IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION-MAKHANDA)
CASE NO: 2798/2021
In the matter between:
LUVUYO PHUMELELE MKHOSANA APPLICANT
And
THE MINISTER OF POLICE RESPONDENT
JUDGMENT
Nkele AJ:
INTRODUCTION.
[1] This an application that has been b rought for purposes of seeking
condonation for the applicant’s failure to serve the National Commissioner of
Police with a Statutory Notice within a period of six Months from the date the
cause of action arose, and failure to serve the Provincial Commissio ner of
Police with any notice whatsoever. The application is being opposed by the
respondent on the basis that the claim has prescribed.
RELEVANT FACTUAL BACKGROUND
[2] The applicant is an adult male who resides at Cala Administrative Area, in the
District of Cala, Eastern Cape Province.
[3] On or about the 1st of June 2019 at or near Paradise in the Magisterial District
of Lady Frere, within the jurisdiction of the abo ve Honourable Court, applicant
was wrongfully and unlawfully arrested by members of the South African
Police Services, whose full and further particulars were unknown to him.
[4] In the particulars of claim the applicant further alleges that he was clapp ed in
the face with an open hand by a police official, was further shot at by other
police officials and also hit with the back of the rifle on the face as result of
which he became unconscious.
[5] As direct result of the wrongful and unlawful assault af oresaid by the
members of the South African Police Service the applicant had to undergo
medical treatment after he sustained the following injuries:
1.1 Nasal Septum Fracture.
1.2 2 cm left supra orbital lacerations.
1.3 1 cm nasal ridge lacerations; and
1.4 Severe bodily injuries.
[6] The applicant caused a Statutory Notice to be served at the respondent’s
head office on the 12th of March 2021, which was approximately one year and
eight Months from the date the cause of action arose. No service of the
aforesaid statutory notice was effected upon the Provincial Commissioner but
was served with the Summons on the 27 th of October 2021. The summons
was also served upon the Minister and the State Attorney on 17 September
and 25 November 2021, respectively.
[7] After service, it is common cause, that they entered an appearance to defend
and also filed a plea and a special plea on behalf of all the defendants. In the
special plea the defendant raised non -compliance with the provisions of
section 3(1)(a); (2)(a) and (4)(1) of the Institution of Legal Proceedings
Against Certain Organs of the State Act 1, (“the Act”). This application was
therefore launched consequent upon receipt of the special plea aforesaid.
140 of 2002.
THE APPLICANT’S CASE
[8] In support of the order sought, the applicant strongly contends that although
there has been failure to serve the statutory notice timeously upon the
National Commissioner, summons was served within the three -year period of
prescription. The applicant further admits failure to se rve the Statutory Notice
upon the Provincial Commissioner, but argues that the summons was served
on the 27 th of October 2021 and that was well within the three -year period of
prescription.
[9] The applicant further argues vehemently that the non -service of a Statutory
Notice or the late issue thereof does not result in the prescription of a claim. It
is for that reason that condonation for the late issue of the statutory notice
against the National Commissioner and the non -service thereof upon the
Provincial Commissioner is sought in this application. In support of the
argument for condonation, the applicant relies on the judgments of Sello
Thabang v Minister of Police 2 and Minister of Agriculture v C.J. Rance (Pty)
Ltd 3.
[10] The applicant’s reasons for the failure to timeously serve a statutory notice, in
respect of the National Commissioner, and for the total failure to serve same
in respect of the Provincial Commissioner, appear to be that he did not
immediately approach legal representatives for ad vice in his hometown of
Cala. Firstly, because he had to attend to the treatment of his injuries and that
took him some Months before he felt relieved. Secondly, after recuperating
from his injuries, he further delayed looking for an attorney in his local town
because they were mainly concentrating on doing work in the Magistrate
Court. His reason for the reluctance to approach those attorneys practising in
Cala was that he felt that his matter should be adjudicated in the High Court.
2 case no. 8907/2016
3 Case No. 293/09/2010) ZASCA 27 March 2010.
Thirdly, he was unaware that a statutory notice had to be issued before action
proceedings could be instituted against the respondent, and as a result of that
he took time to look for an Attorney. It was only when he consulted with an
attorney towards the end of March 2021 that he got to know that a statutory
notice should have been issued before action proceedings could be instituted.
[11] Other reasons advanced in the papers and during argument were that the
applicant has great prospects of success on the merits, and in this regard,
reference was made to the plea filed on behalf the defendant, which is a bare
denial. The applicant also contended that no prejudice will be suffered by the
defendant if the condonation sought is granted.
THE RESPONDENT’S CASE
[12] On the other hand, the respondent contends with much vigour and
determination that applicant’s cause of action arose on the 1 st of June 2019
and would have become prescribed on the 1 st of March 2022. The applicant
was well aware of that. The respondent further co ntends that, as far back as
the 10th of March 2022 when the special plea was filed, that there has been
non-compliance with the provisions of the Act but chose to wait for four
Months before he could launch a condonation application. He only lodged the
application on the 4th of July 2022 and no explanation has been proffered for
that delay. The effect of the respondent’s argument in this regard, as I
understand it, is that applicant’s claim has prescribed due to failure to
timeously issue a statutory notic e to the National Commissioner and to issue
same at all to the Provincial Commissioner
[13] It is also the respondent’s contention that in terms of the State Liability Act a
party who intends to institute legal proceedings against an organ of the state
is required to give notice of the intended proceedings to the National
Commissioner, Provincial Commissioner and to the State Attorney. The trust
Commissioner, Provincial Commissioner and to the State Attorney. The trust
of the respondent’s argument in this regard is that failure to issue the statutory
notice to any of the listed p arties is fatally defective, as it leads to the
prescription of a claim that a party may have against an Organ of the State.
The respondent strongly persuaded me to dismiss the application on that
basis.
[14] The respondent further argues that, there has not been a proper explanation
for the delay and the reasons upon which the applicant relies are not enough.
In effect they amount to no reasons at all as, in particular, ignorance of law is
no excuse.
[15] Lastly, the respondent contends that if condonati on is granted it will suffer
immense and irreparable prejudice. To substantiate that argument, the
respondent argues that there has been an unreasonable delay from the time
the statutory notice was sent to the respondent, the time when the applicant
got to know that it had to file a condonation application and the time the
application was actually launched. The applicant therefore failed to satisfy the
requirements envisaged in terms of section 4 of the Act, so the argument
went.
THE REGULATORY LEGAL FRAMEWORK
[16] It a trite that Chapter III of the Prescription Act 4 applies to debts of organs of
state. That means that there is no distinction between these and other debts
about when prescription begins to run, the period of prescription, delay in the
completion of prescription or the interruption thereof. 5 That trite principle is
confirmed by the provisions of section 2 of the Act which are to the effect that
subject to section 3 and subsections (3) and (4), a debt which became due
before the fixed date, which has not been extinguished by prescription and in
respect of which legal proceedings were not instituted before that date; or
after the fixed date, will be extinguished by prescription as contemplated in
Chapter III of the Prescription Act.6
4 68 of 1969.
5 Amler’s Pleadings LexisNexis 10th Ed page 352.
6 also, Minister of Finance v Gore [2007] 1All SA 309 (SCA), 2007 (1) SA 111 SCA para 12.
[17] Of particular relevance is the preamble to the Act no. 40 of 2002 which
provides that:
“AND RECOGNISING THAT:
. the Prescription Act, 1969, (Act no,68 of 1969) being the cornerstone of the laws
regulating the extinction of debts by prescription, c onsolidated and amended the laws
relating to prescription;
. some of the provisions of existing laws which provide for different periods of
prescription in respect of certain debts are inconsistent with the periods of
prescription prescribed by the Prescription Act, 1969.
AND BEARING IN MIND THAT:
. South Africa has moved from a parliamentary sovereign state to a democratic
constitutional sovereign state;
. the Bill of Rights is the cornerstone of democracy in South Africa and that the State
must respect, protect, promote and fulfil the rights in the Bill of Rights”.
[18] In an instance where an organ of State relies on a creditor’s failure to serve
the required notice, the Creditor may apply for condonation, even after the
issue of summons. The court may grant the application if it is satisfied that:
(a) The debt has not been extinguished by prescription;
(b) Good cause exists for the creditor’s failure to serve the notice; and
(c) The organ of state is not unreasonably prejudiced by the failure.7
[19] In terms of section 5(1) of the Act any process by which legal proceedings
contemplated in section 3(1) are instituted must be served in accordance with
the provisions of section 2 of the State Liability Act 8, where the defendant or
respondent is the Min ister of Police, service of the process must be effected
upon the National Commissioner as defined in the in the South African Police
Services Act No. 68 of 1995.
[20] Section 2(2) (a) provides that the plaintiff or applicant, as the case may be, or
his o r her legal representatives must, after any Court process instituting
proceedings and in which the executive authority of a department is cited as a
nominal defendant or respondent has been issued, serve a copy of that
nominal defendant or respondent has been issued, serve a copy of that
7 Almer’s Precedent ibid page 353, section 3(4) of Act no. 40 of 2002, Minister of Safety and Security
v De Witt 2009 (1) SA 457 (SCA).
8 no. 20 of 1952.
process on the Head of Department con cerned at the Head Office of that
Department. Interpreting the provisions of section 2(2) of the State Liability
Act the Supreme Court of Appeal in Minister of Police v Miya made the
following remarks:
“As already stated above, it is common cause that the main issue in this appeal
concerns the interpretation of section 2(2) of the State Liability Act. It is by now trite
that when a legislative provision is to be interpreted, consideration should be given to
the language used in the light of the ordinary rul es of grammar and syntax; the
process of interpretation is objective, not subjective; and a sensible meaning should
be preferred rather than an insensible one. Furthermore, the Constitutional Court has
made it clear that when interpreting legislation, the purpose of the impugned provision
must be fulfilled, and if it is fulfilled, a mechanical approach is to be deprecated” .9
[21] At paragraph 14 of the Miya judgment the Supreme Court of Appeal held that
“There is also the injunction that in section39(2) of the Constitution, which enjoins
courts, when interpreting any legislation, to promote the spirit, purport and objects of
the Bill of Rights. Thus, where a provision is reasonably capable of two
interpretations, the one that better promotes the spirit, p urport and objects of the Bill
of Rights should be adopted. The right implicated in this case is that of access to
court, enshrined in section 34 of the Constitution. Consistent with this injunction, the
interpretation of section 2(2) of the State Liabilit y Act must be one which promotes
this right, by considering the underlying purpose of the section, rather merely its text.
This purposive approach is far more consistent with our constitutional values, than
reading the section narrowly and strictly, as preferred by the appellants”.
[22] In the Miya case the central issue for determination before the Supreme Court
of Appeal was whether non -compliance with the provisions of section 2(2) of
of Appeal was whether non -compliance with the provisions of section 2(2) of
the State Liability Act renders a Summons a nullity. That issue arose as a
result of failure to serve summons on the Minister of Police in terms of section
2(2)(a), although the summons was served upon the state attorney
representing Minister. As a result of that the Minister raise a special plea of
prescription due to non -service of summons on him. The High Court
dismissed the special plea on the basis that the Minister was made aware of
the summons and even filed an appearance. For that reason, the High Court
concluded that, non -compliance with section 2(2)(a) did not render the
9 1250/2022) ZASCA 71 (16 May 2024) para 12.
summons void, as the purpose of secti on 2(2)(a) has been achieved. In that
matter the Supreme Court of Appeal considered the fact that the Minister fully
participated in all stages of the proceedings and it therefore endorsed the
purposive interpretation of section 2(2) as adopted in Minister of Police v
Molokwane.10
EVALUATION AND APPLICATION OF LAW TO THE FACTS
[23] At this juncture it is appropriate to have regard to the facts and the questions
of law pleaded by the parties. This is so because each case is decided upon
its facts and, sim ilarly the relevant legal principles are applied to given facts.
With that being said, I now turn to first consider the given facts.
[24] At paragraphs 9,10,11, 12, 13 and 14 of the Founding Affidavit, effectively the
applicant at those paragraphs deals wi th good cause where, inter alia, he
alleges that he was unaware of the legal requirement relating to the issue of a
Statutory Notice and only became of it when he consulted his present
attorneys of record. By that he was advised that it was already late to file the
requisite statutory notice. In the Answering Affidavit there is no pertinent
averment dealing with the applicant’s paragraphs in the Founding Affidavit
relating to good cause.
[25] There are therefore no facts pleaded by the respondent counter to those that
deal with good cause in the Founding Affidavit. All that the respondent has
done in the Answering Affidavit is to dwell much on the conclusions of law
relating to prescription, non -service of a Statutory Notice and reasons for the
delay. Regarding delay, all that the respondent says is that it was impossible
and illogical for the applicant to have only approached attorneys in May 2021
and yet claim to have sent the Statutory Notice a year earlier, in 2020. I have
not located this averment the respondent is referring to, either in the founding
affidavit or the replying affidavit. What is also of profound importance is that
affidavit or the replying affidavit. What is also of profound importance is that
the applicant has argued very strongly that it has a strong case, meaning he
has strong prospects of success in the main action. That has not been
10730/2021) [2022] ZASCA 111 (15 July 2022).
gainsaid by the respondent. I am therefore bound to take that into account
when I decide on an appropriate order.
[26] In Modipane v M M Dada BK h/a Dada Motors Lichtenburg Landman J ,
para 12 explained the role of pleadings when he held that:
“[12] At the outset it is necessary to restate, briefly, the role and function of
pleadings in dispute resolution. Pleadings define the ambit of the dispute.
They indicate what the nature of the dispute is and what facts must be proven
by the plaintiff to sustain the claim. And conversely the facts which must be
resisted and the facts which must be proven to sustain the defence. The
pleaded facts also indicate the legal principles applicable to the claim and the
defence even though it is no customary to label the nature of the claim or
defence”.11
[27] In the present matter what is common cause is that after the institution of the
action, the respondent did not only file an appearance to defend but also filed
a special plea and a plea -over. It is trite that the fact that the respondent has
raised prescription, in opposition to the application for condonation, as a
defence does not on its own mean that the claim has in fact prescribed. In this
regard Norman J in Dike v Minister of Police lucidly explained the position as
follows:
“Prescription is a legal defence which may warrant leading of evidence at the trial,
and the trial court will decide whether the matter has indeed prescribed. The
respondent has not advanced any facts whatsoever up on which he based his
contention that the applicant had knowledge of the identity of him as the debtor more
than three years before the action was instituted”.12
[28] The respondent strongly contends that the applicant knew the applicant’s
cause of action arose upon his arrest on the 1 st of June 2019. To quote the
wise reasoning of Norman J in the Dike judgment “if one were to follow this
reasoning it would mean that there is absolutely no basis upon which people
reasoning it would mean that there is absolutely no basis upon which people
would seek legal advice. Upon each and every arrest then a cause of action
would arise, and an applicant would be expected to rush to Court and institute
an action. I see no legal impediment to seeking legal advice. In fact, it is a
11 (1559/2010) [2011] ZANWHC 43 (30 June 2011)
12 (1559/2010) [2011] ZANWHC 43 (30 June 2011).
prudent thing to do because not every arrest that is perceived to be unlawful,
is actionable. The applicant demonstrated that he was not aware of her
rights”13
[29] I am in full agreement with reasoning in the Dike Judgment and I am of the
view that it applies in this matter with equal force. This is so because the
applicant has fully explained the reasons for the delay, in particular that he
was not aware of the statutory requirement relating to the issue of a statutory
notice and that has not been gainsaid in any meaningful way. Moreover, the
applicant has strong p rospects of success to such an extent that the
respondent has only filed a bare denial to the crucial averments made in the
particulars of claim.
[30] Even if I am wrong in this regard, I am fortified in my view that the application
for condonation should succeed on the basis that no prejudice will be suffered
by respondent. In fact, none has been demonstrated and even in argument
the Respondent’s Counsel, Ms Teko, conceded that it has not been
demonstrated that prejudice will be suffered if the condonatio n sought is
granted. In any event the respondent has fully defended the matter to the
extent of filing a plea and a special plea. So, in my view his rights are fully
protect in the sense that no judgment can be obtained or granted
clandestinely. The respon dent will be fully notified of every step taken in the
matter and therefore afforded an opportunity to respond there to
appropriately.
[31] Moreover, as was stated in the Supreme Court of Appeal Judgment of
Minister of Police v Miya the right involved is that of access to Courts as
enshrined in section 34 of the Constitution. As was stated in that judgment,
the interpretation of any legislation that restricts the right of access to Courts
must be purposive in nature, which is consistent with our constitutional values.
I am bound to follow that judgment, especially in the present factual matrix
I am bound to follow that judgment, especially in the present factual matrix
where no prejudice will be suffered and the respondent is defending the
13 para 28 of the judgment.
matter to the extent that it has filed a plea and a special plea. I am fortified in
my conclusion also by the preamble to Act no,40 of 2002, which clearly states
that the Bill of rights is the cornerstone of democratic South Africa, and the
State must respect, protect, promote and fulfil the rights in the Bill of Rights. In
the circumstances I am b ound not only by the Supreme Court of Appeal
Judgment but also by the very same legislative enactment upon which the
respondent relies to oppose the condonation application. Not all is lost to the
respondent as the applicant still has to prove its case in the ordinary way and
the respondent has all the opportunity in the world to vigorously defend its
rights and protect its interests.
[32] The issue of costs, no doubt, is in the discretion of the court and since a
condonation application is, by its very nature, an indulgence the applicant is
not entitled to costs although it has become successful in the application. As
the saying goes, it cannot eat its cake and still have it.
[33] In the result I make the following order:
(a) The applicant’s failure to timeously comply with the provisions of
section 3(1), read with sections 3(2)(a) and (b) of the Institution of
Legal Proceedings against Certain Organs of the State Act no. 40 of
2002 against the National Commissioner is hereby condoned and the
applicant is granted leave to pursue his claim against the respondent.
(b) The applicant’s failure to comply with the provisions of section 3(1),
read with sections 3(2)(a) and (b) of Act no. 40 of 2002 against the
Provincial Commissioner is hereby condoned and the a pplicant is
granted leave to pursue his claim against the respondent; and
(c) That there shall be no order as to costs.
__________________________________
T.A. NKELE
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the Applicant : Advocate Nyobole
Attorney for the Applicant : Nqoro Attorneys
Mthatha
Instructed by : Mgangatho Attorneys
Grahamstown
Counsel for the Respondent : Advocate AE Teko
Advocates’ Chambers
Attorney for the Respondent : State Attorney
Makhanda
Instructed by : Yokwana Attorneys
Makhanda
Matter heard on : 4th September 2025
Judgment delivered on : 23 October 2025