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compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT)
CASE NO.:EL 1262/2022
In the matter between:
NOTININA MATYHOLO 1st Plaintiff
MLUNGISI KILANA 2nd Plaintiff
and
MINISTER OF POLICE Defendant
JUDGMENT
MHAMBI AJ
Introduction
[1] This is an interlocutory application emanating from the main action,
instituted by the plaintiffs before this court. For the sake of brevity, beveritus
causa, I shall refer to the parties as they are referred in the main action.
[2] In the main action, both plaintiffs instituted a civil suit against the defendant
on 19 August 2022; their claim is that of unlawful arrest and detention, allegedly
due to their arrest and the subsequent detention by member s of the defendant
stationed at Mdantsane.
[3] The plaintiffs had alleged in their particulars of claim that the alleged
unlawful arrest and detention by members of the defendant, stationed at
Mdantsane, occurred on 2 November 2019 and at N[...] 1[...], Mdantsane , that
address, the plaintiffs regard as their home.
[4] The plaintiffs had further alleged in the particulars of claim that, during their
arrest, the police had no warrant for their arrest, and had no probable cause for
their arrest. Consequent to the all eged unlawful and wrongful arrest, the plaintiffs
alleged that they were released on 4 November 2019, and at or about 16:30,
without appearing in court, they were simply advised by the Police to go home and
consider themselves as being lucky.
[5] In this i nterlocutory application, “ this application” , the plaintiffs seek
condonation for the late filing of their notice in terms of section 3 of the Institution
of Legal Proceedings Against Certain Organs of State Act (Act 40 of 2002, the
“Act”), hereinafter referred to as “the Statutory notice”.
[6] This application is opposed by the defendant.
[7] It is apposite for me to state that the impugned statutory notice was issued by
the plaintiffs on 9 February 2022, before the main action was instituted. The
statutory notice was sent to the domicilium address of the National Commissioner
of the South African Police, and the plaintiffs have attached proof of postage in
this regard. There is no proposition or evidence that the defendant took heed to
respond to the statutory notice.
[8] In support of its application for condonation, the first plaintiff has averred
that:
“10. For the longest of time, I had been under stress which was caused by
combination of issues, but rating above them was incarceration with no
reason.
11. As a result of this trauma, I did not immediately focus on this issue/ case
against the respondent unti l I was advised by the counsellor after
completing my psychological sessions with her.
12. It is after her advice that I managed to discuss this matter with my sister
who advised that we need to consult with a lawyer so as to get assurance
of an attorney. She then went ahead and organized me my attorneys of
record who indeed confirmed that I have a case against the respondent”.
See paragraphs 9-12, page 32 of the bundle to this application.
[9] The 2nd plaintiff, in support of its condonation application, has averred that:
“9. (T)he reasons for the delay in this matter were as a result of events that to
a certain extent, it was beyond my control.
10. As it is reflected on the particulars of claim, I am working as a general
worker with no extensive knowledge of issues; in fact, I am illiterate.
11. I depend mostly from guidance from my family on a lot of things. Soon
after I was released from the cells , I left the township and stayed in my
localities at Ngqushwa, I was avoiding anything which had to do with
township.
12. After sometime, my family, in particular my niece who studies law at Fort
Hare advised me that I may have a case against the responden t he further
assisted me in getting the attorneys of record.
13. I immediately consulted with my lawyers and instructed him to initiate the
proceedings which I am told occurred on 9 February 2022”.1
1 See paras 9 – 13, at page 9 of this application bundle.
[10] The defendant opposed this application; in its answering affidavit, the
defendant accepts that the statutory notice was served on it; however, it avers that
the statutory notice was served after a period in excess of two years, a point that
appears to be common cause between the parties.
[11] The defendant’s grounds of opposition may be summarised thus: it alleged
that it will suffer prejudice if condonation is granted, as it will not be adequately
equipped to deal with its defence due to the period of time that elapsed between the
date of arrest and se rvice of statutory notice. The defendant further alleges that
adequate investigations, which would have happened had statutory notice been
served timeously, were not made as a result of the lapse of time and that has caused
its prejudice.
[12] The defendant, by the time it filed its answering affidavit, had already filed
its plea in the main action, and the issue of prejudice raised in the answering
affidavit was not raised in its plea, save to raise non -service of the statutory notice
as a special plea. Most surprisingly, the defendant in the answering affidavit admits
the arrest of the plaintiffs on the dates concerned. No comment has been made
about the alleged detention of the plaintiffs in the answering affidavit. The
prejudice complained of has not bee n explained in succinct and explicit terms, and
this court has not been put into confidence about what type of investigations the
defendant ought to have made had statutory notice been served timeously. In the
circumstances, I regard those facts as mere ba re denials not sufficient to constitute
a live issue for this court to determine.
[13] The issue to be determined by this court is whether condonation ought to be
granted as prayed by the applicant. In order to answer that, I now turn to deal with
the relevant legal framework in respect of this issue for determination.
[14] The legal requirements for the issue of statutory notice in respect of recovery
of a debt against an organ of state are dealt with in section 3 of the Act. Section 3
of the Act states that :
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 an organ of state in question a notice in
writing of his or her intention to institute legal proceedings in
question, or
(b) the organ of state in question has consented in writing to the
institution of the legal proceedings –
(1) without such notice; or
(11) upon receipt of a notice which does not comply which does not
comply with all the requirements set out in subsection (2).
(2) A notice must –
(a) Within six months from the date the debt became due, be
served on the organ of state in accordance with section 4 (1);
and
(b) Briefly set out –
(1) The facts giving rise to the debt
(11) such particulars of such debt as are within the knowledge of the
creditor.
[15] Subsection 4 of the Act says:
(a) If an organ of the state relies on a creditors failure to serve a notice in
terms of subsection (2) (a), the creditor may apply to a court having
jurisdiction for cononation 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 of the creditor; and
(iii) the organ of state was not unreasonable prejudiced by t he
failure.
[16] The question of what a debt is and when it is said to be due was answered
by the SCA in Truter and Another v Deysel2, it said:
“ …. ‘debt due’ means a debt, including a delictual debt, which is owing and payable. A
debt is due in this sense when the 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”
[17] In Drennan Maud and Partners v Towing Board of the Township of
Pennington3 , Harms JA says this about a debt :
“ In short, the word ‘debt’ does not refer to ‘ cause of action’; but more generally to the
‘claim’ …. In deciding whether ‘ debt’, or, put differently, what the ‘ claim’ was in the
broad sense of the meaning of the word”
2 2006 (4) SA 168 (SCA) at para 15.
3 1998 (3) SA 200 (SCA) at 212F-J
[18] The Constitutional Court in Links v MEC for the De partment of Health,
Northern Cape4, held that :
“ It is clear from section 3(4)(b) that condonation may not be granted where the creditor's
claim has prescribed.”
[19] In this case, it is common cause between the parties that the claims of the
plaintiff have not prescribed. This court has two issues to consider: first, whether
good cause exists for the failure to serve statutory notice timeously; secondly,
whether the defendant has been or is unduly prejudiced by the late service of
statutory notice. It is a matter of fact that the plaintiffs have a claim against the
defendant.
[20] In dealing with the requirements in terms of s 3(4) (b), the court in Madinda
v Minister of Safety and Security 5 , the court affirms that the standard of proof to
establish section 3(4) (b) requirements is not on a balance of probabilities but
rather, the ‘ overall’ impression made on a court which brings a fair mind to the
facts set up by the parties. Furthermore, these factors need to be considered in light
of the well-established principles for the grant of condonation.
4 2016 (4) SA 414 (CC) para 16
5 2008 (4) SA 312 ( SCA) at para 8.
[21] In Mlaudzi v Old Mutual Life Assurance Company South Africa Ltd 6 , the
court had the following factors to be considered when considering an application
for condonation:
“A full, detailed and accurate account of the causes of the delay and their effects must be
furnished as to enable the court to understand clearly the reasons and to assess the
responsibility. Factors which usually weigh with t his court in considering an application
for condonation include the degree of non -compliance, the explanation therefor, the
importance of the case, a respondent’s interest in the finality of the judgment of the court
below, the convenience of this court, a nd the avoidance of the unnecessary delay in the
administration of justice”.
[22] I now turn to apply the Madinda7 and Mlaudzi8 principles to the facts of this
case. I am satisfied that the explanation proffered by both plaintiffs as the reason
for the late filing of their statutory notice (s), respectively, creates, in overall a
reasonable and fair impression to the satisfaction of this court, which, viewed,
cumulatively, amounts to good cause for the timeous failure to serve the statutory
notice as quired by section 3 of the Act.
[23] On the basis of certainty and finality, which are key components to the
administration of justic e, it is convenient for all the parties in this matter that the
6 2017 (6) SA 90 (SCA) at para 26
7 Above n 5
8 Above n 6
main action be dealt with to finality and without any unreasonably delay. I am not
persuaded that the defendant has and or is prejudiced by the late service of the
aforesaid statutory notice(s ). The defendant has already filed its plea; the main
action has reached a stage of litis contestio.
[24] In compliance with rules and the practice directives of this court, the parties
have already held a conference and recorded a minute in terms of Rule 37 of the
Uniform Rules. Rule 37 minute has been filed as part of the record of this
application, which clearly indicates that the main action is trial -ready. Notably, in
the Rule 37 minute, the parties, among other things, recorded that there is no party
prejudiced by non-compliance with the court’s rules. In the circumstances, even if
the issue of late filing of the statutory notice remains an issue for determination,
there seems not to be a substantial prejudice to the defendant as far as trial
readiness and preparation are concerned. Even though, in the answering affidavit,
the defendant has admitted the alleged arrest of the plaintiffs, but in the Rule 37
minute, the arrest and detention are denied, which is an issue to be resolved by the
trial court.
[25] The claims of the plaintiffs are crucial and important to be resolved by the
trial court, as they affect their constitutional right to freedom and liberty, and
further to not being subjected to an inhuman and degrading manner. In which
case, the arrest and the subsequent detention of any individual are inconsistent with
the aforesaid constitutional rights, in the event it is found to be wrongful and
unlawful, as the plaintiffs seek determination in that regard. The plaintiffs need to
be afforded an o pportunity to be heard as far as the main action is concerned and
not to be precluded by procedural issues in having their matter finalised.
[26] Consequently, this application should succeed. I am not persuaded to follow
the general principle that costs s hould follow the results, due to the circumstances
of this case. The plaintiffs are the ones seeking the indulgence and therefore,
despite opposition to their application, the defendant need not be penalised with a
costs order.
Order
[27] In the result, the following order is issued:
1. The defendant’s special plea to the plaintiff's claim is dismissed.
2. The late filing of the plaintiff's statutory notice (s) in terms of section
3 of Act 40 of 2002 is condoned.
3. Each party is ordered to pay it’s own costs.
M MHAMBI
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the Plaintiff s : Adv S. Sintwa
Instructed by : SS JAFTA & ASSOCIATES INC
No 52 Sprigg Street
Mthatha
Counsel for the Defendant : Adv V Jozi
Instructed by : THE STATE ATTORNEY
17 Fleet Street
East London
Heard on : 25 September 2025
Judgment Delivered on : 06 November 2025