REPUBLIC OF SOUTH AFRICA



IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG


Appeal Case No: 146486/A2024
JHC Case No: 23541/2018



In the matter between:

NTOMBELA BONGANI Appellant

and

MINISTER OF POLICE Respondent

CORAM: WILSON J, MFENYANA J and WENTZEL AJ

Summary

The appellant was wrongfully arrested and detained for 14 months. Shortly after
his release, he gave notice, under section 3 of the Institution of Legal Proceedings
Against Certain Organs of State Act 40 of 2002, of his intention to claim for wrongful
arrest and detention. At trial, the respondent conceded the merits of the claim for
wrongful arrest and detention, but took the point that the notice ought to have been
given within six months of the appellant’s arrest. The appellant applied for
condonation for his failure to give notice within six months of his arrest, but
withdrew that application at the commencement of trial. The High Court dismissed
the claim on the basis that the notice had been given late, and that the lateness
could not be condoned because the condonation application was withdrawn. The
appellant appealed.

On appeal, the minority (in a judgment written by Wentzel AJ, which appears at
paragraphs 1 to 168) provides a detailed analysis of the case law on when a debt
for wrongful arrest and detention falls due. The minority concludes that, as a matter
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED: YES
24 October 2025
DATE SIGNATURE

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of law, the debt the appellant claims fell due on his arrest , and that notice of the
claim ought to have been given within six months of that date.

The majority (in a judgment written by Wilson J, with whom Mfenyana J agrees,
which appears at paragraphs 169 to 186) assumes without deciding that the debt
the appellant claims fell due on his arrest, but nevertheless finds that the High Court
failed to appreciate that it had a discretion to refuse to accept the withdrawal of the
condonation application, and that the appeal should be upheld on that basis.

The minority agrees with the majority that the High Court ought to have refused
leave to withdraw the condonation application. Accordingly, the court unanimously
upholds the appeal, substitutes the High Court’s decision with an order refusing
leave to withdraw the condonation application, grants that application, and awards
damages for wrongful arrest and detention.



JUDGMENT

WENTZEL AJ:
Introduction
[1] During June 2018 the appellant (Plaintiff in the main action) instituted legal
proceedings against the respondent (Defendant in the main action) for
damages in the amount of R500 000 (which were subsequently increased
to R1.5 million) arising out of his alleged unlawful and wrongful arrest and
detention. It is noteworthy that no claim was brought for malicious arrest
and detention or for malicious prosecution and the National Prosecuting
Authority (“NPA”) was not joined to the proceedings.
[2] The respondent raised a special plea based on the appellant’s alleged non-
compliance with section 3(1) of the Institutions of Legal Proceedings

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Against Certain Organs of State Act 40 of 2002 (“ the Institution of Legal
Proceedings Act”)
[3] The matter was heard by Judge Francis who delivered judgment on 22
March 2024, inter alia, upholding the special plea with costs. On 3 April
2024, the appellant sought leave to appeal the judgment which was
granted on 22 November 2024.
The Material Facts
[4] On 16 September 2016 the appellant was arrested by unknown police
officials of the South African Police Services (“ SAPS”) on charges of
murder and or/assault with intent to commit grievous bodily harm.
[5] On the 14 November 2017, a year and two months later, the appellant was
released on bail.
[6] On 11 December 2017 the appellant was acquitted, although in the
pleadings it was stated that the charges were withdrawn.
[7] After his acquittal, the appellant returned home to KwaZulu-Natal. Whilst
at home, he stated that he appreciated that he had been unlawfully
arrested as he did not commit the crimes he had been accused of and that
he should, in his words, “make a claim, because I have lost a lot of time in
detention.” It is not clear from the appellant’s evidence when he came to

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this realisation but he stated that in May 2018 he decided to “go and consult
with the lawyers.”1
[8] During early May 2018 the appellant approached Leon JJ Van Rensburg
Attorneys (“the appellant’s attorneys”) for legal advice. The appellant was
advised that he had a valid claim against the respondent for unlawful arrest
and detention. The appellant testified that this was the first time that he
acquired knowledge that he had a claim against the respondent for
unlawful arrest and detention, which evidence was not challenged in cross-
examination.
[9] On 15 May 2018 the appellant’s attorneys sent a notice in terms of section
3(1) of the Institution of Legal Proceedings Act (“ the section 3(1) notice”)
to the respondent per registered post. This was within 6 months of his
acquiring knowledge that he had a claim against the respondent for
damages.
[10] The summons was served on 27 June 2018.
[11] The respondent alleged that it only received the notice on 3 August 2018.
This was not common cause (although the appellant did not serve a
replying affidavit), but the appellant’s counsel argued that even if proof of

1 Record p26-464 l 18-25

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actual receipt of the section 3(1) notice was required (which was denied),
this was in any event still within six months of the appellant becoming
aware that he had a claim against the respondent.
[12] At the commencement of the proceedings on 24 July 2023, so confident
were the counsel appearing for the parties about the strength of their
respective cases that:
[12.1] The appellant’s counsel withdrew his application for condonation
on the basis that the appellant did not require condonation as he
had served the requisite 3(1) notice per registered mail within 6
months from the date upon which the debt arose, namely on 1 1
December 2017 when the charges against the appellant were
withdrawn.
[12.2] The respondent’s counsel conceded the merits and indicated that
the only issues that remained for determination were the quantum
of the claim and the special plea raised by the respondent.
[13] The merits having been conceded, it is common cause that the plaintiff was
wrongfully and unlawfully arrested and detained by members of the SAPS
The material findings made by the court a quo
[14] The Court a quo made the following material findings:

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[14.1] The issue about whether the appellant’s claim has prescribed does
not arise since the summons was served on 27 June 2018, well
within the 3 -year period of prescription 2 as prescription
commenced on the date of the appellant’s arrest on 16 September
2016.
[14.2] The appellant’s claim was not one for malicious arrest and
detention but for wrongful arrest and detention.
3
[14.3] Before issuing summons, the appellant had to comply with the
provisions of sections 3 and 4 of the Institution of Legal
Proceedings Act and give notice in writing of his intention to
institute legal proceedings against the defendant within six months
from the date on which the debt became due in terms of section
3(2) of the Act.
4
[14.4] It was not disputed that the respondent only received the section
3(2) notice on 3 August 2017 (in fact the date was 3 August 2018)
as the appellant did not file a replying affidavit. The appellant did

2 Judgment, Vol 5 p 26-396, para 14.
3 Ibid, p 26-398, para 20
4 Ibid, p 26-397, para 18

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not indicate what reasonable steps had been taken to ensure that
the notice was received by the respondent.5
[14.5] Even if the requisite notice had been posted and received on 15
May 2017 (in fact it was May 2018), it was not served within 6
months from which the debt arose:
14.5.1. The debt for wrongful arrest arose on 16 September 2016.
which was the date of the appellant’s arrest.
14.5.2. The debt for wrongful detention arose on 16 September
2016 but continued until he was released on bail on 14
November 2017.
6
[14.6] As the section 3(1) notice was not served within the requisite six
months period from 16 September 2016 (in respect of his unlawful
arrest claim) and 14 November 2017 (in respect of his unlawful
detention claim), and the appellant had failed to apply for
condonation, the special plea raised by the respondent had to be
upheld.
7

5 Ibid, para 22
6 Ibid, para 23
7 Ibid, para 24 and p 26-399, para 26

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[14.7] It was thus not necessary for the court to decide the issue of
quantum as the appellant had not served his section 3(1) notice
within the requisite six month period and had withdrawn his
application for condonation.8
[14.8] Had the appellant applied for condonation, the learned judge
indicated that he would have granted condonation. 9 In support of
this, the learned judge stated the appellant “ obviously could not
serve it [the section 3(1) notice] within six months whilst he was in
custody. He is a lay person and was informed of his rights to do so
when he consulted his attorney in May 2017. The Legal
Proceedings Act makes provision for him to have applied for
condonation which he initially brought and then withdrew.” (The
appellant in fact only consulted his attorney in early May 2018.)
[15] Implicit in this latter statement made by Francis J is that the court a quo
may have accepted that the six month period for the purposes of the
section 3(1) notice would not commence to run until the appellant had
knowledge of his rights which only occurred in May 2018 when he
consulted his attorney. I pause to mention that on this basis, the court a
quo ought not to have found that condonation was required and the learned

8 Ibid, para 15
9 Ibid, para 25

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judge made a serious mistake of fact in stating that the appellant had
consulted his attorney during May 2017 as he had in fact consulted his
attorney at the beginning of May 2018. On the assumption that this was
the relevant date from which the six month period would commence to run,
there would have been no need for the appellant to have applied for
condonation as the section 3(1) notice was served on 15 May 2018, shortly
after consulting his attorney.
[16] In any event, Francis J apparently refused to hear the condonation
application, insisting that this needed to be heard in the interlocutory court
and not by the trial court. The appellant’s counsel explained that his
decision to withdraw the condonation application was to avoid the
postponement of the matter to bring the condonation application in the
interlocutory court and the inevitable delay that this would cause in the
finalisation of the matter. He stated that he felt confident that the special
plea would not succeed as the appellant’s attorney had timeously served
the section 3(1) notice within six months of the appellant acquiring
knowledge of his claim. It had also been served within six months after the
appellant was acquitted on 11 December 2017.
[17] I will now deal with the arguments advanced by the party’s respective
counsel. For convenience, I will refer to the arguments raised by the
parties’ counsel as those raised by the respective parties themselves, i.e.
“the appellant” and “the respondent” although in fact these arguments were

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advanced on their behalf by their counsel in their heads of argument and
during the hearing of the appeal.
The contentions raised by the appellant
[18] In terms of section 3(1) of the Institution of Legal Proceedings Act, the
required section 3(1) notice must be issued within six months “from the
date on which the debt became due.”
[19] However, in terms of section 3(3)(a) of the Act, “ 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.”
[20] The appellant states that he only became aware of his claim against the
respondent and his rights to sue the respondent during May 2018. This is
when the appellant consulted his attorney and thus when he acquired
“knowledge of the identity of the debtor and the facts from which the debt
arises”. This evidence was not contested by the respondent.
[21] It is evident that the entire set of facts and complete cause of action to

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approach a court to recover the debt only occurred when the applicant
approached its attorneys of record.10 This, thus, was the date upon which
the respondent’s debt should be regarded as being due within the meaning
of section 3(3)(a) of the Institution of the Legal Proceedings Act. 11For this
proposition the appellant relied upon a number of authorities dealt with in
the course of this judgment and referred to in the footnote below.
12
[22] The appellant’s attorney sent the section 3(1) notice by registered post to
the Commissioner of SAPS in the same month and thus well within the
required six month period.
[23] Accordingly, there was no need for the appellant to apply for condonation.
[24] The only issue that ought properly to have been before the court a quo was
the quantum of the appellant’s damages.

10 Appellant’s HOA, p25 -76, para 4.16
11 Appellant’s HOA, p25-75, para 4.9-4.12
12 Sello v Minister of Police N.O and Another (89077/16) [2022] ZAGPPHC 233 (13 April 2022),
Diko v MEC for Health (583/2018) [2022] ZAECBHC 11 (22 March 2022), Truter and Another
v Deysel 2006 (4) SA 168 (SCA), Makhwelo v Minister of Safety and Security 2017 (1) SA
274 (GJ) and Member of the Executive Council for Education, KwaZulu- Natal v Shange
[2013] JOL 30039 (SCA)

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THE CONTENTIONS RAISED BY THE RESPONDENT
[25] The appellant never replicated to the respondent’s special plea, and it was
thus uncontested.13
[26] The relevant date for determining when the debt became due in matters
involving unlawful arrest and detention is the date of arrest and not the date
of the withdrawal of the matter against the plaintiff. 14 (In fact the appellant
testified that he was acquitted.)
[27] On this basis, the required notice was not sent within six months of the
cause of action arising.
[28] Thus, it was indeed necessary for the appellant to have applied for
condonation for the late filing of its section 3(1) notice.15

13 Respondent’s HOA, p 25-37, para 2.10 read with p 25.-35, para 1.3
14 In this respect, reliance was placed on Phala v Minister of Safety and Security at paragraph
66 at p 357 and Madinda v Minister of Safety and Security [2008] 3 All SA 143 (SCA). After
the hearing, the respondent uploaded a further authority, namely Kutoane v Minister of Police
and Others (17387/19) [2024] ZAGPJHC 529 (31 May 2024) which, in the interest of justice,
this court has had regard to.
15 Relying upon Ellerines Holdings Ltd v Commissioner for Conciliation, Mediation & Others
(2008) 23 ILJ 1982 (LC), South Africa Transport and Allied Workers Union v Tokiso Dispute
Settlement & Others (2015) 36 ILJ (LAC), Zide Mothibeli and Minister of Police and Another
(42399/2019) [2020] ZAGPJHC 308 (4 December 2020), Minister of Agriculture and Land

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[29] In any event, even if the debt only became due on the date of the
withdrawal of the charges against the appellant during December 2017, in
terms of section 4(1)(a) of the Institution of Legal Proceedings Act, a notice
must be served on an organ of State by delivering it by hand or by sending
it by certified mail or, subject to subsection (2), by sending it by electronic
mail or by transmitting it by facsimile. In the case where the organ of State
is “the Department of Police, the notice must be sent to the National
Commissioner and the Provincial Commissioner of the Province in which
the cause of action arose, as defined in section 1 of the South African
Police Service Act, 1995."
[30] In terms of subsection 4(2)(a), it was incumbent upon the appellant to
ensure that the notice came to the Commissioner’s attention within the
stipulated period. The appellant had not done so as the notice only in fact
came to the attention of the respondent (as per the date stamp) on 3
August 2018, which was beyond the required which was beyond the
required six month period.
[31] Moreover, in terms of section 4(2)(b) the appellant was also obliged within
seven days after the date upon which that notice was so sent or
transmitted, to deliver by hand or send by certified mail a certified copy of

Affairs v CJ Rance (Pty) Ltd 2010 (4) SA 109 (SCA) at para [13], James Brown & Hamer
(Pty) Ltd v Simmons 1963 (4) SA 656 (A) at 660 E-G.

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that notice to the relevant officer or person referred to in subsection (1),
which must be accompanied by an affidavit by the creditor or the person
who sent or transmitted the notice proving that the notice had been sent
and indicating what steps were taken to draw it to the Commissioner’s
attention.
The Relevant Legislative Provisions
[32] Section 3 of the institution of Legal Proceedings Act provides:
“
3 Notice of intended legal proceedings to be given to organ of state
(1) No legal proceedings for the recovery of a 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 in
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

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(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)-
(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.
(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 unreasonably prejudiced
by the failure.
(c) If an application is granted in terms of paragraph (b), the
court may grant leave to institute the legal proceedings in
question, on such conditions regarding notice to the organ
of state as the court may deem appropriate.

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[33] Section 4 in turn stipulates:
“Service of notice
(1) A notice must be served on an organ of state by delivering
it by hand or by sending it by certified mail or, subject to
subsection (2), by sending it by electronic mail or by
transmitting it by facsimile, in the case where the organ of
state is-
(a) a national or provincial department mentioned in the
first column of Schedule 1, 2 or 3 to the Public
Service Act, 1994 (Proclamation 103 of 1994), to the
officer who is the incumbent of the post bearing the
designation mentioned in the second column of the
said Schedule 1, 2 or 3 opposite the name of the
relevant national or provincial department: Provided
that in the case of the Department of Poli ce, the
notice must be sent to the National Commissioner
and the Provincial Commissioner of the province in
which the cause of action arose, as defined in
section 1 of the South African Police Service Act,
1995;
(b) a municipality, to the municipal manager appointed
in terms of section 82 of the Local Government:
Municipal Structures Act, 1998 (Act 117 of 1998);
(c) a functionary or institution referred to in
paragraph (c) of the definition of 'organ of state', to
the chairperson, head, chief executive officer, or
equivalent officer, of that functionary or institution, or
where such functionary is a natural person, to that
natural person;
(d) the South African Maritime Safety Authority, to the
chief executive officer of that Authority appointed
under section 22 of the South African Maritime
Safety Authority Act, 1998 (Act 5 of 1998);
(e) T he South African National Roads Agency Limited,
to the chief executive officer of that Agency
appointed under section 19 of The South African
National Roads Agency Limited and National Roads

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Act, 1998 (Act 7 of 1998); or
(f) a person referred to in paragraph (f) of the definition
of 'organ of state', to that person.
(2) If a notice has been sent by electronic mail or transmitted
by facsimile as contemplated in subsection (1), the creditor
must-
(a) take all reasonable steps to ensure that the notice
has been received by the officer or person to whom
it was so sent or transmitted; and
(b) within seven days after the date upon which that
notice was so sent or transmitted, deliver by hand or
send by certified mail a certified copy of that notice
to the relevant officer or person referred to in
subsection (1), which must be accompanied by an
affidavit by the creditor or the person who sent or
transmitted the notice-
(i) indicating the date on which and the time at
which, and the electronic mail address or
facsimile number to which, the notice was so
sent or transmitted;
(ii) containing any proof that it was sent or
transmitted;
(iii) setting out the steps taken in terms of
paragraph (a); and
(iv) indicating whether confirmation of the receipt
of the notice has been obtained and, if
applicable, the name of the officer or person
who has given that confirmation.”
[34] Although prescription is not an issue in this matter, the provisions of the
Prescription Act no 68 of 1969 (“ the Prescription Act”) remain relevant in
determining when a debt is to be regarded as due.

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[35] The relevant provision is section 12 of the Prescription Act which reads:
“12 When prescription begins to run
(1) S ubject to the provisions of subsections (2), (3), and
(4), prescription shall commence to run as soon as the debt
is due.
(2) If the debtor wilfully prevents the creditor from coming to
know of the existence of the debt, prescription shall not
commence to run until the creditor becomes aware of the
existence of the debt.
(3) A debt shall not be deemed to be due until the creditor has
knowledge of the identity of the debtor and of the facts from
which the debt arises: Provided that a creditor shall be
deemed to have such knowledge if he could have acquired
it by exercising reasonable care.”
[36] It is readily apparent that the wording of section 12 of the Prescription Act
mirrors that in section 3 of the Institution of Legal Proceedings Act and thus
the case law applicable thereto will be relevant to section 3 of the latter
Act.
The Issues to be decided
[37] The issues to be decided are as follows:
[37.1] When is the debt to be regarded as due in claims for damages for
unlawful arrest and detention within the meaning of section 3(2) of
the Institution of Legal Proceedings Act and in particular, is this the
date upon which the claimant was arrested and detained, the date

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upon which he was released on bail or the date that he was
acquitted?
[37.2] When did the appellant acquire knowledge of the identity of the
organ of state and of the facts giving rise to the debt within the
meaning of section 3(3)(a) of the Act, and in particular, whether
such knowledge was only acquired on the date that the appel lant
consulted his attorney?
[37.3] Could the appellant on the present facts be regarded as having
acquired such knowledge prior to his consulting his attorney by
exercising reasonable care within the meaning of section 3(3)(a)
of the Act?
[37.4] Did the respondent wilfully prevent the appellant from acquiring
such knowledge?
[37.5] Was it incumbent upon the appellant to take steps to ensure that
the section 3(1) notice came to the attention of the Commissioner
and have to comply with the provisions of subsection 4(2) of the
Act in circumstances where the notice was sent by registered
mail?

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[37.6] What is the effect of the appellant not filing a replication to the
special plea?
[38] I will deal with the last two issues first as they are the easiest to dispose
of.
The Obligation upon the Appellant to comply with section 4(2) of the Institution of
Legal Proceedings Act
[39] The appellant sent the required notice to the Commissioner by registered
post (certified mail) as permitted in terms of section 4(2). The notice was
not sent by electronic mail or by facsimile and thus the provisions of section
4(2) did not have to be complied with.
[40] In Imperial Bank v Kubheka (28713/08) [2010] ZAGPPHC 3 (4 February
2010) the court emphasised that often the date stamp on the registered
post slip is accepted as the date on which the letter would have been
dispatched at the post office to the addressee. It was accepted that service
by registered post creates a presumption of receipt thereof within three
days from date of posting.
[41] Accordingly, the court a quo erred in finding that it was incumbent upon the
appellant to take steps to ensure that the section 3(1) notice was received;
it was presumed to have been received within three days of its despatch.

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It is thus not relevant that the notice only came to the Commissioner’s
attention on 3 August 2018.
What is the effect of not filing a replication to the special plea?
[42] Rule 25 in relevant part provides:
“(2) No replication or subsequent pleading which would be a mere joinder
of issue or bare denial of allegations in the previous pleading shall be
necessary, and issue shall be deemed to be joined and pleadings
closed in terms of paragraph (b) of rule 29.
(3) Where a replication or subsequent pleading is necessary, a party may
therein join issue on the allegations in the previous pleading. To such
extent as he has not dealt specifically with the allegations in the plea
or such other pleading, such joinder of issue shall operate as a denial
of every material allegation of fact in the pleading upon which issue is
joined.
”

[43] Thus, in terms of Rule 25(3), if you fail to replicate to a special plea, the
factual allegations made in the special plea are automatically regarded as
if they have been denied by the appellant. No specific replication is needed
if the plaintiff is simply denying the facts and not raising new issues.
[44] Rule 25(2) makes it plain that no replication or subsequent pleading which
would be a mere joinder of issue or bare denial of allegations in the
previous pleading is necessary, and issue is deemed to be joined and the
pleadings closed at the expiration of the relevant period of time.

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When is the debt to be regarded as due in claims for unlawful arrest and detention?
[45] This is the far more interesting question for which there is a great deal of
conflicting authority.
Complete cause of action
[46] In Truter and Another v Deysel 2006 (4) SA 168 SCA (“Truter”), the
Supreme Court of appeal explained that:
“A debt is due when a creditor acquires a complete cause of action for
the recovery of the debt, that is, when the entire set of facts which the
creditor must prove in order to succeed with his or her claim against
the debtor is in place or, in other words, when everything has happened
which would entitle the creditor to institute action and to pursue his or
her claim
.”
[47] The following year, in Minister of Finance v Gore NO 2007 (1) SA 111
(SCA) the same court held at para (17] that time begins to run against the
creditor when it has the minimum facts that are necessary to institute
action. This would also be the date from which the six-month period would
begin to run for the issuing of a section 3(1) notice.
[48] The question that arises is when is the plaintiff in unlawful arrest and
detention claims to be regarded as having a complete cause of action in
this sense? Is this the date of his arrest and detention, the date of his
acquittal or withdrawal of the charges, or is it the date he consults his

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attorney and acquires knowledge that he has a claim. There is authority
supporting all three of these possibilities which will be examined below.
[49] In doing so, I will first deal with the authorities supporting the appellant’s
contention that claims for arrest and detention, like those for malicious
prosecution, constitute a continuing wrong and only arise on the date that
the claimant is released from detention, alternatively when the charges
against the claimant are withdrawn or he is acquitted. Thereafter, I will deal
with the authorities rejecting this stance and finding that claims for unlawful
arrest and detention must be distinguished from claims for malicious
prosecution and do not constitute a continuing wrong but rather, arise on
each day of detention.
[50] After this, I will examine the cases dealing with the requirement of
knowledge and the conflicting authorities as to what needs to be known to
a claimant before he becomes obliged to serve the required section 3(1)
notice within a period of six months of this date. In particular, I will examine
the case law and consider when the claimant can be said to have acquired
knowledge of his claim. Finally I will deal with the case law setting out the
circumstances under which the claimant can be regarded as having
deemed knowledge of the relevant facts obliging him to serve the required
notice. I will do so under the headings set out below. In all of the cases
cited in this judgment, the footnotes have been omitted.

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Continuous Proceedings: Malicious prosecution and malicious arrest and
detention- the date of withdrawal of the charges or acquittal of the plaintiff
[51] It would appear to be trite that in claims for damages for malicious
prosecution, the proceedings are regarded as being continuous and thus
the relevant date for the purposes of prescription and for the despatch of a
section 3(1) notice is the date of the withdrawal of the charges or acquittal
of the plaintiff.
[52] One of the earliest judgments on this topic was delivered by the then Chief
Justice, De Villiers CJ in a case with a most unfortunate name, Lemue v
Zwartbooi (1896) 13 SC 403 (“Lemue ”). In this matter De Villiers CJ
stated that the actio iniuriarum could not be brought while the prosecution
was pending, but only after it had come to an end. He explained that, while
a prosecution is pending, its result
“. . . cannot be allowed to be prejudged by the civil action, but as soon as the
Attorney-General, in the exercise of his quasi-judicial function, has decided not
to prosecute, there is a sufficient termination of the original proceedings to
allow the civil action being tried.”
[53] Following this judgment, it was generally accepted that in an action for
malicious prosecution, no action will lie until criminal proceedings have
terminated in favour of the plaintiff. The reason given for this is that the
proceeding from arrest to acquittal must be regarded as continuous, and
thus no action will arise until the plaintiff was discharged or acquitted.

- 25 -




[54] In Unilever Bestfoods Robertsons (Pty) Ltd and Others v Soomar and
Another 2007 (2) SA 347 (SCA) (“Unilever”) Farlam JA stressed that the
cause of action is not complete until damage has been suffered. However,
applying what is termed as the “once and for all rule”, he stressed that both
the actual damage then suffered and prospective damage needed to be
claimed, unless an essential element of a claim had not yet occurred.
Although the case involved a matter of maliciously instituted civil
proceedings and not a claim for malicious prosecution, Farlam JA pointed
out that in claims for malicious prosecution, the cause of action would not
arise until the proceedings had terminated in the plaintiff’s favour. It was
held at para 11:
"
With us also there can be no question of a delict having been committed
unless the conduct of the defendant of which the plaintiff complains has caused
damage and then all damage resulting from that conduct, whether 'already
realized or . . . merely prospective', can be claimed (see Oslo Land Co Ltd v
Union Government 1938 AD 584 at 590), unless an essential element of the
delict complained of (such as the termination of proceedings in the plaintiff's
favour in the case of the delict of malicious prosecuti on, see Lemue v
Zwartbooi, supra) has not yet occurred."
[55] This approach was followed by Eksteen J in Thompson and Another v
Minister of Police and Another 1971 (1) SA 371 (E) (“Thompson”) who
relied on Lemue and Unilever: Lemue was relied on in support of the
proposition that while the prosecution is actually pending its result cannot
be allowed to be prejudged in the civil action; Unilever supported the
notion that no personal injury has been done to the accused until the
prosecution has been determined by his discharge. This meant that in

- 26 -




claims for malicious prosecution, the debt is not due until the proceedings
have terminated in the plaintiff’s favour.
[56] Eksteen J was the view that these principles should apply equally to claims
for malicious arrest. However, Eksteen J drew a distinction between claims
for wrongful arrest and malicious arrest. He stated at 374-5:
“
Both claims, i.e. in respect of the wrongful arrest and in respect of the
malicious arrest, are based on the actio injuriarum and in both instances
the animus injuriandi or dolus is an essential element. In the case of wrongful
arrest, however, the intention may be said to be direct - dolus directus - as it is
done with the definite object of hurting the defendant in his person, dignity or
reputation (Melius de Villiers on The Law of Injuries, p. 27). The arrest itself
is prima facie such an odious interference with the liberty of the citizen
that animus injuriandi is thereby presumed in our law, and no allegation of
actual subjective animus injuriandi is necessary (Foulds v. Smith, 1950 (1) SA
1 (AD) at p. 11). In such an action the plaintiff need only prove the arrest itself
and the onus will then lie on the person responsible to establish that it was
legally justified. (Theron v. Steenkamp, 1928 CPD 429 at p.
432; Ingram v. Minister of Justice, 1962 (3) SA 225 (W) at p. 227).
In the case of malicious arrest the intention to injure is indirect -dolus
indirectus - as the action of the defendant in instigating the arrest or setting the
wheels of the criminal law in motion is done as a means for effecting another
object, viz. the ar rest of the plaintiff, the consequence of which act the
defendant is aware will necessarily be to hurt the plaintiff in regard to his
person, dignity or reputation.
In an action based on malicious prosecution it has been held that no action will
lie until the criminal proceedings have terminated in favour of the plaintiff. This

lie until the criminal proceedings have terminated in favour of the plaintiff. This
is so because one of the essential requisites of the action is proof of a want of
reasonable and probable cause on the part of the defendant, and while a
prosecution is actually pending it's result cannot be allowed to be pre -judged
by the civil action (Lemue v Zwartbooi, supra arr p.407). The action therefore
only arises after the criminal proceedings against the plaintiff have terminated
in his favour or whether the attorney general has declined to prosecute. To my
mind the same principles must apply to an action based on malicious arrest
and detention where a prosecution ensues on such arrest, as happened in the
present case. The proceeding from arrest to acquittal must be regarded as
continuous, and no action for personal injury done to the accused person will
arise until the prosecution has been determined by his discharge. (Bacon v
Nettleton, 1906 T.H. 138 at pp 142-3).”

- 27 -




[57] Thompson is thus authority for the proposition that both in cases of
malicious arrest and malicious prosecution, the debt is only regarded as
due when the prosecution has been completed in favour of the plaintiff.
Eksteen, however, took a different approach to clams based on unlawful
arrest and detention as explained under a separate heading below.
[58] The finding made by Eksteen J as to when a claim based on malicious
prosecution arises was followed by Foxcroft J in Els v Minister of Law
and Order and Others 1993 (1) SA 12 (C) (“Els”). Foxcroft J found at p
17 that Eksteen J’s approach was “fully in accordance with common sense
and the practical resolution of litigation that accused persons in criminal
cases against whom prosecutions had commenced should not be required
to commence civil litigation before the conclusion of the criminal
proceedings”.
[59] It was held further in Els that the cause of action for malicious prosecution
commenced to run from the date on which the plaintiff was informed that
the Attorney-General had decided not to prosecute him.
[60] In Holden v Assmang Limited (1277/2019) [2020] ZASCA 145; 2021 (6)
SA 345 (SCA) (5 November 2020), the Supreme Court of Appeal stressed
that only knowledge of the requisite facts is required, not the legal
conclusions flowing from those facts as set out below:

- 28 -




“[7] The appellant’s case is that her cause of action only arose and prescription
only started running after the HPCSA notified her that the respondent’s
complaint against her had been dismissed and that was on 13 November 2009.
It is settled law that prescription begins to run as soon as the debt is due and
the creditor knows the identity of the debtor and the facts giving rise to the
debt. A creditor who could have acquired the knowledge by exercising
reasonable care is deemed to have such knowledge. It h as authoritatively
been held that knowledge of legal conclusions is not required before
prescription begins to run.”
[61] The court set out the requirements for a claim for malicious prosecution
and explained that because the last requirement was that the prosecution
had failed, the claim could not be proceeded with until this last requirement
had been met. This was essentially the approach that had been taken in
Unilever: It was explained by Dlodlo JA who gave the unanimous
judgment of the Supreme Court of Appeal:
“[8] In order to succeed, on the merits, with a claim for malicious prosecution,
a claimant must allege and prove:
‘(a) that the defendant set the law in motion (instigated or instituted the
proceedings);
(b) that the defendant acted without reasonable and probable cause;
(c) that the defendant acted with ‘malice or animo iniuriandi ); and
(d) that the prosecution has failed.

[9] The importance of the fourth requirement, which is the only one with which
we are concerned in this appeal, lies in the fact that the claim can only arise if
the proceedings were terminated in the plaintiff’s favour. That is so because a
claim for malicious proceedings cannot anticipate the outcome of proceedings
yet to be finalised. To hold otherwise would permit recognition of a claim when
the proceedings may yet be decided against the plaintiff.
[10] A claim for malicious prosecution can ordinarily only arise after the

[10] A claim for malicious prosecution can ordinarily only arise after the
successful conclusion of the criminal case in a plaintiff’s favour. In a criminal
matter, such a favourable conclusion in the plaintiffs’ favour would occur on
acquittal or the withdrawal of the charges. The institution of a civil claim based
on a malicious prosecution before such prosecution has been finalised in the
plaintiff’s favour, may amount to prejudging the result of the pending
proceedings. There is no discernible distinction between pending criminal
proceedings and proceedings before statutorily created professional tribunals.

- 29 -




The HPCSA is such a tribunal. The cause of action applies to both civil and
criminal proceedings and not only the latter.”
[62]
The Court further explained that prescription begins to run only when the
cause of action is complete and in the case of a claim for malicious
prosecution, that is only when the proceedings have been resolved in
favour of the plaintiff/applicant:
“[17] A debt is due, owing and payable within the meaning of s 12(1) of the
Prescription Act when the creditor acquires a complete cause of action for the
recovery of the debt. What this means is that the entire set of facts which the
creditor must prove in orde r to succeed with his/her claim against the debtor
must be in place. In other words, when everything has happened which would
have entitled the creditor to institute action and to [pursue] his/her claim.
[18] I conclude that from the aforegoing it is clear that the appellant’s cause of
action only arose and prescription only started to run when the HPCSA notified
the appellant that the respondent’s complaint against her had been dismissed.
That was on 13 November 2009. It was only then that the appellant would have
been able to establish the fourth and final requirement for an action for
malicious prosecution. It follows that as at the date of summons, the claim or
debt had not prescribed
.”
Continuous Proceedings: Unlawful arrest and detention- the date of the termination
of the detention
[63] The cases dealt with under this head emphasise that, like claims for
malicious prosecution, claims for unlawful arrest and detention must be
regarded as a continuous wrong and cannot be brought until the plaintiff’s
period of detention has been terminated.
[64] The first case I wish to mention is a matter heard in this division by Spilg J
in Makhwelo v Minister of Safety and Security 2017 (1) SA 274

- 30 -




(GJ) (“Makhwelo”). Spilg J adopted the same approach taken with regard
to claims for malicious prosecution to claims based on unlawful arrest and
detention, and found that the relevant date to determine whether a section
3(1) notice had been timeously served was the date that the accused was
discharged.
[65] Relying on Unilever, Spilg J formulated his view on the following three
premises:
[65.1] Claims for unlawful arrest and detention, like claims for malicious
prosecution, constituted a continuous wrong and before the
plaintiff could be expected to institute his action, it was necessary
that he be able to quantify his damages. As the quantum of his
damages was dependent upon the period of his detention, it stood
to reason that this was not possible until the period of his detention
had terminated.
[65.2] Wrongful arrest and detention claims were distinguishable from
other delictual claims where the plaintiff was expected to claim his
actual and prospective damages upfront as until the proceedings
were terminated in favour of the plaintiff, his prospective damages
suffered would be pure speculation.

- 31 -




[65.3] The requirement of knowledge in section 3 of the Institution of
Legal Proceedings Act meant that the plaintiff could not be
expected to be aware of the facts establishing his cause of action
unless and until he had had sight of the docket.
[66] Spilg J reasoned that because the claimant would not have sight of the
docket at the time of his arrest, the claimant would not be able to ascertain
whether or not the arresting officer had a reasonable suspicion that he had
committed an offence at the time of his arrest. Thus, he found that even in
the case of unlawful arrest, the claim would not necessarily arise at the
date of the arrest.
“
54. In the case of wrongful arrest and detention without a warrant the plaintiff
must prove that the arresting officer had no reasonable suspicion that he had
or was going to commit a scheduled offence. The plaintiff must also be able to
quantify the damages suffered.
This results in a number of further distinguishing features which are possibly
unique to claims for wrongful arrest and detention without a warrant. I attempt
to deal with them in the following paragraphs.
55. As to the first requirement of knowledge of the material facts: It is difficult
to appreciate that at the time of the arrest or even during detention the suspect
would have sight of the docket in order to form a view that the arresting officer
did not have a reasonable suspicion that an offence had been committed. …
…
Since the docket is not available to an accused until the investigation is
completed and he is presented with the indictment, it is most unlikely that the
identity of the complainant or the evidence that was available when the arrest
was made would be known to a would be plaintiff . Without that knowledge a
plaintiff cannot assume that the arresting officer was acting unlawfully when
effecting the arrest rather than that the complainant had falsified a charge

- 32 -




against him.
[67] Splig J went on to further reason that because a claim for wrongful arrest
and detention are regarded as a single cause of action, the claim for
wrongful arrest cannot lie until the claim for wrongful detention is complete;
the latter is not complete, so he said, until the period of detention is known
and the claimant is released from detention following the withdrawal of the
charges, his acquittal or discharge. He explained that unlike other claims
based on the lex Aquilia, prospective damage cannot be claimed for the
wrongful detention at the date of the arrest as this would be mere
speculation. He stated:
“56. The claim for wrongful arrest and detention has always been treated as a
single cause of action. Each involves at least an aspect of the deprivation of
liberty and the wrongful deprivation of liberty by the police is inextricably
dependent on it being shown that the arresting officer could not have formed
a reasonable suspicion that an offence had been or was going to be
committed.
…
57. Unlike a claim under the lex Aquilia or possibly other causes of action
where it is accepted that prospective damages must be assessed and claimed
up front, it is impossible to assess a claim for damages based on speculating
when the criminal trial of a person held in custody might be finalised or
if charges might be dropped at some earlier stage.
Accordingly the fundamental rationale for calculating prospective damages is
wanting; namely that either there was a single injury which has resulted
in sequelae that can be assessed provided suitable contingency factors are
taken into account and on which actuarial assessments can be made, or that
prospective damages can be determined on a daily basis as long as the harm
continues and for which contingencies are capable of some rational
assessment.

- 33 -




Personal injury cases illustrate the former….
In the case of wrongful arrest, damages are not reckoned at a daily rate but by
reference to the overall length of incarceration and the degradation suffered.
Case law confirms that it is not a simple matter of multiplication. See
generally Minister of Safety and Security v Seymour 2009 (6) SA 320 (A).
58. Unique considerations are involved in cases of wrongful arrest and
detention because other delicts involve either physical injury, damage to or
loss of property or involve an objectively ascertainable failure to comply with
formalities that renders th e action unlawful and which are not dependent on
the outcome of criminal proceedings (eg; Slomowitz).
In the case of an arrest and detention there is a deprivation of liberty and loss
of dignity which will be justified if there is a conviction. It is difficult to appreciate
how a debt can be immediately claimable and therefore justiciable which is
the second requirement for a debt being due (see Deloitte Haskins ) prior to
the outcome of the criminal trial or prior to charges being dropped or otherwise
withdrawn.” [The case referred to is Slomowitz v Vereeniging Town
Council 1966 (3) SA 317 (A)].
[68] The Free State High Court, Bloemfontein agreed with Unilever that claims
for unlawful arrest and detention should be considered as a continuing
wrong in Mothobi Albert Tlake v The Minister of Police and
Another, (377/2014) [2017] ZAFSHC 178 (20 October 2017) (“Tlake ”)
where it was held that the claim does not arise before the acquittal of the
claimant. It was stated:
“ [9] Not only am I bound by Unilever supra but do I respectfully align myself
therewith that the proceedings from arrest to acquittal is to be regarded as
continuous and that the plaintiff's claim did not arise before his acquittal. The
special plea therefore stands to be dismissed.”
[69] Hulley AJ took a slightly different approach in Minister of Police v Lebelo

[69] Hulley AJ took a slightly different approach in Minister of Police v Lebelo
2022 (2) SACR 201 (GP) (“ Lebelo”). Hulley AJ (who delivered the
judgment for the full court in this division) stressed that unlawful arrest and

- 34 -




detention must not be conflated with malicious arrest and detention : In
cases of wrongful arrest, this arises at the date of the arrest as it involves
a single act. Hulley AJ explained, however, that so long as the claimant
remained in detention, his detention constituted a continuing wrong:
"
A wrongful arrest involves a single act, but, for so long as the accused remains
in the detention of or under the vicarious control of the Minister of Police, his
detention constitutes a continuing wrong."
[70] A novel approach was taken by Holland-Muter J in Mashaba v Minister
of Police (54940/2012) [2023] ZAGPPHC 2023 (18 December 2023)
based upon the manner in which the claim for wrongful arrest and detention
had been pleaded. The court emphasised that the cause of action in the
summons was for the unlawful arrest and detention of the plaintiff; there
was no separate claim for the unlawful arrest and unlawful detention, and
a globular amount of damages was claimed for his allegedly unlawful
arrest and detention.
[71] The Court reasoned that, where a claim had only been for unlawful arrest,
or where the claimant was released for a certain period and detained again
later, the cause of action would be completed upon arrest. However, in
matters such as the one that was before court, where there was an
unlawful arrest and continuous unlawful detention, this amounted to a
“continuing wrong” and thus prescription only started to run from the date
of release from custody. Accordingly, the Court held that the claim had not

- 35 -




prescribed, and the Minister‘s special plea was dismissed. Holland-Muter
J stated:
“[17] The present matter ought to be distinguished from those instances where
the arrest does not result in a continuous detaining of the person
because "the proceeding from arrest to acquittal must be regarded as
continuous and no action for personal injury done to the accused person will
arise until prosecution has been determined by his discharge''
…
[19] In those instances where the arrest and detention constitutes a continuing
wrong, the basic facts to allege to institute action will only manifest after
release from custody. If that is correct, prescription can only start to run after
release from custody.
[20] It is not for this court to decide on the correctness of the pleaded cause of
action but merely whether the pleaded cause of action has prescribed or not.
In my view the particulars of claim purports to allege one cause of action and
a single award for damages in claimed for the personal injury suffered by the
plaintiff. It would have been different if a separate cause of action for the
arrest and a second cause of action for the on-going detention were averred,
but as is, the circumstances favour the notion that the plaintiff instituted a
single action for the alleged suffering he sustained due to the one alleged
wrong committed by the members of the defendant.”
[72] It is not clear whether the court was suggesting that where separate
damages are claimed for the unlawful arrest and detention, the relevant
date for the claim for the unlawful arrest would be the date of the arrest ,
as the arrest and detention would not constitute continuing wrongs ; the
claim based upon unlawful detention would, however, arise on the date
that his detention ceased.
[73] More recently in Makhatholela v Minister of Police and another
2024 JDR 3502 (GJ), the court relied on a number of cases,

- 36 -




including Nkosi v Minister of Police and Another (43325/2019 ),
Thabang v The Minister of Police N.O & Another (89077/2016) [2022]
ZAGPPHC para 15 (13 April 2022 ) and Mashaba which held
that arrest and detention through to discharge is continuous. The court
accordingly found that the debt only became due on discharge of the
plaintiff and thus, the matter had not prescribed.
[74] Similarly, in Malgas and Others v Minister of Justice and Correctional
Services, [2024] ZAGPPHC 1222 (25 November 2024) it was found by
Makhoba J that the cause of action became complete, and by extension,
prescription started to run, when the Constitutional Court vitiated the
plaintiffs’ convictions and sentences and ordered their release.
Non-continuous: The date of the arrest and the date of each day of detention (each
being a distinct cause of action)
[75] The authorities dealt with in this section suggest that there is a distinction
between claims for damages for allegedly maliciously instituted
prosecutions (which arise in the normal course on the date that the charges
are withdrawn or the accused was acquitted by the court) and those where
the cause of action is unlawful arrest and detention. They adopt the
approach that a claim for unlawful arrest arises at the moment of arrest,
even if the detention continues after this. A claim for unlawful detention

- 37 -




arises when a person is not brought to court after his arrest within 48 hours
and no court has ordered his lawful detention.
[76] Thus, even if the person was detained for a lengthy period after his arrest,
the cause of action arises for the unlawful detention at the moment it
became unlawful. Accordingly, in a claim for damages for unlawful
detention, prescription commences when the detention becomes unlawful.
Where the initial arrest was lawful, but the continued detention became
unlawful as he was not brought to court timeously and/or a court had not
authorised his continued detention, the cause of action arises from the
moment his detention became unlawful and a new cause of action arises
on each day of the plaintiff’s detention. The subsequent withdrawal of
charges or acquittal is not what makes the arrest or detention unlawful-it
may support a claim for malicious prosecution which is a separate cause
of action.
[77] This was an approach already taken by the Supreme Court of Appeal
during 2002 in Lombo v African National Congress 2002 (5) SA 668
(SCA) (“Lombo”) in which the Smalberger ADP explained that claims for
unlawful detention arise each day of the accused’s unlawful detention. It
was held that only those days of detention falling within the three-year
prescription period reckoned backwards from the date upon which the
summons was issued would be competent. Smalberger ADP explained:

- 38 -




"[26] The appellant's position is somewhat different in regard to his claim for
unlawful detention. His cause of action in this respect did not arise once and
for all on the day he was first detained, nor did it first arise on the day of his
release from detention. His continuing unlawful detention (if such it was) would
notionally have given rise to a separate cause of action for each day he was
so detained ( Ngcobo v Minister of Police 1978 (4) SA 930 (D), following
Slomowitz's case supra). The decision in Ramphele v Minister of Police 1979
(4) SA 902 (W), if not distinguishable on the facts, must be taken to have been
wrongly decided.
[27] On his release in August 1991 the provisions of s 13(1) [on the facts of the
case] would have entitled the appellant to claim damages for wrongful
detention for the full period of his detention provided he instituted action within
the prescribed one-year period, something he failed to do. However, the three-
year prescriptive period provided in s 11(d) of the Act preserved any claim for
unlawful detention arising within the period of three years preceding the
service of summons on 22 November 1993. His claim for unlawful detention
for the period 23 November 1990 until his release in August 1991 would
therefore still be extant. Any claim for wrongful detention arising before 23
November 1990 will have been extinguished by prescription in accordance
with the principles enunciated above
."
[78] In Thompson, Eksteen J stressed that in the case of wrongful arrest,
unlike cases for malicious arrest, the proceedings are not regarded as
continuous and the cause of action arises at the date of the arrest. Applying
these principles to the facts before him, Eksteen J found that the plaintiff
had not complied with the notice provisions in section 32(1) of the Police
Act 7 of 1958 (“the Police Act”), which was similar to those found in section
3 of the Institution of Legal Proceedings Act. He stated at p. 375:
“

3 of the Institution of Legal Proceedings Act. He stated at p. 375:
“
From this it follows that the plaintiffs' cause of action in respect of the alleged
malicious arrest and detention in the present case, can only have arisen on
the judgment of this Court allowing the appeal against their conviction in the
magistrate's court, i.e. on 29 April, 1969. This means that, in giving notice to
the second defendant on 20 September, 1968 and issuing summons on 25
October, 1968, they were complying with the provisions of sec. 32 of Act 7 of
1958, and it consequently becomes unnecessar y for me to consider whether
they were in fact required so to comply or whether the second defendant was
acting in pursuance of the Police Act at the time he was alleged to have
committed the delict.

- 39 -




In the main claim based on wrongful arrest however the position is different.
There the delict is committed by the illegal arrest of the plaintiff without the due
process of the law. Improper motive or want of reasonable and probable cause
required for malicious arrest have no legal relevance to this cause of action. It
is also irrelevant whether any prosecution ensues subsequent to the arrest;
and, even if it does, what the outcome of that prosecution is. The injury lies in
the arrest without legal justification, and the cause of action arises as soon as
that illegal arrest has been made. In the present case, therefore, the cause of
action in the main claims arose on 10 April 1967. In terms of the stated case I
am asked to assume not only that the arrest wa s wrongful, but also that in
effecting the arrest Hansen was acting in pursuance of the Police Act. That
being so, sec. 32 of Act 7 of 1958 applies and it is clear that this section has
not been complied with inasmuch as both the notice given to the defendants
and the subsequent issue of summons were outside the periods prescribed by
that section. Plaintiffs' actions against first and second defendants for wrongful
arrest are therefore out of time and cannot be entertained. This is the only
cause of action preferred against the first defendant, and in the light of the
conclusions to which I have come, it follows that both the plaintiffs' actions
against the first defendant must be dismissed with costs, which costs include
the first defendants costs in this proceeding.”
[79] In a judgment by Baqwa J in Annari du Plessis v Minister of Police and
2 Others (“Du Plessis”) (42774/2016) (2018) ZAGPPHC (18 June 2018),
sitting in the Gauteng Division, Pretoria, the plaintiff waited for the criminal
trial and thereafter, her appeal to be finalised before she sued the
defendant for wrongful arrest and her detention from 12-14 August 2011.
[80] Baqwa J warned that claims for malicious prosecution and claims for

[80] Baqwa J warned that claims for malicious prosecution and claims for
wrongful arrest ought not to be conflated and stressed:
"
The fact of the matter is that the plaintiff's claim in the present action is not
malicious prosecution in which case the plaintiff would have to wait for the
criminal case to run its course. The requirements for a malicious prosecution
claim and the requirements for a claim arising out of wrongful arrest ought not
to be conflated. The plaintiffs claim is thus not assisted by any legal conclusion
that may be reached by the court, setting aside her conviction and sentence.
"

- 40 -




[81] Baqwa J relied on the judgment of Mali AJ in Lawrence Nyiko Nkwinika
v Detective Malapane and Another (19477 /2018) (2015) ZAGPJHC 42
(27 February 2015) who had, in turn had relied on the matter of Marchel
Labuschagne v Minister of Safety and Security (44033/19) [2023]
ZAGPPHC 844 (17 July 2023) to find that the so-called “trigger date” is the
date of the arrest and not the date of the withdrawal of the matter against
the plaintiff
.
[82] In De Klerk v Minister of Police [2019] ZACC 32; 2020 (1) SACR 1 (CC),
the main issue for determination was whether the Minister of Police (was
liable to compensate Mr de Klerk for the entire period of his detention
following his unlawful arrest, including the period following his first
appearance in court.
[83] The Constitutional Court made it clear that where a person was lawfully
arrested his unlawful detention claim arose when the police failed to inform
the magistrate that he was entitled to bail - not at the date of his later
release or acquittal.
[84] In Minister of Police and Another v Yekiso 2019 (2) SA 281 (WCC)
(“Yekiso”) the Full Court of the Western Cape High Court heard an appeal
against the decision of the court a quo to grant condonation for the failure
of the respondent (Mr Yekiso) to timeously serve a section 3(1) notice in
respect of his claims for damages based on unlawful detention and

- 41 -




malicious prosecution. The court a quo had reached a similar finding as
the Court did in Tlake and Makhwelo, namely that the claim for unlawful
arrest, subsequent detention and malicious prosecution was a continuous
transaction which could not be regarded as complete until the outcome of
the criminal prosecution.
[85] The Full Court rejected this contention and found that the plaintiff’s
detention gave rise to a separate cause of action for each day that the
plaintiff had been in detention and distinguished claims for unlawful arrest
and detention from claims for malicious prosecution. Davis J stated:
“[18] In the ordinary course the respondent's claims based on unlawful arrest
in February 2006 prescribed on 21 February 2009 in terms of s 11(d) of the
Prescription Act. Before the court a quo, respondent contended that the claim
for unlawful arrest, subsequent detention and malicious prosecution was a
continuous transaction which could not be regarded as complete until the
outcome of the criminal prosecution.
[19] The court a quo unfortunately erred in finding that the claim for unlawful
arrest and subsequent detention and prosecution was to be treated as one
continuous transaction which could not be regarded as complete until the
outcome of the criminal prosecution. This finding is clearly in conflict with the
approach adopted in Lomba v African National Congress 2002 (5) SA 668
(SCA) para 26 and with the concept of a continuous wrong as set out in
Barnett and Others v Minister of Land Affairs and Others 2007 (6) SA 313
(SCA) (2007 (11) BCLR 1214; [2007] ZASCA 95) para 20:
'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

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 Vereen iging
Town Council 1996 (3) SA 317 (A); Mbuyisa v Minister of Police,
Transkei 1995 (2) SA 362 (TK) (1995 (9) BCLR 1099); Unilever Best
Foods Robertsons (Pty) Ltd and Others v Soomar and Another 2007

- 42 -




(2) SA 347 (SCA) in para [15].'
…
[27] On the basis that the continued detention from 22 February 2006 until 7
October 2011 gave rise to a separate cause of action for each day that he was
so detained, the detention period from 22 February 2006 until 21 July 2011
had also prescribed for the same reasoning as employed in respect of the
unlawful arrest. The proceedings against first appellant commenced when
summons was issued on 21 July 2014 and therefore it would mean that a
period of more than three years had elapsed for the detention period ending
on 21 July 2011. On the same basis a period of more than three years had
elapsed since 1 September 2011 when the respondent served summons on
the second appellant on 1 September 2014.
[28] Accordingly, the respondent has not satisfied the first requirement for
condonation in terms of s 3(4) of the Act, namely that the debt had not been
extinguished by prescription, in respect of his detention until 2 September
2011. The claims based on malicious prosecution and for the detention from 2
September 2011 to 7 October 2011 have not prescribed. This latter situation
requires an examination as to whether respondent has met the requirement of
'good cause'."

[86] In Khanya v The Minister of Police (5458/2014) [2019] ZAFSHC 81 (20
June 2019) Meintjies AJ, applying Lombo and Yekiso, concluded that
“[u]nlawful arrest, subsequent detention and prosecution is not to be
treated as one continuous transaction which is not completed until the
outcome of the criminal prosecution.”
[87] Phala v Minister of Safety and Security 2022 JDR 3007 (FB) (“Phala”),
is one of the cases relied upon by the respondent in their heads of
argument.The plaintiff contended that
his unlawful arrest and detention constituted a continuous wrong. In
support of this contention the plaintiff relied on Tlake and argued that the

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proceedings from arrest to acquittal must be regarded as continuous, and
no personal injury had been done to the accused until the prosecution had
been determined by his discharge.
[88] After dealing with the doctrine of legal precedent, Snellenburg AJ declined
to follow Tlake and Makhwelo as he was of the view that these decisions
were clearly wrong. He pointed out that the plaintiff relied on three distinct
claims, unlawful arrest, unlawful detention following the arrest and
malicious prosecution. He explained at para [43]:
“[43] The court in Tlake was concerned with two separate acts of unlawful
arrest and detention and as stated above, it is not discernible from the
judgment whether the plaintiff relied on unlawful arrest and detention or
malicious arrest, detention and prosecution. The distinction is an important one
as different considerations will apply to unlawful arrest and detention with or
without prosecution [on] the one hand and malicious arrest and detention with
or without prosecution on the other hand as will be dealt with below.
The court in Makhwelo was concerned only with claims for unlawful arrest and
detention but applied the well -established principles regarding prescription in
claims for malicious prosecution to claims for unlawful arrest and detention.
Insofar as the court in Tlake was not concerned with malicious arrest, malicious
detention and malicious prosecution or in the event that the dictum is
susceptible to being interpreted as holding that prescription only commences
to run in the event of a claim for unlawful arrest and d etention when criminal
prosecution is finalised, thus that the unlawful arrest, unlawful detention and
subsequent criminal prosecution is to be treated as one continuous transaction
which cannot be regarded as complete until th e outcome of the criminal
prosecution is known, I am respectfully of the view that the dictum is clearly
wrong.

prosecution is known, I am respectfully of the view that the dictum is clearly
wrong.
I disagree that prescription regarding claims for unlawful arrest and unlawful
detention only commence to run when the criminal prosecution is finalised, as
is the case with a claim for malicious prosecution. Makhwelo and to the extent
that Tlake is capable of being read to endorse the same conclusion as arrived
at in Makhwelo, then it too, depart from the well- established principles relating

- 44 -




to prescription of claims for unlawful arrest and detention.”

[89] Referring to Thompson , Snellenburg AJ said:
“[46] Eksteen J dealt with two distinct claims, one for wrongful or unlawful
arrest and an alternative claim for malicious arrest and detention where a
prosecution ensues. A proper reading of the afore quoted passage clearly
establishes that Eksteen J was not dealing with the claim for wrongful/unlawful
arrest when he said, 'the proceeding from arrest to acquittal must be regarded
as continuous, and no action for personal injury done to the accused person
will arise until the prosecution has been determined by his discharge'. Eksteen
J was concerned with the claim for malicious arrest and detention from which
a prosecution ensued which the learned Judge held would in his view be
subject to the same principles that govern a claim for malicious prosecution,
ergo the claim in such an instance only arises when the prosecution has been
finalised in the plaintiff's favour or the prosecution has been withdrawn.
[47] The quoted passage clearly distinguishes between a claim for
wrongful/unlawful arrest and malicious arrest and detention from which
prosecution ensues. As aptly stated by Eksteen J, in the case of a claim for
unlawful arrest the delict is committed by the illegal arrest of the plaintiff without
the due process of the law. Therefore, improper motive or want of reasonable
and probable cause that would be required for malicious arrest have no legal
relevance to the cause of action. It is legally irrelevant whether any prosecution
ensues subsequent to the arrest or if it does, what the outcome of that
prosecution is. The injury lies in the arrest without legal justification, and the
cause of action arises as soon as that illegal arrest has been made.
…
Unlawful arrest and detention involve constraints on personal liberty where the
wrongdoer's legal liability exists even in the absence of his appreciation of the
wrongful nature of his injurious act.”

wrongful nature of his injurious act.”
[90] Slellenburg AJ also made reference to the decision of the Constitutional
Court in Mahlangu and Another v Minister of Police (CCT 88/20) [2021]
ZACC 10 (“Mahlangu”) that emphasised that the “prism through which
liability for unlawful arrest and detention should be considered is the
constitutional right guaranteed in s 12(1), not to be arbitrarily deprived of

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freedom and security of the person” which rights together with the right to
human dignity are fundamental rights entrenched in the Bill of Rights. The
Constitutional Court confirmed:
“
It follows that in a claim based on the interference with the constitutional right
not to be deprived of one's physical liberty, all at the plaintiff has to establish is
that an interference has occurred. Once this has been established, the
deprivation is prima facie unlawful. The defendant bears the onus to prove
justification for the interference.”
[91] Snellenburg AJ went on to state:
“[53] It is not necessary that a person must be convicted of the offence he was
arrested for in order for the arrest to have been lawful. The eventual acquittal
or conviction by itself does not prove that an arrest was lawful or unlawful nor
would it prove that detention following the arrest was lawful or unlawful. The
lawfulness or unlawfulness of an arrest does not by implication render
subsequent detention lawful or unlawful.
[54] Whilst arrest is frequently followed by detention, wrongful detention need
not be preceded by any arrest.
[55] A claim for wrongful arrest and detention 'seeks to compensate a claimant
for the infringement of different interests of personality, namely the restriction
of his or her physical freedom of movement and also impairment of his or her
subjective feelings of dignity or self-respect'.
…
[59] Unlawful arrest, subsequent detention and prosecution is not to be treated
as one continuous transaction which is not completed until the outcome of the
criminal prosecution.”
[92] Referring to the decision of Baqwa J in du Plessis, Snellenburg AJ
associated himself with Baqwa’s findings and said:

- 46 -




“[65] Baqwa J was, amongst others, called upon to consider the judgment of
Spilg J in Makhwelo, the lastmentioned case which was also referred to, as
stated above, in Tlake in support of the conclusion reached by the Court. At
para 17 the Court held, with reference to Thompson, that regarding the cause
of action based on unlawful arrest, prescription begins to run as soon as the
illegal arrest has been made.”

[93] With regard to Unilever , Snellenburg AJ opined:
“[73] Unilever does not establish nor is it authority for the proposition that with
claims for unlawful arrest and unlawful detention, the 'proceedings from arrest
to acquittal must be regarded as continuous, and no personal injury has been
done to the accused until the prosecution has been determined by his
discharge'.”
[74] For sake of clarity and as should be apparent from discussion above, the
finding in Mofokeng and Others v The Minister of Police and Another that a
claim for detention arises only on release is wrong.” [ The case referred to is
Mofokeng v Minister Of Police (A2023/009958) [2023] ZAGPJHC 1052 (15
September 2023)]
[94] Snellenburg AJ stressed the distinction between claims for unlawful arrest
and detention and malicious arrest and detention and stated:

“[70](sic) It is important to bear in mind that the present matter is concerned
with unlawful arrest and detention, and not malicious arrest and detention. It
is therefore important to ensure that traces of the latter cause of action not
seep into the former.”

[95] He then went on to explain the difference of the situation when the claim is
one for malicious prosecution with reference to Thompson and Holden
and held:
“[76] Prescription with regards to a claim for malicious prosecution commences
to run only when the criminal proceedings or, as held in Holden supra,
proceedings before statutorily created professional tribunals, are finalised in

- 47 -




his/her favour.”
[96] Snellengurg AJ concluded that prescription would ordinarily commence to
run in unlawful arrest cases, immediately after his arrest and in unlawful
detention cases on each day of his detention which gives rise to a separate
cause of action. It was explained thus:
“[77] Prescription will ordinarily therefore commence to run as follows:
77.1 Unlawful arrest, immediately after the arrest has been effected (the
unlawful arrest constituting the so called trigger-event);
77.2 Unlawful detention, each day of detention gives rise to a separate
claim with prescription running in respect of each respective day.
[78] Significantly, the onus to justify the interference with the liberty of the
plaintiff in the case of unlawful arrest and detention rests on the defendant. As
stated above, all that the plaintiff has to establish is that an interference has
occurred and once this has been established, the deprivation is prima facie
unlawful.”
The requirement of knowledge-the date that the claimant consulted his legal
representatives
[97] The kernel of the appellant’s argument and the authorities cited were
based upon Section 3(3) of the Institution of Legal Proceedings Act, which,
like that of section 12(3) of the Prescription Act, stipulates that for a debt
to be regarded as due, the creditor must have knowledge of the identity of
the organ of state and of the facts giving rise to the debt.

- 48 -




[98] It was argued that the appellant did not acquire the required knowledge
that he had a claim for damages for unlawful arrest and detention until after
he had consulted with his attorney during May 2018; this is the date, so it
was argued, that the six-month period began to run within which the
appellant was required to serve the required 3(1) notice on the respondent-
not 11 December 2017 when he was told the charges against him were
withdrawn nor November 2017 when he was released on bail.
[99] The appellant referred us to a number of cases in support of their assertion
that the appellant could not have acquired knowledge of his claim before
he consulted his attorney. The first was Sello v Minister of Police N.O
and Another (89077/16) [2022] ZAGPPHC 233 (13 April 2022) where the
court held that a debt is due when it is immediately claimable by the creditor
and immediately payable by the debtor. Accordingly, it was held that the
debt became claimable by the applicant on the date of his release from
incarceration on 15 October 2015. However, the complete cause of action
as defined in Truter was only established after consultation with his
attorneys on 6 June 2017; although the right to claim the amounts arose
the day after his release from incarceration, in absence of any knowledge
of the identity of the respondents, the applicant's rights in law only became
enforceable on 6 June 2017.
[100] The second case we were referred to was Diko v MEC for Health
(583/2018) [2022] ZAECBHC 11 (22 March 2022) heard in the Eastern

- 49 -




Cape Local Division that involved a medical negligence claim. The plaintiff
claimed that he only became aware of the facts giving rise to the debt when
he consulted his attorney on 12 June 2018 and after receipt of the medical
report from a specialist.
[101] It was held at para [19] that:
“In the context of a medical negligence claim, the meaning of the phrase
‘knowledge of the facts from which the debt arises’ includes knowledge of
facts showing that the defendant, in treating the plaintiff, failed to adhere to
the standards of skill and diligence expected of the practitioner in the former’s
position.”
[102] The court followed the reasoning of the Constitutional Court in Links v the
Department of Health, Northern Province 2016 (4) SA 414 (CC) and
concluded on the facts before the court at para [84]:
“But even assuming I must accept that he was told that there had been “a
problem” with the fixation, what about this information or knowledge on his part
would have been an indication for him that the staff may have been negligent
in carrying out the proced ure. Also, the fact of his complications, as obvious
as they may have been to him, would not have suggested to him that the
treatment administered to him was incorrect or inadequate and most certainly
not that the hospital had used a wrong pin that is contraindicated in orthopedic
practice. His situation is similar in my view to Links in which the court held that
that plaintiff could not reasonably have known, without seeking the opinion of
a specialist, that the care administered to him was substandard. The same
applies to the other indications that all was not well with his leg. He could not
reasonably have gleaned on his own that a wrong pin had been inserted and
inadequately at that, neither would these manifestation on their own have
caused him to make enquiries along the line whether the staff might possibly
have been negligent in carrying out the procedure.”

have been negligent in carrying out the procedure.”

[103] On appeal ([2023] ZAECBHC 29 (15 September 2023)) the full bench
adopted the approach taken by the trial court and found that:

- 50 -




“[21] Practically speaking, and drawing from his particulars of claim, the
questions to be asked are whether Mr Diko knew that the wrong nail had been
utilised or that the surgical procedure was defective, or that other
‘advantageous and less damaging treatment options’ had not been properly
investigated. While it was unnecessary for him to know, conclusively, that there
had been such errors, he was required to have ‘knowledge of’ sufficient facts
of the treatment administered to reasonably have placed him in a position to
form a ‘belief’, and to investigate the matter further.
…
[24] The requirement ‘exercising reasonable care’, in the s 12(3) proviso,
requires ‘diligence not only in the ascertainment of the facts underlying the
debt, but also in relation to the evaluation and significance of those facts’. Mr
Diko is deemed to have the requisite knowledge, so that the debt is due, at the
point that a reasonable person in his position would have deduced the identity
of the debtor and the facts from which the debt arose.”
[104] The full court concluded at [34] to [36] that even exercising reasonable care
the respondent could not have been expected to have realised he had a
claim for medical negligence, particularly as he was a person without
medical knowledge.
[105] The third case referred to was Member of the Executive Council for
Education, KwaZulu-Natal v Shange [2013] JOL 30039 (SCA) in which
the Supreme Court of Appeal accepted that the respondent became aware
of his claim on 18 January 2006, the date of the first consultation with his
attorney.
[106] Finally, we were referred to Makhwelo in which the Supreme Court of
Appeal stated:
"
As to the first requirement of knowledge of the material facts: It is difficult to

- 51 -




appreciate that at the time of the arrest or even during detention the suspect
would have sight of the docket in order to form a view that the arresting officer
did not have reasonable suspicion that an offence had been committed
."
[107] However, the Supreme Court of Appeal made it plain that a debt becomes
due when the creditor has knowledge of the minimum facts necessary to
institute the action, even if the full extent of the damage is still unknown-
ie. how long the person had been incarcerated. It was held that:
“
In a delictual claim … the cause of action is complete when the wrongful act
or omission has occurred, the wrongdoer is identified, and the resultant
damage is suffered.”
[108] In addition, at 175 B Van Heerden JA stated that:
“…Section 12(3) of the Act requires knowledge only of the material facts from
which the debt arises for the prescriptive period to begin running-it does not
require knowledge of the relevant legal conclusions (i.e. that the known facts
constitute negligence) …”
[109] Similarly, in Mohlomi v Minister of Defence 1997 (1) SA 124 (CC), it was
made clear that only the material facts giving rise to the claim need be
known for the purpose of determining the date upon which prescription
would begin running against the claimant, not the final quantum. This puts
paid to the argument that the cause of action for unlawful detention does
not arise until the plaintiff released from detention as this was only when
he would have been aware of the number of days he was in confinement
and thus be able to ascertain the quantum of his damages.

- 52 -




[110] Moreover, in Kruger v National Director of Public Prosecutions [2018]
ZACC 13 Froneman J, for the majority of the Constitutional Court, made it
plain that it is only the relevant facta probanda and not the evidence (facta
probantia) that need be known to a creditor for prescription to begin to run
against the creditor. Commenting on the minority judgment of Zondo J,
Froneman J stated:
“[78] I have had the benefit of reading the judgment of Zondo DCJ (first
judgment), but I cannot agree with its reasoning and outcome. The reason is
that the first judgment conflates what must be proved to establish a claim for
malicious prosecution with the evi dence that proves those facts. To prove
malicious prosecution, the plaintiff here needed to establish only (a) lack of
reasonable and probable cause and (b) intent to injure (animus
injuriandi). Only these two facts are relevant to this case as they are “the facts
from which the debt arises”. Of these only, a creditor needs to have knowledge
for prescription to start running in terms of section 12(3). A plaintiff does not
need to know the further facts that establish the absence of reasonable
probable cause and intent to injure.”
[111] Froneman J made it plain that lack of reasonable and probable cause with
intent to injure may be inferred from the fact that the charges were
dismissed but stressed that this was a question of fact in every case. He
disagreed that lack of reasonable and probable cause only arose once the
claimant had sight of the docket and explained:
“[79] Lack of reasonable and probable cause and intent to injure will almost
invariably have to be proved by inference from other, secondary, facts. This
will be done by assessing whether the facts presented in evidence lead to the
probable conclusion that the prosecution took place without reasonable and
probable cause and with intent to injure. The factual evidence that, taken
together, proves the absence of reasonable and probable cause plus animus

together, proves the absence of reasonable and probable cause plus animus
injuriandi will vary from case to case. It is impossible to state a general legal
rule by which factual evidence is necessary as proof of these ultimate legal
requirements.

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[80] It is not clear to me whether the first judgment purports to lay down a legal
rule that in all debts arising from delictual claims based on malicious
prosecution, prescription starts to run only when a claimant has knowledge of
the contents of the police docket. That would be a disquieting departure from
the clear conceptual logic of the precedents in this area. For the reason stated
above – that the evidence to prove lack of reasonable and probable cause and
intent to injure will vary from case to c ase – a legal rule to that effect cannot
and should not be posited.
[81] Did Mr Kruger’s claim prescribe? The only question to ask is whether the
facts known to him on the day the charge was withdrawn were sufficient to
ground the likely inference that there was no reasonable and probable cause
for his prosecution and that his prosecution proceeded with intent to injure on
the part of the public prosecutor.
[82] Asking this question does not entail propounding a legal precept. It simply
involves employing “a rule of logic, an instrument for the avoidance of
fallacious inference.” Asking whether Mr Kruger knew enough on the day the
charge against him was withdraw n to infer that, probably, he could sue for
malicious prosecution is a question of fact. It is akin to enquiring whether the
factual conclusion reached by the High Court is correct. It is the kind of issue
this Court generally eschews enquiring into.”

[112] In Mtokonya v Minister of Police 2018 (5) SA 22 (CC) (“Mtonkonya”) the
legal question faced by the Constitutional Court was whether a creditor
was required to have knowledge that the conduct of the debtor giving rise
to the debt was wrongful and actionable before prescription could start
running. The majority held that s 12(3) does not require, before a debt can
be said to be due or before prescription can start running, that the creditor
must know that the conduct of the debtor giving rise to the debt is wrongful

must know that the conduct of the debtor giving rise to the debt is wrongful
and actionable as that is a legal conclusion and not a fact.
[113] Zondo J (as he then was) stated that:
“[36] Section12(3) does not require the creditor to have knowledge of any right

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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”.
[114] Zondo J (as he then was) explained:
“Whether the police’s conduct against the applicant was wrongful and
actionable is not a matter capable of proof. In my view, therefore, what the
applicant said he did not know about the conduct of the police, namely,
whether their conduct against him was wrongful and actionable was not a fact
and, therefore, falls outside of section 12(3). It is rather a conclusion of law.”

[115] In this regard Zondo J warned that were this not so, prescription would
hardly ever run against a claimant. He opined:
"Furthermore, to say that the meaning of the phrase '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."
[116] In the Minister of Police v Zamani (CA 10/2021) [2021] ZAECBHC 41;
2023 (5) SA 263 (ECB) (12 October 2021) Van Zyl DJP criticised
Makhwelo which it was found was contrary to Mtokonya and stated that:
“[27] The decision in Makhwelo is also in conflict with the judgement of the
Constitutional Court Mtokonya. In Mtokonya the Court dealt with a case of

Constitutional Court Mtokonya. In Mtokonya the Court dealt with a case of
unlawful arrest and detention. The case was “about whether section 12(3) of
the Prescription Act requires a creditor to have knowledge that the conduct of
the debtor giving rise to the debt is wrongful and actionable before prescription
may start running against the creditor”. The Court concluded that section
12(3) does not require knowledge of legal conclusions or the availability in law
of a remedy. “Whether the police’s conduct against the applicant was wrongful

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and actionable is not a matter capable of proof. In my view, therefore, what the
applicant said he did not know about the conduct of the police, namely whether
their conduct against him was wrongful and actionable, was not a fact and,
therefore, falls outs ide of s 12(3). It is rather a conclusion of law,” and
“[k]nowledge that the conduct of the debtor is wrongful and actionable is
knowledge of a legal conclusion and is not knowledge of a fact. Therefore,
such knowledge falls outside the phrase ‘knowledge … of the facts from which
the debt arises’ in s 12(3). The facts from which a debt arises are facts of the
incident or transaction in question which, if proved, would mean that in law the
debtor is liable to the creditor.” The finding in Gore that the running of
prescription is not delayed until a creditor is aware of the full extent of his legal
rights, is consistent with the “well known principle in our law that ignorance of
the law is no excuse. A person cannot be heard to say that he did not know
his rights.”

[117] More recently in Manchu v Minister of Police and others [2024] ZAGP
JHC 536 (3 May 2024) (“Manchu”) the court went even further. The plaintiff
appealed his conviction and sentence which was set aside on 29 January
2019, on which date he was released from prison. He alleged he only
became aware of the identity of the defendant and the facts giving rise to
the debt when he consulted his attorney during 2019.

[118] Mathopo AJ considered the question when prescription begins to run for
the alleged unlawful arrest and detention and in particularly whether they
should be considered to be a continuous wrong. It was explained:
“
[26.] The plaintiff's argument appears to be that their claim for unlawful arrest
and subsequent detention should be considered as a continuous transaction,
not complete until the outcome of their criminal prosecution, which resulted in
the setting aside of his conviction and sentence. The contention is that his

the setting aside of his conviction and sentence. The contention is that his
arrest and detention, though separate legal processes, are interconnected and
should be viewed as part of a single ongoing wrong.

- 56 -




[27.] However, this position is in contrast to the established principles that there
is a distinction between a single completed wrongful act and a continuous
wrong in the course of being committed. While a single wrongful act may give
rise to a single debt, a continuous wrong is seen as generating a series of
debts arising moment by moment as long as the wrongful conduct persists.
[28.] In this context, the courts indicate that an unlawful arrest is not inherently
a continuing wrong, nor is it necessarily linked to any subsequent unlawful
detention. Arrest and detention represent a separate and distinct legal
process. While both involve the deprivation of an individual's liberty, this
shared outcome does not merge them into a single legal process. Each may
be considered a distinct cause of action, with its own legal implications and
limitations. Thus, in a case of unlawful arrest an d detention, the debt arises
from the moment of his arrest and each day in detention constitutes a new debt
as long as the wrongful conduct endures.
[29.] This reinforces that the plaintiff's claim should be analysed as based on
separate causes of action, rather than as a single continuous transaction.”
[119] Mathopo AJ stressed that for the claimant’s arrest and detention to be
considered as a continuing wrong until the conclusion of the criminal
proceedings he would have had to have pleaded the elements necessary
for malice and lack of reasonable and probable cause, but he pleaded his
case for unlawful arrest and detention separately from his claim for
malicious prosecution.
[120] Mathopo AJ then went on to analyse the plaintiff’s defences based on
Section 12(3) of the Prescription Act and stated:
[38.] Notably, section 12(3) does not mandate that the creditor must be
cognizant of the debtor's actions being wrongful and legally actionable before
the debt can be considered due or before prescription can commence. This

the debt can be considered due or before prescription can commence. This
distinction is crucial as it pertains to legal interpretations or conclusions rather
than factual awareness.”

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[121] After citing Mtokonya, MEC for Health, Western Cape v M C
(1087/2019) [2020] ZASCA 165 (10 December 2020) , Le Roux and
Another v Johannes G Coetzee and Seuns and Another 2024 (4) BCLR
522 (CC) at para 40] and Drennan Maud & Partners v Pennington Town
Board [1998] ZASCA 29; 1998 (3) SA 200 (SCA) at 209F-G] it was stated
that:
“[42.] In matters of unlawful arrest and detention, the relevant material facts to
be considered from a creditor's pleaded claim include the acts or omissions
that pertain to wrongfulness or unlawfulness. It is not necessary for the
creditor to know that these ma terial facts legally support a conclusion of
wrongfulness or unlawfulness; it is enough to have actual or deemed
objective awareness of facts that could be characterized as wrongful or
unlawful. The legal consequences must be derived from these fact s.
Therefore, the prescription period is not delayed until the creditor fully
appreciates the extent of their rights. To hold otherwise would undermine the
purpose of the Prescription Act, which aims to protect litigants from delays
caused by litigants who do not enforce their rights promptly.”
[122] In conclusion to the special plea of prescription, the court stated:
[50.] For the aforementioned reasons, I am satisfied that the plaintiff knew the
identity of the defendants and the facts from which the debt arose on 10
September 2014, regarding the arrest and each day of his continued detention.
…
[53.] The plaintiff's claim for unlawful detention arose on 10 September 2014,
as he was detained from his arrest until his release on 29 January 2019.
[54.] Since each day of detention constitutes a new and separate debt for the
purposes of section 11(d) of the Prescription Act, the unlawful detention prior
to 21 January 2018, three years before the service of summons on 20 January
2021, is extinguished by prescription. However, the plaintiff's claim for unlawful
detention from 21 January 2018 onwards has not been prescribed.

detention from 21 January 2018 onwards has not been prescribed.
[55.] I therefore find that the defendants' special plea regarding the

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prescription of the plaintiff’s unlawful detention before 21 January 2018 is
upheld.
[123] The court then explained the purpose of section 3 of the Institution of Legal
Proceedings Act and made it clear that where this was served beyond the
stipulated six-month period, he could not assist the plaintiff unless he had
brought a formal application for condonation; an application from the Bar
by counsel was not sufficient. It was said:
“[
56.] The primary purpose of a section 3(1) notice under the Institution of Legal
Proceedings Act is expediency, enabling the relevant organ of state to conduct
thorough investigations into the claim. This process allows the organ of state
to decide whether to settle the claim or contest the proposed legal action.
…
[63.] Compliance with the provisions of section 3(2) of the Institution of Legal
Proceedings Act is statutory, and applying to a court for condonation requires
a formal application supported by an affidavit. Section 3(4) specifies that the
court must be satisfied that the three requirements under section 3(4) are met
before it can exercise discretion to condone.
[64.]...
[65.] In cases involving statutory time frames, non -compliance is a
jurisdictional issue that must be resolved before the court can consider the
dispute. If statutory provisions are not followed, the court lacks jurisdiction
unless condonation is granted, making an application for condonation
mandatory unless otherwise specified. Without such an application, the court
cannot assist a party. [emphasis added]
[66.] Since the defendants' plea was served around 20 April 2021, the plaintiff
has failed to apply for condonation under section 3(4) of the Institution of Legal
Proceedings Act, and no such formal application is before this court. The
request for condonation i s therefore made from the bar, without any
satisfactory explanation of good cause or assurance that the defendants would
not be unreasonably prejudiced.

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[67.] Therefore, in light of the above, it is found that, having failed to apply for
condonation under the provisions of the Institution of Legal Proceedings Act,
this court is neither invited to be satisfied nor able to exercise its discretion to
condone the non-compliance.
[68.]The special plea regarding non -compliance with the Institution of Legal
Proceedings Act concerning the unlawful arrest and unlawful detention (for
debts prior to 20 December 2018) is upheld.”
Deemed knowledge and reasonable care
[124] This brings me to the next aspect of knowledge and that is the question of
deemed knowledge. It is not sufficient that the appellant in fact only had
knowledge of his claim after consulting his attorney (who then gained
access to the docket) as it is sufficient for the purposes of prescription and
serving a section 3(1) notice that the appellant could reasonably have
acquired the required knowledge had he exercised reasonable care.
[125] This was an issue considered in the Northwest Provincial Division of the
High Court, Mahikeng in Aphindile v Minister of Police (573/021) [2024]
ZANWHC 16 (25 January 2024) (“Aphindile ”). The court considered
whether prescription only begins to run from the date upon which the
plaintiff acquired knowledge of his cause of action and whether such
knowledge could only be gleaned following a legal consultation.
[126] The Applicant averred that on or about 28 March 2017, he was unlawfully
arrested and detained by members of the SAPS employment. Further, he
stated that he was arrested and detained on allegations of murder which

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were unfounded and not true. He insisted that that he was not aware that
he had a civil claim against the organ of the state and only became aware
of the requirements of section 3 of the Institution of Legal Proceedings Act
on 23 January 2019, when he consulted with his attorney of record.

[127] Moagi AJ found that the applicant could have acquired knowledge of his
claim by the exercise of reasonable care upon his release on bail:
“[29] Even if it can be argued that the Applicant did not have knowledge of the
debtor, which is not the contention raised on behalf of the Applicant, I am
convinced that he could have acquired such knowledge, by exercising
reasonable care to establish the peopl e who arrested him upon his release
on bail, on 17 August 2017, and not after his charges were withdrawn.”
[128] Moagi AJ held that the applicant’s contention that he only became aware
of the unlawfulness of his arrest when he received a section 174 discharge
was a misdirection of the law of prescription and was contrary to
Mtokonya:
“[
32] Having regard to the majority decision in Mtokonya, in my view, the
Applicant’s contention, that he only became aware of the unlawfulness of the
arrest when he was discharged in terms of section 174 of the CPA on 21 May
2018, is a conclusion of law and not what section 12(3) of the Prescription Act
contemplated.
…
[34] The contention that the Applicant had no facts to rely on at the time of his
arrest, detention and subsequent malicious prosecution, and that such facts
could only be established if not found guilty, is a misdirection of the law of
prescription.”

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[129] Referring to Thompson and its finding that the arrest and acquittal must
be regarded as one continuous action the court commented:
“[36] The facts in the present matter are distinguishable from those
in Thompson and another v Minister of Police (supra) and case law relied on
by Counsel for the Applicant in the heads of argument.
[37] I am not persuaded from the merits of this case that the unlawful arrest,
detention and the subsequent malicious prosecution should be treated as one
continuous transaction which is not completed until the outcome of the criminal
prosecution. It should be noted that the Applicant limited his claim to unlawful
arrest, detention and loss of income. There is no claim instituted by the
Applicant for malicious arrest and/or malicious prosecution against the
National Director of Public Prosecutions.”
[130] In dealing with the facts the court stated:
“[41]In the context of the claim in the present matter, the Applicant was not
required to conclusively know that the arrest and detention was unlawful but
rather, to know, sufficient facts which would reasonably have placed him in a
position to form the belief that the arrest and detention was without justification.
…
[42] In considering the available evidence in totality, it can be said that the
Applicant could have acquired knowledge of the debtor and required facts
immediately after his arrest and detention, alternatively immediately after he
was released from detention.
[43] In applying the objective standard, of a reasonable person in his position,
the Applicant failed to institute action timeously, caused by inaction and not an
inability to obtain knowledge of the identity of the debtor and the facts
timeously. I find that the Applicant’s claim has prescribed.
[44] There is no evidence which was presented before this court to
demonstrate that the Applicant was prevented from giving instructions to an
attorney to institute proceedings on his behalf. The fact that the Applicant may

attorney to institute proceedings on his behalf. The fact that the Applicant may
not have known what his legal rights were, did not delay the running of
prescription. Section 12(3) of the Prescription Act does not require the creditor
to have knowledge of any right to sue the debtor.

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[45] The need for a cut-off point beyond which a person who has a civil claim
to pursue against an organ of state, has been stated clearly by the
Constitutional Court in Road Accident Fund and Another v Mdeyide (CCT
10/10) [2010] ZACC 18; 2011 (1) BCLR 1 (CC); 2011 (2) SA 26 (CC) (30
September 2010).
[46] I find that the Applicant’s claim has prescribed, in the circumstance, it will
serve no purpose to deal with the other requirements of section 3(4)(b) of Act
40 of 2022 listed above.”
[131] In Manchu the plaintiff was legally represented during his detention the at
the criminal trial and appeal, with the mandate, in his own words, “ to get
him out of prison and custody ”. However, he insisted that he never
discussed the institution of a civil claim against the defendants with his
legal representatives at the time. He claimed that following his release,
around February 2019, he was advised by his friend’s girlfriend to seek
legal assistance for a civil claim. He thereafter consulted with his attorney
and gained knowledge of his right to sue.
[132] Mathopo AJ considered the question of deemed knowledge and held that
even if the plaintiff did not have actual knowledge, he could have acquired
such knowledge by exercising reasonable care. Moreover, unless it could
be established that he was wilfully prevented from acquiring the required
knowledge, he must be deemed to have had the required knowledge prior
to his release from detention:
“[46.] The plaintiff states that he was first legally represented from his second
court appearance. He had legal representation throughout the criminal trial and
his detention, with the primary mandate on his version being to secure his
release from prison. He was also represented by Legal Aid South Africa during
his appeal.

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[47.] The plaintiff's incarceration did not prevent him from instructing an
attorney to investigate or initiate a civil claim. He does not claim that he was
denied access to legal representation or hindered by any superior force as
outlined in section 13(1)(a) of the Prescription Act.
[48.] At most, the Plaintiff was unaware that he had a legal remedy against the
defendants throughout his arrest and detention. However, his lack of
knowledge regarding the right to claim, the cause of action, or the appreciation
of wrongfulness constitutes a legal conclusion, not the material facts required
to support it.
[49.] In respect of his actual knowledge, the plaintiff averred that he had no
knowledge of who the defendants would be. Objectively, a reasonable person
in the plaintiff position would have deemed knowledge of the identity of debtors
as police officials and the facts, including the acts and/or omissions from which
the debts arose. There is no evidence that he could not have acquired such
knowledge by exercising reasonable care.”
[133] The question of deemed knowledge was also considered in the recent
case of Kutoane v Minister of Police and Others (17387/19) [2024]
ZAGPJHC 529 (31 May 2024) . Van Tonder AJ, sitting in this division
expressed the view that an innocently arrested and detained person must
of necessity be aware or deemed to be aware of the unlawfulness of his
arrest and detention at the moment of his arrest and detention. It was
stated in relevant part:
“[71] A compliant notice of “the debt” hinges on the principle stated in the latter
part of section 3(3)(a) of the Act that “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”.
[72] It is evident from the essence of section 3, that the question of timeous

[72] It is evident from the essence of section 3, that the question of timeous
compliance hinges on the moment in time when a “debt may… be regarded as
being due”, and in turn on proof of the moment of actual or deemed knowledge
of “the facts giving rise to the debt”, and of the identity of the relevant organ of
state as debtor. By when would a creditor with reasonable care have had “such
knowledge”? The extent of knowledge recorded in the notice is that which has
to be tested against “reasonable care”. How can an innocently arrested person

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escape the simple presumption that knowledge of innocence is virtually
immediate upon being arrested? Is it not so that, generally speaking, all that
remains is an explanation as to why such knowledge could not have been
acted on?
[73] If that what is postulated above is correct, then it narrows down the risk
embedded in contending for wide discretion that can be tested over and again.
It should serve as a narrow guideline for what has to be alleged and
established in order to satisfy a court in respect of the knowledge and
prevention features.”
[134] The court stressed that Kutoane’s belief in his innocence was all that was
required for him to know that his arrest and detention was unlawful, from
which date he had six-months to provide the required section 3(1)
notice:
“[
74] Kutoane alleges that it is common cause that the impugned notice was
served on the offices of the National Commissioner of the South African Police
Service on 10 September 2018, being a period of 68 days after acquittal. This,
however, was more than two years after his initial stated indignance at being
arrested and detained innocently, which, even if providing different debts or
causes of action, are based on the same simple set of facts. The extent of the
debt might increase over time, but the initial “debt” is immediate. [emphasis
added]
[75] Kutoane alleges that immediately after his acquittal, he approached his
current attorney to assist him with the institution of the main proceedings
against the Respondents.
[76] Kutoane alleges he could not have instructed his attorneys to proceed to
institute any legal proceedings against the 1 st and 2nd Respondents for the
logical reason that he was still being prosecuted, and in order to avoid
piecemeal litigation against the two state entities. Could any of this ever be a
reasonable explanation in order to establish good cause?
[77] Kutoane argues he did not have to give notice within six months after his

[77] Kutoane argues he did not have to give notice within six months after his
arrest, namely by latest 15 November 2016, in respect of the wrongful and
unlawful arrest, and in the alternative that he could not have been expected,
whilst exercising his constitutional right to defend any criminal charge brought
by the 1
st and 2nd Respondents, also to give notice of his intention to institute
legal proceedings against the same organs of the state. Is it a matter of either

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or? Clearly not. The Act requires action in the form of a “notice” once the basic
facts are known. It does not contemplate the luxury of wait and see if some
other, different or better position in relation to the basic facts evolve. One such
fact is belief of innocence by applicants such as Kutoane, which stands
unrelated to the outcome of any consequential or ancillary legal conclusion
thereof.”
[135] Kutoane argued that if his section 3(1) notice was late, then he was
entitled to apply for condonation. In dealing with his condonation
application, the court pointed out good cause for condonation required
Kutoane proving a reasonable explanation for not timeously filing his
notice, which then required considering whether his lack of knowledge was
reasonable. If not reasonable, the court stressed that the only basis for
condonation would be evidence that the respondent had wilfully deprived
him of acquiring knowledge of his rights or prevented him from providing
the required notice. The court adopted a strict approach and stated all that
is required is to have knowledge of the facts; a claimant need to have
knowledge of damages; proclaimed innocence is all that is required to have
knowledge of the necessary facts to pursue a claim for unlawful arrest and
detention:
“[83] Kutoane submits that the claim against the 1 st and 2nd Respondents did
not prescribe on 15 May 2019, being three years after his arrest, but rather
only three years after 2 July 2018, when he was acquitted.
…
[86] After sifting through volumes of paper in this matter, the core contention,
or “pith” of it, is the allegation by Kutoane that he suffered damages after he
was (according to him) innocently arrested on 15 May 2016 and detained for
747 days. But he did nothing about it until long after his release, when he gave
notice to the organs of state.

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[87] Such notice had to inform the organs of state, as alleged debtor, of “(i) the
facts giving rise to [a] debt; and (ii) such particulars of such debt as are within
the knowledge of the creditor” in terms of section 3(2)(b) of the Act. Such
“debt” relates to that “for which an organ of state is liable for payment of
damages” [emphasis added].
[88] The wording of 3(2)(b)(ii) indicates that it is not necessary for a creditor to
have knowledge of all facts in support of the debt/damages, only such
particulars of which the creditor has knowledge – some basic initial knowledge
is enough, more about this aspect below. However, the first day of not being
able to work, or earn money upon being arrested innocently, is sufficient
knowledge of the facts to comply with 3(2)(b)(ii). It is significant though that,
contrary to the first leg in section 3(2)(b)(i), the second leg in section 3(2)(b)(ii)
(“such particulars of such debt as are within the knowledge of the creditor”) is
not part of the definition of when a debt becomes “due”. This distinction is
highly relevant to avoid confusion about the requirement for “due”. It requires
knowledge of the “facts”, not knowledge of “damages”.
[136] The Court stressed that a strict approach was required to prevent the
floodgates being opened to any claimant to wait until his acquittal before
instituting a claim for unlawful arrest and detention ; a fortiori when it is
alleged that the claimant did not have knowledge of his claim until he
consulted his attorney after his release from prison:
“[89] As alluded to above, facts similar to this matter provokes the floodgates
to be opened for every criminally accused person that ultimately gets
acquitted, by waiting until after acquittal before proclaiming that damages
resulted from the alleged innocent prosecution, arrest and detention.
Proclaimed innocence being the kernel fact in each such case, it stands to
reason that such a person has full knowledge of the damage -causing event

reason that such a person has full knowledge of the damage -causing event
(“facts giving rise to the debt”) shortly after arrest or detention longer than 48
hours (see section 50 to 60 of the Criminal Procedure Act, 51 of 1977). On
ordinary probability the “facts giving rise to the debt” would be within the
knowledge of the innocent criminally accused at an early stage. Those are the
same facts that are required to be put forward in the prerequisite notice.
…
[94] Kutoane alleged in par 5.5 of his founding affidavit that he could not have
instructed his attorneys to proceed to institute any legal proceedings against
the 1
st and 2 nd Respondents for the logical reason that he was still being

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prosecuted, and in order to avoid piecemeal litigation against the two state
entities. The latter aspect ignores that the giving of a notice does not constitute
litigation, nor does it preclude a subsequent notice or the option to simply not
proceed in terms of the notice.
…
[96] Kutoane’s reference to “piecemeal litigation” is unrelated to or at the very
least does not fully engage with the prevention principle despite the provisions
of section 3 of the Act. It appears to be merely relying on alleged convenience
or inconvenience.
[97] The former basis, namely that Kutoane could not have instructed his
attorneys, has not been substantiated by any level of detail, but in any event it
is contradicted by the undisputed fact that Kutoane had the benefit of legal
representation long before his acquittal. It begs the question whether the right
to instruct an attorney prior to giving notice of the requisite knowledge would
ever be a reasonable explanation, absent facts that establish failed attempts
to give a notice without the help of an attorney. If absurdly such reasoning were
to be given traction, it could equally serve a plaintiff to escape the effect of
prescription or compliance with almost any obligation, by simply resorting to
the prior need for legal advice.
…
[103] Still pursuing the objective to provide legal certainty in the context of
similar applications, it remains significant that the phrase “the facts giving rise
to [a] debt” is repeated in two different contexts of section 3 of the Act: (i) it
instructs the required contents of the notice to be given, and (ii) it defines when
a debt of an organ of state becomes due. In short, the requisite notice must
“set out” the exact facts required for a debt to become due, being in turn the
moment when prescription is deemed to commence, or “regarded” as being
due. The notice, once given, represents the creditor’s own version of what he
is required to know in order to interrupt prescription.

is required to know in order to interrupt prescription.
[104] In cases like the present, the wording in the belated notice ultimately
given by the creditor, for which condonation is applied, should serve as major
guide to determine if “good cause” exists for not having relied on such
knowledge earlier or timeously. A fter all, it is the creditor’s self -proclaimed
innocence that constitutes the starting point of the requisite knowledge. Once
arrested, all the requisite facts are known. An applicant would have to explain
(i) when each aspect of the knowledge first came to it, (ii) that the knowledge
in the notice was not available prior to the expiry of the six-month period, and
(iii) why it was ultimately only acted upon when the notice was given. The facts
from which the debt arises would have had to be concealed or excluded from
the applicant’s knowledge for some reason that is explained in detail. On a

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proper interpretation of the Act, it is arguable that such explanations would be
limited to “the organ of state wilfully prevent[ing] [the creditor] from acquiring
such knowledge”. If not, what purpose does such wording serve? In the context
of innocently arrested individuals, logic would dictate that, absent exceptional
circumstances, the only remaining alternative reason would have to relate to
actual-, physical prevention of giving the notice itself, despite knowledge of the
facts from which the debt arises. To widen the nature of the discretion is likely
to undo or disregard the consequences of the deeming provision section
3(3)(a), if not the entire objective of the Act. A wider discretion would result in
more litigation, instead of the intended less.
[137] At paragraphs [109] and [110 } the court emphasised that “reliance on
“ignorance of the law” needs to be dealt with great circumspection, as it is
bound to convert strict compliance with the statutory gateway to litigation
through prior notice, into a floodgate for collateral litigation upon failure to
comply.” It was also stressed that “[t]he legislator deliberately referred to
facts, not some legal phrase such as “cause of action” .
[138] The Court warned at paragraph [112] and [113 ]
“[112] In summary, to simplify these kind of applications for condonation, a
creditor and its legal representatives would be well advised to realise that what
has/had to be stated in the notice in terms of the Act, may well seriously impede
a subsequent argument based on lack of knowledge for purposes of
condonation, unless a clear case for prevention can be established. If an organ
of state has acted, or failed to act, it is often axiomatic that some form of “debt”
is instantaneous. Those simple facts justify the giving of a notice and allow the
organ of state to act/stop the harm or to mitigate it. Such essential facts in a
notice will not improve over time, but the risk of not obtaining condonation will
increase.”

notice will not improve over time, but the risk of not obtaining condonation will
increase.”
[113] Once the basic facts are known, the need for reliance on prevention in
support of a condonation application is expressly prompted by the Act,
arguably to the exclusion of any other ground in support of good cause as an
essential element to satisfy the court to grant condonation. Ultimately a
“reasonable explanation” comes down to what has prevented (i) acquiring the
knowledge or (ii) the ability to act on the knowledge, despite proof of having
exercised reasonable care in obtaining and acting on the s imple facts. An

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applicant must explain that despite “reasonable care”, which has to be
detailed, it could not have obtained or have acted on the obtained knowledge.”
[139] The court rejected that the fact of the claimant’s incarceration does not
provide good cause for failing to provide the required notice. It was stated:
[130] It is doubtful that the mere fact of incarceration or access to an attorney
would in itself create support good cause, unless it results in absolute
prevention. An applicant would have to explain why, because of his innocence,
no other means existed to give notice of the facts that deprives him of freedom
or income, resulting in loss. Based on the reasoning in the previous section,
Kutoane in any event simply failed to explain step by step when he obtained
the last element of his requisite knowledge of the debt and why he did not give
notice earlier.
[131] It is not merely the period after expiry of the six months that weighs in on
the question of good cause or prejudice, but also the reasons for not giving
notice prior to the expiry of the six-month period.”
[140] The court rejected Kutoane’s argument that the state would not be
prejudiced:
“[132]Kutoane argues that the Respondent will not suffer any prejudice due to
alleged non-compliance with the provisions of the Act, if any. The organ of
state was “prejudiced” every day after Kutoane had knowledge of his alleged
innocent arrest, without giving notice of it. If Kutoane gave notice as
contemplated in the Act, the relevant organs of state could have acted there
and then to limit the extent of the debt, as opposed to allegedly having created
the debt. It is hard to see how this would not be the situation in all similar cases.
The sooner the organ of state is notified after the occurrence of the facts, the
less the prejudice. As stated above, significantly it is not merely the period after
expiry of the six-month period that weighs in on the question of good cause or

expiry of the six-month period that weighs in on the question of good cause or
prejudice, but also the reasons for not giving notice prior to the expiry of the
six-month period.”
[141] In conclusion the court emphasised the importance of providing timeous
notice to an organ of state of a claim and found:

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“[149] On the Kutoane’s own version “the facts giving rise to the debt” were
within his knowledge from the moment he got arrested, alternatively when he
realised that information relating to his alibi was deliberately being concealed.
[150] …
[151] The mere fact that Kutoane was in detention did not in itself prevent him
from acting on his knowledge of “the facts giving rise to the debt.
[152] …
[153] Kutoane would have had to explain that during the 747 days he had not
been able to seek or obtain legal advice, even if the doctrine of ignorance of
law had been relied upon and might have served to benefit him. Access to a
lawyer was not even alleged to be a prerequisite for compliance with the notice
requirements. But if that was a requirement, Kutoane had access to and the
benefit of legal representation. He is at liberty to blame his legal representation
for not advising him earlier, or for advising him to wait until after his acquittal,
if those are the facts.
…
[157] The facts of this matter is a classic example of depriving the relevant
organs of state of the opportunity to act upon the alleged facts giving rise to
the debt, in order to mitigate or terminate the consequences of state liability,
which ultimately draws on the liability on of taxpayers.
[158] The Act is clearly not intended merely to deal with the timeous notice in
respect of the ultimate result of liability on the part of a state organ, but to inhibit
a burden on state resources, encumbered damage -causing events, of which
the officials in power would want to be informed, as soon as possible to
mitigate liability and to avoid expenditure in the form of litigation, investigation,
and disbursements, where witnesses and evidence may no longer be readily
available. Absent prompt compliance, the state organ is deprived of the
opportunity to stop or mitigate or to curtail the costs related to obtaining
information and witnesses after the fact at greater expense as time goes by. It

information and witnesses after the fact at greater expense as time goes by. It
could well be argued that a failure to give notice is tantamount t o a failure to
mitigate. The obligation to mitigate the debt by giving prompt notice is then
arguably an element of what constitutes reasonable conduct, in particular the
pace at which a notice if given after knowledge of the requisite facts is
obtained. The inverse result is “unreasonably prejudicing” the organ of state.
[159] It is axiomatic that the failure on part of Kutoane to have notified the
organs of state for some 747 (and several weeks thereafter) of the intended

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legal proceedings, unreasonably prejudiced the said organs of state, if not
already a few days after arrest. It is more than likely that a prompt notice with
the known facts, at the latest after the first failed bail application, supported by
a reference to the alleged alibi, would have caused the organs of state to
intervene and to curtail the debt -causing events, in line with the obvious
purpose of the Act.
[160] It follows from this ground alone that the court has no jurisdiction to grant
leave to institute the legal proceedings in question, Kutoane having failed to
satisfy the court in respect of two of the three requirements in subsection
3(4)(b) of the Act.”
[142] In the more recent case of Gcam-Gcam v Minister of Police 2025 JDR
2648 (ECM) (“Gcam”) the same approach was taken. The plaintiff’s case
was that he became aware of the debt on 25 March 2015, being the date
on which the appeal succeeded and relied upon Malgas and Makhwelo.
The defendant on the other hand argued that prescription started to run
from the date that the plaintiff was arrested and premised his submission
on the Minister of Police v Zamani 2023 (5) SA 263 (ECB) at paras 12-
17.
[143] The court explained that once arrested and detained the detention is prima
facie unlawful and it becomes incumbent on the defendant to establish
justification; thus it is not necessary to await acquittal before bringing a
claim based on unlawful arrest and detention. It was held:
“[13] Wrongful arrest consists in the wrongful deprivation of a person’s liberty.
Liability for wrongful arrest is strict, neither fault nor awareness of the
wrongfulness of the arrestor’s conduct being required. To succeed in an action
based on wrongful arrest the plaintiff must show that the defendant himself, or
someone acting as his agent or employee, deprived him of his liberty. All that
is required of the plaintiff is to establish an act of arrest on the part of the

is required of the plaintiff is to establish an act of arrest on the part of the
defendant or its employees once the arrest is established, then it is incumbent
upon the defendant to establish grounds of justification or the lawfulness of

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the arrest. The liberty of an individual is paramount and has been observed
even prior to our constitutional era.
…
[14] In Zamani, Van Zyl DJP, also dealt with the legal principle that proof of
awareness of wrongfulness on the part of the plaintiff is not a requirement in
instances of unlawful arrest, suffice for the plaintiff to establish that he had
been unlawfully deprived of his liberty by either the defendant or those acting
in his stead. He stated thus:
‘It is consequently unnecessary for the plaintiff to allege wrongfulness, and
the burden of proof in respect thereof at trial is on the defendant once the
plaintiff has proved, or it has been admitted, that the defendant was arrested
and detained. It is for the defendant to allege and prove the existence of
grounds of justification. The reason lies in the plain and fundamental rule
that every individual's liberty is invaluable. In Zealand versus the Minister of
Justice and Constitutional Development Langa CJ explained it as follows:
“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 …, 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’.”
[15] It is worth restating what is said in Zealand, that ‘it was sufficient for the
applicant simply to plead that he was unlawfully detained. This he did. The
respondent then bore the burden to justify the deprivation of liberty, whatever
form it may have taken. The plaintiff did not have to wait for his release from

form it may have taken. The plaintiff did not have to wait for his release from
custody to institute a civil claim against the defendant. He may have done so
himself or through his attorney while in custody. Furthermore, all he was
required to plead is that he had been wrongfully arrested and detained by the
defendant or his agents. Van Zyl DJP summed it up correctly by saying that
‘the fact that the plaintiff is not required to allege and prove the absence of
justification for his or her arrest and detention, means that the facts from which
it must be concluded that authority for arrest of the plaintiff did, or did not exist,
are not material facts from which the delictual debt is said to arise.’
[16] In addition to having knowledge of the identity of the debtor as discussed
above, subsection 12(3) requires the creditor to have knowledge of ‘the facts
from which the debt arises.’ The facts in this matter which were known or ought
to have been known by t he defendant are that his arrest was unlawful even

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before his trial began. As previously stated, an arrest or detention is prima
facie wrongful. It is not necessary to allege or prove wrongfulness. It is
incumbent upon the defendant to allege and prove the lawfulness of
the arrest or detention Therefore, the defendant did not have to wait for the
outcome of his appeal. Suffice for him to have alleged that
his arrest and detention were wrongful. The contention by the plaintiff that he
acquired knowledge of all the relevant facts when he was acquitted on appeal
is misplaced.” [The matter referred to is Zealand v Minister of Justice and
Constitutional Development and others [2008] ZACC 3]
[144] The court disapproved of Malgas and Makhwelo on the following basis:
“[17] … It is trite that unlawful arrest and unlawful detention are two distinct
causes of action. An arrest may be lawful but the
subsequent detention be unlawful. Malgas does not concern unlawful arrest.
Malgas deals with unlawful detention and deprivation of liberty. I do not
appreciate the difference between unlawful detention and deprivation of liberty
as was contended for in Malgas, on the peculiar facts of that case because to
me those are the same. Wrongful deprivation of liberty consists in a person
being deprived of his physical freedom without justification. To succeed in an
action based on wrongful deprivation of liberty, the plaintiff must prove that the
defendant himself, or a person acting as his agent or servant, deprived him of
his liberty. The same requirement obtain when dealing with unlawful detention.
As a rule, every interference with physical liberty is prima facie (in the absence
of a ground of justification) wrongful. The test, therefore, is the same as
in unlawful detention. All the plaintiff, in Malgas needed to plead, was that he
was wrongfully deprived of his liberty and not wait for the outcome of the
appeal. In that instance, it would have been incumbent upon the defendant to

appeal. In that instance, it would have been incumbent upon the defendant to
prove the ground(s) of justification, in other words it would have to allege and
prove the lawfulness of his detention. The same principles dealt with above as
enunciated in Mtokonya, Zealand and Zamani (the latter to the extent that it
followed the principles in Mtokonya and Zealand, as it was bound by them),
ought to have been followed by the court in Malgas due to the stare
decisis principle. This court cannot, as a result follow the Malgas decision.
[18] Similarly, with respect Makhwelo supra, has been incorrectly decided in
so far as it states that “(i)n the case of any arrest and detention there is a
deprivation of liberty and loss of dignity which will be justified if there is a
conviction. It is difficult to appreciate how a debt be immediately claimable and
therefore justiciable which is the second requirement for a debt being due (see
Deloitte Hasking) prior the outcome of the criminal trial, or prior to charges
being dropped or otherwise “withdrawn”. This is in contradiction to what the
Constitutional Court said in Mtokonya and authorities referred to above. It is
my finding that in this instance, prescription started to run on the day of the
plaintiff’s arrest i.e 6 June 2009 and the debt became due on that day because
the plaintiff knew that the defendant was the debtor and had knowledge or
could have acquired that knowledge, if he had exercised reasonable care. The

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issue of the statutory notice is intertwined with the running
of prescription which started running from 6 June 2009. It follows that the
statutory notice should have been issued before the expiry of 6 months period
from that date.”

The once and for all rule
[145] In terms of the “once and for all rule”, a claimant may only claim once
against a defendant for damages caused by a certain event.
[146] Whether the “once-and- for-all rule” applies to claims for wrongful arrest
and detention and claims for malicious prosecution was considered by the
in Olesitse NO v Minister of Police (470/2021) [2022] ZASCA 90 (15
June 2022). The High Court, invoking the once-and- for-all rule rule, had
upheld the respondent’s objection that the applicant’s claim for malicious
prosecution amounted to a duplication of an earlier claim for unlawful arrest
and detention, that had been found to have prescribed. It held that the two
claims should have been brought in a single action and the Supreme Court
of Appeal agreed with this contention.
[147] Implicit in the findings of the High Court and the Supreme Court of Appeal
was that where a claim for malicious prosecution is to be brought together
with a claim for wrongful arrest and detention , the plaintiff would of
necessity have to wait until the charges against him were withdrawn or he
was acquitted before bringing his action, including his action based on
unlawful arrest and detention.

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[148] However, the Constitutional Court in Olesitse NO v Minister of Police
[2023] JOL 61795 (CC) (CCT 183/22) [2023] ZACC 35; 2024 (2) BCLR
238 (CC) (14 November 2023) disagreed, primarily as the causes of action
for wrongful arrest and detention and malicious prosecution are distinct
and arise at different times, the one at the date of arrest and the other at
the date of acquittal or the withdrawal of the charges against the plaintiff.
[149] Makgoka AJ summarised the approach taken by the Supreme Court of
Appeal thus:
“[18] In deciding whether the second action was a duplication of the first, the
Supreme Court of Appeal compared the allegations in both sets of particulars
of claim. It placed much store on the fact that in both actions, the deceased
had relied substantially on the same set of facts, and had, in respect of both
actions, claimed R400 000 for "contumelia, deprivation of freedom and
discomfort" as a result of the alleged conduct of members of the SAPS.
[19] Like the High Court, the Supreme Court of Appeal accepted that malicious
prosecution on the one hand, and unlawful arrest and detention on the other,
are two different and distinct causes of action. However, it held that on the
facts of this case, arising as they did from the same set of facts, those
differences were insignificant to allow different actions.”
[150] It was stated at para [34] that both the High Court and the Supreme Court
of Appeal adopted an incorrect "legal standard" by applying the “once and
for all rule” to facts to which the rule does not apply. Makgoka AJ accepted
that claims for unlawful arrest and detention arise at the date of the arrest
and that claims for malicious prosecution arise at the time of discharge of
the case. It was said:

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“[58] The premise of the Supreme Court of Appeal's reasoning is erroneous.
The issue is not whether there are differences in how the two causes of action
were pleaded in the respective particulars of claim. It is whether the two
actions, as a matter of law, are based on two different causes of action, and
whether those causes of action have different elements. The comparison
between the respective particulars of claim seems to have largely influenced
the finding by the High Court and the Supreme Court of Ap peal that the two
claims should have been brought in a single action. For that reason, I find it
necessary to consider the elements of causes of action based on unlawful
arrest and detention, and malicious prosecution, respectively. Although the two
causes of action are both based on the action iniuriarum, their elements are
different.
…
[63] Given these considerations, the finding by the High Court and the
Supreme Court of Appeal that the two claims should have been brought in a
single action because of the apparent similarities in the respective particulars
of claim, is unsustainable. Furthermore, contrary to what the Supreme Court
of Appeal held, it is irrelevant that the deceased had all the facts on which to
formulate both his claims when he instituted the first action. The question is
one of principle and law. If the deceased was, as a matter of law, entitled to
bring the two actions separately, he cannot be deprived of that right merely
because when he instituted the first action, he had all the facts enabling him to
also institute the second action.
[64] The other consideration is that two or more causes of action, although
arising from the same set of facts, may not arise at the same time. For
example, in the present case, the first action for unlawful arrest and detention
arose immediately after the deceased was arrested and detained. From the
beginning the arrest and detention were either lawful or unlawful. But the

beginning the arrest and detention were either lawful or unlawful. But the
second action based on malicious prosecution had not arisen then, and could
not be instituted at that stage, as the criminal charges against the deceased
had not yet been withdrawn. This occurred almost two years later, on 17 May
2011. There would also have been the risk of prescription of the first claim, if
the deceased was to wait for the termination of the criminal charges in order
to combine the two claims in a single action.
[65] On the reasoning of the High Court and the Supreme Court of Appeal, in
the above scenario, the deceased would be barred from instituting the second
action after the charges against him were withdrawn. Clearly that would be
absurd, as the second action could only competently be instituted once the
charges were withdrawn. This is further demonstrated by reference to the facts
in Evins and National Sorghum.”

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[151] It was ultimately decided that the misapplication of the “once and for all
rule” to the facts at hand the Supreme Court of Appeal had incorrectly
developed the common law which constituted a breach of the
Constitutional right of the applicant to access to the courts. This would for
all intense and purposes constitute the final and authoritative decision on
this topic and puts paid to the appellant’s appeal.
[152] As an anecdote, I would finally like to refer to President of the Republic
of South Africa and Another v Tembani and Others [2024] ZACC 5
(“Tembani”). This matter concerned certain delictual claims for damages
brought by Zimbabwean farmers whose farms had been expropriated
arising from the alleged unconstitutionality of former President Zuma’s
participation in the 2011 suspension decision and adoption of the 2014
Protocol, the intricate detail of which is not necessary for current purposes.
What is important, however, is the Constitutional Court’s approach to the
question whether completion of the cause of action was delayed until the
Constitutional Court made an order confirming or declaring the
unconstitutionality of former President’s conduct.
[153] The plaintiffs sought condonation, to the extent necessary, for their failure
timeously to serve the notice required by section 3(1) of the Institution of
Legal Proceedings Act. The defendants delivered an exception to the
amended particulars of claim, alleging that the plaintiff’s claims had
prescribed. The defendants contended that the High Court and Supreme

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Court of Appeal should have refused the condonation application because
the debts which the plaintiffs were seeking to enforce had prescribed.
[154] Van Oosten J, sitting in the High Court, agreed that the plaintiffs were
neither required nor able to proceed with their action until a court by judicial
review had set aside the President’s participation in the 2011 suspension
decision and adoption of the 2014 Protocol. The High Court accepted that
the provisions of section 172(2)(a) of the Constitution had the effect that a
declaration that President Zuma acted unconstitutionally had no effect until
confirmed by the Constitutional Court; this meant that the plaintiffs did not
need condonation.
[155] The Supreme Court of Appeal reasoned that, since the High Court had
made no order on the condonation application, there was no relevant order
against which the defendants could appeal.
[156] In dealing when the debts became due, Rogers J stated on behalf of the
Constitutional Court:
“[85] Subject to the requisite actual or constructive knowledge by the creditor,
a delictual debt becomes “due”, within the meaning of section 12(3) of the
Prescription Act and section 3(2)(a) of the Institution Act, once the debtor’s
wrongful and deliberate or negligent conduct has caused the creditor to suffer
damage. That is when the creditor is entitled in law to institute action for the
recovery of damages. [emphasis added]
[86] In terms of section 12(3) of the Prescription Act and section 3(3)(a) of the
Institution Act, this is subject to the qualification that time does not start to run
(that is, the debt is not deemed to be “due”) until the creditor has actual or

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constructive knowledge of the identity of the debtor and the “facts from which
the debt arises”. The “facts” do not include that the debtor’s conduct was
wrongful or negligent or that the creditor has a right to sue the debtor, nor does
it include legal conclusions that may be drawn from the facts. This Court has
cited with approval the proposition that time starts to run against a creditor
when it has “the minimum facts that are necessary to institute action” and that
the running of prescription is not postponed until the creditor “becomes aware
of the full extent of its legal rights”.
[157] Rogers J explained that the finding of constitutional invalidity did not make
former President Zuma’s acts unlawful, but merely provided confirmation
thereof.
[90] The second premise is that, because a finding of constitutional invalidity
has to be made or confirmed by this Court, the plaintiffs’ causes of action were
not completed until such an order was made by this Court. In other words, the
second premise is that until this Court made its order the President’s conduct
had to be treated by a trial court as constitutional.
[91] The second premise, in my view, confuses what has to be decided with
who has to decide it and when it has to be decided. If the President acted
unconstitutionally in May 2011 and August 2014 in the manner alleged by the
plaintiffs, his conduct was, objectively speaking, already unconstitutional then.
If a court of competent jurisdiction later concludes that the President acted
unconstitutionally, its conclusion is that he acted unconstitutionally when he
performed the acts in question. The acts do not become unconstitutional only
from the time the court makes such a conclusion. This is in accordance with
the doctrine of objective constitutional invalidity.”
[158] Similarly, the appellant’s acquittal is not what made his arrest and
detention unlawful ; it was his innocence that made it unlawful and his

detention unlawful ; it was his innocence that made it unlawful and his
knowledge of his innocence is all that would be required for the debt of the
respondent to be regarded as due within the meaning of section 3(2) of the
Institution of Legal Proceedings Act.

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Conclusion
[159] There can thus be no doubt that there are numerous conflicting judgments
on when claims for unlawful arrest and detention arise and whether
claimants can be said to have sufficient knowledge prior to their obtaining
legal advice, which ultimately needs resolution by the Supreme Court of
Appeal and the Constitutional Court. The weight of the more recent
judgments have been to the effect that claims for unlawful arrest arise on
the date of the arrest, if it was unlawful, and separate causes of action for
unlawful detention arise on each day of the plaintiff’s unlawful detention;
they do not arise on the date the claimant is released from custody-nor do
they only arise after the claimant has been acquitted or the charges against
him have been withdrawn or the claimant has knowledge of his claims after
consulting an attorney.
[160] Although an acquittal by the court or withdrawal of the charges carries with
it the necessary inference that the plaintiff was wrongly arrested and
detained, the reasoning adopted by Rogers J in Tembani makes it clear
that no pronouncement by the court is required in this regard, either
expressly or by implication in cases for wrongful arrest and detention.
[161] In the premises, the court a quo’s finding that the six-month period for his
claim based on wrongful arrest commenced to run on the date of the
appellant’s arrest on 16 September 2016 was correct. The finding that the

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appellant’s claim for his unlawful detention only arose in November 2017
when he was released on bail, however, was not correct and he became
obliged to issue the requisite section 3(1) notice and the six-month period
commenced to run from the first day of his detention, each day of his
detention after this constituting a distinct and separate cause of action.
[162] The required notice was not served until 15 May 2018. It was thus
incumbent upon the appellant to seek condonation, which would have
been competent as the appellant’s claim had not prescribed as the
summons was served on 27 June 2018, within three years of the
appellant’s arrest on 16 September 2016. It is regrettable that the
appellant’s counsel withdrew his application for condonation.
[163] Although I recognise that this full court is not bound by the single judge
judgments in this and other divisions, there appears to be sufficient
authority by the full bench in the Western Cape and by the Supreme Court
of Appeal and Constitutional Court tying this courts hands in this instance.
[164] As a caveat, I feel uneasy by the approach taken by the courts in recent
years cited in this judgment. The courts in the cases cited seem to assume
access to lawyers and that all persons who know they have been
wrongfully arrested and detained for a crime they know they did not
commit, also know or should be deemed to know that they have a civil
claim against the SAPS and/or the Minister of Police for unlawful arrest

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and detention and need to ensure that they service section 3(1) notice
within six months after their unlawful arrest and detention.
[165] In this country with extremely long periods of detention for awaiting trial
prisoners in view of the serious backlog in cases able to come before the
courts, the period of detention will in many, if not most cases, exceed six
months. In such circumstances, it would appear to be unreasonable to
expect a claimant to be aware of his claim and notify the Minister of Police
of his intention to lodge a claim within six months, particularly where the
claimant is without legal representation.
[166] Moreover, the fact of the claimant’s incarceration should surely distinguish
claims for unlawful arrest and detention from most other claims against
organs of state where they are obliged to give such state entity notice of
their claim within a period of six months. Incarcerated persons must in
almost all cases be at a severe disadvantage in having their claims
prosecuted timeously and in providing notice of their claims whilst awaiting
trial and having fewer privileges than convicted prisoners. Like the plaintiff
in Kutoane, their primary focus will be on securing their release from
prison.
[167] In saying this I am mindful of the warning given my Zondo J (as he then
was) in Mtokonya and in Kutoane that to hold otherwise would mean that
claims would never prescribe until the claimant had sought legal advice

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and representation. I am not sure what the answer is to this vexed question
but am equally unsure that the approach taken ensures justice to the
potential litigants; a fortiori in unlawful arrest and detention claims where
the same approach is taken to the service of a section 3(1) notice and
extremely strict requirements are imposed upon the claimants in seeking
condonation. Indeed, the approach taken in Kutoane appears to be that
unless the claimant can show that he was prevented from consulting an
attorney or that his attempts to serve the required notice has failed, a
claimant who professes his innocence will not be able to demonstrate good
cause for the purposes of his condonation application.
[168] I have read the judgment of my brother Wilson J. I agree with him that my
conclusion that the debt fell due when the appellant was arrested does not,
in itself, dispose of the appeal. I would allow the appeal for the reasons he
gives, while nevertheless expressing a final view on the issues I have
decided. I agree with the order Wilson J makes.


pp SM WENTZEL
Acting Judge of the High Court

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WILSON J (with whom MFENYANA J agrees):


[169] I have had the benefit of Wentzel AJ’s comprehensive and closely-
reasoned judgment. I agree with Wentzel AJ insofar as she concludes that
(a) the appellant was under no duty to take steps to ensure that the notice
given under section 3 of the Institution of Legal Proceedings Against
Certain Organs of State Act 40 of 2002 (“the Legal Proceedings Act”)
actually came to the respondent’s attention, provided that the appellant
had given notice in a manner the statute prescribes, and (b) that the effect
of the ap pellant’s failure to file a replication is that the allegations in the
respondent’s plea are deemed to be denied.
[170] I share my sister’s misgivings about her conclusion that the debt the
appellant claims in this case fell due when he was arrested . Had it been
necessary for me to engage with that conclusion, my inclination would
have been to depart from it. It seems to me that the “common sense”
approach taken by Foxcroft J in Els v Minister of Law and Order 1993
(1) SA 12 (C) at p 17 – that “accused persons in criminal cases against
whom prosecutions had commenced should not be required to commence
civil litigation before the conclusion of the criminal proceedings” – should
apply to claims for wrongful arrest, at least where the accused is held
without bail between their arrest and the termination of their prosecution. I
am not convinced by the reasons Eksteen J gives , in Thompson v
Minister of Police 1971 (1) SA 371 (E), for drawing a distinction between

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claims for malicious arrest and claims arising from arrests that are merely
unlawful. While I agree with Wentzel AJ that the more recent Constitutional
Court and Supreme Court of Appeal decisions indicate a direction of travel
consistent with such a distinction, I do not think any of them binds us to
reach the conclusion that the debt the appellant claims in this case fell due
on the date of his arrest.
[171] Be that as it may, given what I regard to be three extraordinary features of
this case, I do not think it is necessary to reach the issue of when the debt
the appellant claims fell due. I shall, accordingly, assume, without deciding,
that Wentzel AJ’s conclusions on that issue are correct.
[172] Even if it is assumed that the debt fell due when the appellant was arrested ,
this appeal should plainly succeed. I reach this conclusion in light of the
following three facts which were, or must be, common cause on the record,
and which Wentzel AJ quite correctly accepts in her judgment. First, the
respondent had no defence to the merits of the claim before the court
below, and in fact conceded those merits. Second, the court below would
have granted the application for condonation placed before it, had the
application not been withdrawn. Third, the court below apparently felt
constrained to accept the withdrawal of the application for condonation.
[173] The starting point, it seems to me, is that the court below was under no
obligation to accept the decision to withdraw the application for

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condonation. Rule 41 of the rules of this court states that, after set-down,
an application may be withdrawn only with the court’s leave or with the
consent of the parties to it. In deciding whether to grant such leave, the
court exercises a discretion (see Karoo Meat Exchange Ltd v Mtwazi
1967 (3) SA 356 (C) at 359F-G). A court faced with the withdrawal of an
application set down before it must accordingly appreciate that the
discretion exists, and exercise it judicially. I do not think that the court below
did either of these things.
[174] There is nothing on the record to suggest that the respondent consented
to the withdrawal – although I have no doubt that he would have consented
had he been asked. However, he was not asked, and he did not consent.
Accordingly, the application could only have been withdrawn with the leave
of the court below. It is clear from the record that the court below gave no
consideration to whether counsel ought to be permitted to withdraw the
condonation application. Counsel made no application to withdraw it. He
abandoned it from the bar after a short adjournment to take instructions .
The court below, it appears, simply accepted that abandonment.
[175] This was not the correct approach. In my view, it was quite troubling, given
that there was no defence on the merits of the appellant’s claim, and the
court recorded that it would have granted the condonation application had
it not been abandoned. I accept that it is “not ordinarily the function of the
court to force a person to institute or proceed with an action against his or

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her will or to investigate the reasons for abandoning or wishing to abandon
one” (Levy v Levy 1991 (3) SA 614 (A) at 620B), but, as the decision in
Levy records, there are exceptions to this rule – for example in cases
where the withdrawal amounts to an abuse of process.
[176] This case constitutes another clear exception. By permitting the withdrawal
of the condonation application, the court below deprived itself of the power
to grant an uncontested claim. That result was clearly unjust, and it shut
the doors of the court to the appellant for no reason of substance. It would
have been different had there been no condonation application at all. But
in this case there was such an application, which the court allowed to be
withdrawn. This led the court to dismiss an uncontested claim for wrongful
arrest and detention. There was no justice in that result.
[177] I think it follows from these facts that, had the court below recognised and
exercised the discretion afforded to it by rule 41 (which is no more than a
codification of the common law), it would have exercised its discretion to
refuse leave to withdraw the condonation application.
[178] The court below appears to have eschewed that approach because of
another misconception. It is clear from the record that the court took the
view that the condonation application ought not to have been enrolled at
the outset of the trial, but should instead have been enrolled in the trial
interlocutory court. I accept that this is the general practice, but there is

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nothing in the practice directions of this court (which were in any event not
binding on the court below) or the rules of court, or in the law more
generally, that prevented the court below from determining the
condonation application as a preliminary issue at the outset of the trial. It
appears from the record that the court below did not consider that this path
was reasonably open to it. That was a mistake.
[179] It follows that the court below’s decision to permit the withdrawal of the
appellant’s condonation application is vitiated by its failure to appreciate
that it was not obliged to do so, and by its erroneous assumption that the
application ought not to have been enrolled at the outset of the trial. We
are, I think, at large to interfere with that decision, and to consider and
determine the condonation application the court below would have granted
had it considered itself at large to do so.
[180] Assuming that it was required, it is inarguable that condonation should
have been granted. There is good cause to overlook the delay. The
explanation for the delay is that the appellant was either incarcerated or
sourcing legal representation for the whole of the period of the delay. Once
representation was secured, the appellant’s representatives acted
promptly to give the relevant notice on his behalf. The appellant’s
prospects of success in the main action are overwhelming, since the merits
of his claim were promptly conceded at the outset of trial. The claim had
not prescribed. The respondent identified no prejudice arising from late

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receipt of the notice – nor could there be any such prejudice, since the
merits of the claim were conceded.
[181] Condonation having been granted, there is no defence to the claim, which
should obviously succeed. I need not consider the issue of whether an
organ of state is entitled, in principle, to rely on the failure to apply for
condonation under section 3 (4) of the Legal Proceedings Act in
circumstances where the claim is conceded, but I am constrained to
observe that the exercise of such an entitlement, if it exists, would be
abusive. In the proceedings below, the court described itself as
“flabbergasted” that the respondent took the point at all. I share that
consternation.
[182] In any event, the purpose of the Legal Proceedings Act is to permit the
State to keep track of its contingent liability, and to ensure that it has the
time it needs to arrange to defend the claims it considers should be
defended (see, in this respect, Johannesburg Water (Soc) Ltd v Dark
Fibre Africa (Pty) Ltd 2025 (5) SA 452 (GJ), paragraph 11). The erection
of gratuitous administrative barriers to a claim that everyone accepts must
succeed is not a purpose that can reasonably be ascribed to the Act.
[183] The appeal must be upheld. We asked counsel to confer and agree on the
appropriate quantum of damages in the event that we were inclined to
uphold the appeal. No agreement was reached. Despite being invited to

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do so, neither party’s counsel addressed us in any detail on the quantum
of damages that should be allowed, or on the appropriateness of a remittal
to determine only that question.
[184] Given that the appellant seeks only general damages, we are in as good a
position to determine his loss as any court would be on remittal.
Accordingly, it falls to us to determine the appropriate quantum. Having
been unlawfully arrested, the appellant was detained for 14 months. He
claimed for the whole of that period, and, subject to the point taken on the
failure to give notice under the Legal Proceedings Act, the whole of the
claim was conceded. It is accordingly unnecessary for us to revisit the
question, which caused such difficulty in De Klerk v Minister of Police
2021 (4) SA 585 (CC), of whether any preliminary refusal of bail rendered
the appellant’s detention lawful on the facts of this case, whether because
they constituted intervening acts or otherwise. It was not suggested that
there were any such refusals. Nor was it suggested that the arrest did not,
factually, cause the full period of detention that followed it.
[185] In De Klerk, the Constitutional Court awarded R300 000 for seven days’
detention. We must take that as our starting point. This works out at just
over R40 000 per day. There is nothing said in De Klerk about the
conditions of the plaintiff’s detention, but in this case, the appellant did give
evidence of the sometimes appalling conditions in which he was detained.
Ultimately, though, on any approach to the quantification of damages for

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14 months’ detention, the R1.5 million the appellant claims is well within
the guideline created by the decision in De Klerk. That is the amount I
would award.
Order
[186] Accordingly, we make the following order –
[186.1] The appeal is upheld with costs, including the costs of counsel,
which may be taxed on scale “B”.
[186.2] The order of the court below is set aside, and substituted with the
following order –
“1. Leave to withdraw the condonation application is refused.
2. Condonation for the late delivery of the notice required under
section 3 (1) of the Institution of Legal Proceedings Against Certain
Organs of State Act 40 of 2002 is granted.
3. The defendant will pay the plaintiff the sum of R1 500 000 plus
interest at the prescribed rate to run from 27 June 2018 to the date
on which the judgment is satisfied.
4. The defendant will pay the plaintiff’s costs of suit.”

S D J WILSON
Judge of the High Court

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Date of hearing: 23 July 2025

Date of judgment: 24 October 2025

This judgment was handed down electronically by circulation to the parties’
representatives by email and by uploading the judgment onto CaseLines. The date
of delivery of the judgment is deemed to be 24 October 2025.

Appearances:

For the Appellant:
Counsel: D Moodliyar
Instructed by: Leon JJ Van Rensburg

For the Respondent:
Counsel: R E Magongwa
Instructed by: Mr B du Preez, State Attorney, Johannesburg