement noted in the warning statement was not correct, as testified by
the plaintiff in his evidence.
[26] The plaintiff confirmed that , at the first court appearance , he was informed of
the charge against him and of the identity of the minor complainant. He further
confirmed that save for one occasion , when the trial was postponed due to his
attorney being absent, he was legally represented at all court appearances including
at the bail hearing until the time of his discharge.
[27] In re -examination he confirmed that he did discuss the wrongfulness of his
arrest with the attorney that represents him in the criminal proceedings. After
questioning by the court , the plaintiff indicated that he only discussed the
wrongfulness of the arrest with his former attorney when the case was finalised.
When does prescription begin to run for the unlawful arrest and detention?
[28] In terms of section 11(d), as read with section 10(1) of the Act, the period of
prescription for delictual debts is three years, ‘save where an Act of Parliament
provides otherwise’. It starts to run, according to section 12(1), ‘as soon as the debt
is due’. In terms of s ection 12(3) of the Act, however, the debt is deemed not to be
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due, ‘until the creditor has knowledge of the identity of the debtor and of the facts
from which the debt arises ’ or until he or she could have learnt of those
circumstances ‘by exercising reasonable care’.
[29] In terms of s11(d) of the Act, prescription for an unlawful arrest claim ordinarily
begins to run the moment the arrest occurs (when the claimant is deprived of liberty).
The ‘debt’ is due once the cause of action is complete (i.e. all material facts are
present).
[30] Each day of an unlawful detention is treated as giving rise to a separate debt
or cause of action, that is prescription in respect of each day runs from that day. If an
individual is detained over a period, some days might have prescribed, others not.1
[31] This accords with the approach adopted in Lombo v African National
Congress2 and with the concept of a continuous wrong as set out in Barnard and
others v Minister of Land Affairs and others3, namely:
‘In accordance with the concept, a distinction is drawn between a single, completed
wrongful act - with or without continuous injurious effects, such as a blow against the
head – on the one hand and a continuous wrong in the course of being committed, on
the other. While the former gives rise to a single debt, the approach with regard to a
continuous wrong is essentially that it results in a series of debts arising from moment
to moment as long as the wrongful conduct endures. (See e.g. Slomowitz v
Vereeniging Town Council 1996 (3) SA 317 (A); Mbuyisa v Minister of Police,
Transkei 1995 (2) SA 362 (TK); Unilever Best Foods Robertsons (Pty) Ltd and others v
1 Lombo v African National Congress 2002 (5) SA 668 (SCA) at para 26 and Minister of Police v
Yekiso 2019 (2) SA 281 (WCC) at para 19.
2 Lombo v African National Congress supra at para 26.
3 Barnard and others v Minister of Land Affairs and others 2007 (6) SA 31 (SCA) at para 20.
10
Soomar and another 2007 (2) SA 347 (SCA) at para [15].’
[32] In the replication to the first defendant’s special plea of prescription, the
plaintiff pleaded that , in terms of s 12(3) of the Act, prescription only began to run
when he was discharged or acquitted on the charge of rape on 17 April 2019, whe n
he ‘gained knowledge of the identity of the debtors and the facts from which the debt
arose.’
[33] The plaintiff’s case appears to be on all fours with that of Manchu v Minister of
Police and Others (Manchu)4, where t he plaintiff , relying upon the provisions
of section 12(3) of the Act, alleged that during the period of his arrest and detention
he was not aware or in a position to establish whether he had a cause of action,
further, that had no knowledge that he had a right of claim against the defendants.
His awareness or knowledge of the claim only came after he consulted with his
attorney in 2019 and only became aware thereof, following ‘…consultation with his
attorney of record on the 2019’.5
[34] The court in Manchu6 observed that p rescription, subject to statutory
limitations, commences running as soon as the debt is due or immediately
claimable.7 This occurs when all the necessary facts that a creditor must prove to
succeed in their claim against a debtor are established, or in simpler terms, when
4 Manchu v Minister of Police and Others (1005/2021) [2024] ZAGPJHC 535 (3 May 2024).
5 Manchu at para 33.
6 Manchu at para 34.
7 Section 12(1) Prescription Act No 68 of 1969.
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everything has occurred that would allow the creditor to take legal action and pursue
their claim.8
[35] The court emphasised, citing Truter and Another v Deysel supra 9, that ‘in a
delictual claim, as in this instance, the requirements of ‘fault’ and ‘unlawfulness’ are
not factual components of a cause of action; rather, they are legal conclusions that
should be deduced from the facts that have been determined.’
[36] In delictual actions for unlawful arrest and detention, the minimum necessary
facts needed to succeed in such claims include that the defendant or their agent
deprived the plaintiff of their liberty, which is prima facie wrongful.10
[37] This issue was dealt with squarely by the apex court in Mtokonya v Minister of
Police11 (Mtokonya) where Justice Jafta stated that ‘the purpose served by s 12(3) is
to prevent the commencement of prescription being delayed by the negligent
inaction of the creditor who faces no impediments to instituting legal proceedings.
The legitimate purpose served by provisions of a limitation such as s 12(3) is
founded on public policy and is underpinned by two principles. The first is the interest
of the state which requires that there should be a limit to litigation. The second is that
the law helps the vigilant and not those who slumber.’
8 Truter and Another v Deysel (Truter) [2006] ZASCA 16; 2006 (4) SA 168 (SCA) at paras [15] to [19].
9 Truter at para 16.
10 Zealand v Minister of Justice and Constitutional Development [2008] ZACC 3; 2008 (4) SA
458 (CC) at para 25; Minister of Finance and Others v Gore NO (230/06) [2006] ZASCA 98; [2007] 1
All SA 309 (SCA); 2007 (1) SA 111 (SCA) at para 17.
11 2018 (5) SA 22 (CC) (2017 (11) BCLR 1443; [2017] ZACC 33) at para 145.
12
[38] In Mtokonya the court further o bserved12 that ‘Section 12(3) does not require
the creditor to have knowledge of any right to sue the debtor nor does it require him
or her to have knowledge of legal conclusions that may be drawn from “the facts
from which the debt arises”. Case law is to the effect that the facts from which the
debt arises are the facts which a creditor would need to prove in order to establish
the liability of the debtor.’
[39] Regarding the period of detention, it has been held that the whole period
thereof should not be seen as one continuing wrong. In Barnett v Minister of Home
Affairs13 the Supreme Court of Appeal held that the approach should be that such a
wrong “… results in a series of debts, arising from moment to moment, as long as
the wrongful conduct endures”.
[40] Prescription for each day of unlawful detention therefore commences running
separately as each day of detention passes. These days would have started passing
since 11 April 2017, the date of the plaintiff’s arrest and the first date of his detention
following his arrest 2017.14
12 At para 36.
1313 Barnett v Minister of Home Affairs 2007 (6) SA 31 (SCA) at par 20.
14 See Minister of Police v Zamani 2023 (5) SA 263 (ECB) at 13 and Minister of Police v Yekiso 2019
(2) SA 281 (WCC) at par 19. See also Lombo v African National Congress 2002 (5) SA 668 (SCA).
13
[41] For a claim based on unlawful arrest and detention, the delict is committed by
the unlawful arrest itself, and the outcome of the prosecution is irrelevant. 15
Therefore a plaintiff, claiming to have been unlawfully arrested, need not wait for his
trial to finish before instituting action.
Does service of notice in terms of section 3 of the Institution of Legal
Proceedings Against Certain Organs of State, Act 40 of 2002 interrupt
prescription?
[42] My Bembe, who appeared for the plaintiff , contended for the first time during
argument, that the Notice to Institute Civil Proceedings in terms of section 3 of the
Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 (the
s 3 Notice), sent to the National Commissioner of the South African Police Services
on 16 September 2019 , interrupted prescription, as contemplated in section 15(1) of
the Act. This was not pleaded in replication to the first defendant’s special plea of
prescription
[43] The heading for section 15 of the Act is ‘Judicial interruption of prescription’.
Section 15(1) provides that the running of prescription shall, subject to the provisions
of subsection (2), be interrupted by the service on the debtor of any process whereby
the creditor claims payment of the debt.
15 Zealand v Minister of Justice [2008] ZACC 3; 2008 (4) SA 458 (CC) at par 24; Minister of Justice &
Constitutional Development v Moloko [2008] 3 All SA 47 (SCA).
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[44] ‘Process’ is not defined in the Act, however guidance can be obtained from s
15(6) which stipulates that ‘f or the purposes of this section, 'process' includes a
petition, a notice of motion, a rule nisi, a pleading in reconvention, a third party notice
referred to in any rule of court, and any document whereby legal proceedings are
commenced.’
[50] The question which then arises is whether such statutory notice or letter of
demand constitutes a ‘process’ within the meaning as contemplated in section 15.
[45] Mr Bembe could not refer at the hearing to any authorities in support of the
proposition that a s 3 Notice interrupts prescription . As the Court intended to deliver
judgment on the special plea the next day, he was requested to send to my registrar
any authorities on which he sought to place reliance by no later than the following
morning.
[46] On 7 October 2025 Mr Bembe emailed to my registrar the judgment in Liu v
Minister of Finance and Others16 in which the court granted the following order17:
‘It is declared that the prescription of the Plaintiff’s claims against the Second
Defendant, as set out in the amended particulars of claim, was interrupted as
contemplated in section 15(1) of the Prescription Act 68 of 1969 , by means of the
service on 19 February 2014 of the notice in terms of section 3 of the Institution of
Legal Proceedings Against Certain Organs of State Act 40 of 2002 on the Second
16 (72053/2015) [2024] ZAGPPHC 174 (29 February 2024).
17 At para 22.
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Defendant, and / or the service on 9 September 2015 of the combined summons on
the First Defendant, and that the Plaintiff’s claims against the Second Defendant
based upon malicious prosecution and/or malicious criminal proceedings
against him, have therefore not prescribed.’
[47] Mr Bembe omitted to copy Mr. Manuel in the email and the handing down of
this judgment was therefore delayed, to afford Mr. Manuel an opportunity to consider
the judgment and to deliver a note or any other authorities in this regard.
[48] Mr. Manuel later that day sent a copy of the judgment of Seleka and Others v
Minister of Police and Others 18, where Makgoba J held the view that a section 3
notice in terms of Act 40 of 2002 are such documents which do not commence legal
proceedings.
[49] Having considered the reasoning in both judgments, neither of which are
binding on this court, I find myself in agreement with Makgoba J. In my view t he
notice is a procedural prerequisite to sue an organ of state — it is not part of the
institution of legal proceedings itself and does not constitute a ‘judicial’ interruption of
prescription’ as contemplated in section 15(1), nor is it ‘process’ within the meaning
envisaged in s 15 (6). It simply alerts the organ of state to a potential claim so that it
can investigate or settle before litigation.
18 Seleka and Others v Minister of Police and Others (288/2013) [2014] ZAGPJHC 417; 2015 (4) SA
376 (LP) (8 December 2014)
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[51] In the Liu judgment declaratory relief was granted which, in my respectful
view, was not supported by adequate reasons or binding authority.
[52] It appears that t he statutory s 3 Notice pertains to pre-litigation, rather than
litigation. The objectives underpinning such notice are t o notify the organ of state of
the proposed claim , to facilitate inquiry and potential resolution and to assist the
relevant organ of state in preparing for any lawsuit . Such notice does not initiate
legal action. Legal proceedings are initiated solely upon the service of a summons,
application, or other initiating process.
[53] If s 3 noti ces interrupt prescription; it would engender ambiguity . Questions
which arise may include: W hat is the duration of the interruption? Does the
prescription period restart after the expiration of the notice period? Such uncertainty
would, in my view, undermine the Act's objective of providing legal certainty and
ensuring that litigation is not unduly delayed.
[54] Section 15(6) explicitly defines 'process' solely as a document that initiates
legal proceedings for the purpose of interrupting prescription. On a p urposive
interpretation of this subsection, it is apparent that the s 3 Notice fails to meet this
condition. It merely alerts the organ of state to possible future action or application
proceedings.
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[55] In the circumstances I find that the section 3 notice sent to the first defendant
did not interrupt the running of prescription against the plaintiff.
Evaluation
[56] Mr. Manuel, who appeared on behalf of the first defendant, contended,
correctly in my view, that the commencement of prescription is not reliant upon the
plaintiff having knowledge of the legal consequences of the facts.
[57] In Mtokonya the Constitutional Court affirmed the earlier SCA decisions in
which it was held that section 12(3) requires only knowledge of material facts, and
that prescription is not delayed until the creditors became aware of the full extent of
their rights. Put differently, knowledge of the minimum or essential facts suffices to
meet the threshold envisaged in s 12(3). Knowledge of legal conclusions is not
required before prescription begins to run.19
[58] In Phala v Minister of Safety and Security and Another 20 (Phala) the Court
observed that in the Free State Division, as well as other Divisions of the High Court,
19 Mtokonya at para 50, where the court referred to the SCA decision of Yellow Star Properties 1020
(Pty) Ltd MEC
20 Phala v Minister of Safety and Security and Another (6779/2007) [2022] ZAFSHC 263; [2023] 1 All
SA 227 (FB) (12 October 2022) at para 57.
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it has consistently been held that prescription for unlawful arrest will in principle
commence when the act of arrest is completed.
[59] The court in Phala21 found that according to the well -established principles
relating to prescription of claims for unlawful arrest and detention, prescription does
not only start to run when the criminal prosecution is finalised, as is the case in a
claim for malicious prosecution.
[60] In Mtokonya the Constitutional Court went so far as to say22:
‘Furthermore, to say that the meaning of the phrase “ the knowledge of . . . the facts
from which the debt arises ” includes knowledge that the conduct of the debtor giving
rise to the debt is wrongful and actionable in law would render our law of prescription
so ineffective that it may as well be abolished. I say this because prescription would,
for all intents and purposes, not run against people who have no legal training at all.
That includes not only people who are not formally educated but also those who are
professionals in non-legal professions. However, it would also not run against trained
lawyers if the field concerned happens to be a branch of law with which they are not
familiar. The percentage of people in the South African population against whom
prescription would not run when they have claims to pursue in the courts would be
unacceptably high.’
[61] In the present matter the plaintiff, at the date of his arrest, had full knowledge
of how and in what circumstances the arrest was affected, the alleged crime which
he was being arrested and the identity of the complainant. He knew he was being
21 At para 43.4.
22 At para 63.
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arrested by the South African Police Services and the reasons for his arrest and
subsequent detention.
[62] As contended on behalf of the first defendant, the plaintiff was legally
represented by 3 May 2017, at his second court appearance. By that stage, and
certainly at the latest by 15 June 2017 , when the opposed bail application was
heard, the facts giving rise to his arrest and detention would certainly have been
known to the plaintiff.
[63] It is accordingly clear that on 11 April 2017, alternatively by 15 June 2017, the
plaintiff had full knowledge of the essential facts underlying his cause of action in
respect of the unlawful arrest and detention. The debt claimed by him for damages in
this regard accordingly prescribed on 10 April 2020 alternatively on 14 June 2020.
[64] In the circumstances the plaintiff’s claim A against the first defendant for
unlawful arrest has prescribed.
[65] Applying the same method of calculation in respect of the alleged unlawful
detention, the plaintiff’s claim for detention for each of the days during the period
from 11 April 2017 to 1 October 2017 has similarly prescribed.
[66] There is no reason why costs should not follow the result.
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Order
1. The first defendant’s special plea of prescription against the plaintiff ’s claim
based on unlawful arrest, Claim A, is upheld.
2. Save for the period from 1 October 2017 to 17 July 2018 , the first
defendant’s special plea of prescription against the plaintiff’s claim based
on unlawful detention is upheld.
3. The plaintiff is ordered to pay the first defendant’s costs in respect of its
special plea.
______________________
M HOLDERNESS
JUDGE OF THE HIGH COURT
Appearance
For the Plaintiff: Mr. Bembe
As instructed by: M Sodaka Attorneys Inc
For the Defendant: Mr. L Manuel
As instructed by: The State Attorney