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EKURHULENI METROPOLITAN MUNICIPALITY Third
Respondent
This Judgment was handed down electronically and by circulation to the parties’ legal
representatives by way of email and shall be uploaded on caselines. The date for hand
down is deemed to be on 15 December 2025.
JUDGMENT
KEKANA AJ
Introduction
[1] This is an application brought by the applicants seeking condonation for their late
filing of the notice in terms of section 3(4) of the Institution of Legal Proceedings
Against Certain Organs of State Act1 (the Act). The third respondent opposes the
condonation application and seeks a dismissal thereof with costs.
Background
[2] The facts can be summarised as follows:
The applicants alleges t hat they were unlawfully arrested and assaulted by
employees of the third respondent on 11 July 2016 and unlawfully remanded in
custody for a period of nine months. According to the applicants they were
initially of the belief that they were arrested by employees of the first respondent
(Ministry of Police), who is also the first defendant in the main action. As result
of this incorrect belief, on 10 July 2019 the applicants instituted action for
damages arising from amongst others the alleged unlawful arrests and assault
against the first respondent and the second responde nt (Director for Public
Prosecutions) but not the third respondent.
1 Act 40 of 2002 (the Act).
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[3] According to the applicants i t was only later in May 2020 , upon perusal of the
docket and the enclosed arresting statement that it became aware of the correct
identity of the arresting officers that they (arresting officers) were not in the
employ of first respondent but rather were in the employ of the third respondent.
The applicants then instituted a third -party notice and served it on the third
respondent and later served its letter in terms of section 3 of the Act. In retort the
third respondent raised a special plea citing non-compliance with the section 3
notice for reasons of it being late and that the organs of state in this matter have
not given consent for issuing of summons as they were out of time and the
applicants are in contravention of Section 3 of the Act.
[4] The applicants’ section 3 notice was followed by an application to join the third
respondent in the action proceedings, the matter which was presided over by my
sister Mahalelo J. Mahalelo J ordered that2:
1. this matter is postponed sine die;
2. the applicants are granted leave to bring an application f or
condonation;
3. costs reserved.
Contentions by the parties
[5] The applicants argue that the claim has not prescribed, as summons was issued
before the matter reached a point of prescription.3 Again, that the applicants only
became aware of the correct identity of the arresting officer on 3 May 2020 4, it
was at this stage that the applicants instituted a third -party notice and served it
on the third respondent and later served its letter in terms of section 3 of the Act
on the third respondent.5 Further that the statutory requirement is that the notice
must be served on the organs of state within six (6) months from the date in
which the debt became due.6
2 Court order by Mahalelo J.
3 Para 21 of the applicant’s written submissions.
4 Para 11 of the applicant’s written submissions.
5 Para 12 of the applicant’s written submissions.
5 Para 12 of the applicant’s written submissions.
6 Para 42 of the applicant’s written submissions.
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[6] The third respondent contends that t he applicants knew the identity of the
arresting officers in October 20167, even if it can be according to the applicants,
in February 2020 , the applicants’ claims against the third respondent have
become prescribed. The third respondent further contends that the applicants’
have not shown good cause for their inexplicable failure to timeously notify the
third respondent of the intention to institute proceedings against it and their
subsequent failure to timeously bring an application for condonation. Also, that
the joinder application did not interrupt prescription.
Legal principle and analysis.
[7] Section 3 of the Institution of Legal Proceedings Against Certain Organs of State
Act (the Act) states that:
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 legal
proceedings without such notice.
(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
(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.”
[8] Section 3(4) of the Act states that:
7 Para 15 of the respondent’s head of argument.
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(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…”
[9] Madinda v Minister of Safety and Security is a cornerstone case where the
Supreme Court of Appeal (SCA) clarified the standard for condonation under the
Act 40 of 2002 .8 The powers of the court were cemented in that according to
section 3(4)(b) the court may grant an application for condonation 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.
[10] All three requirements as set out in section 3(4) (b) must be met as they apply
conjunctively.9 The crisp issue s for determination are whether the applicant’s
claim had prescribed, subserviently whether the applicant has shown good cause
for their failure to deliver a notice to the organ of state responsible for the cause
of action within the time prescribed in the Act.
[11] Prescription begins to run from the moment the debt becomes due. A debt is
"due" when:
“The creditor has knowledge of the identity of the debtor, and
The creditor has knowledge of the facts from which the debt arises (i.e., the
creditor is aware of all the facts necessary to institute a claim)”10
[12] Prescription can also be interrupted by “judicial operation” with formal service of
a legal process (e.g. summons ). The court does not agree with counsel for the
applicants that the issuance of summons (combined summons) on 10 July 2019
against the first and second respondent interrupted prescription of a claim
8 Madinda v Minister of Safety and Security 153/07) [2008] ZASCA 34; [2008] 3 All SA 143 (SCA);
2008 (4) SA 312 (SCA) (28 March 2008).
9 Para 16, Madinda Supra.
10 Sections 12(1), (2) & (3) of the Prescription Act 68 of 1969 (as amended).
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against the third respondent. No summons was issued against the third
respondent and consequently, the applicants’ submission is found wanting.
[13] The applicants admitted that the police officer who was assisting the first
applicant with the laying of the complaint did mention to the applicants or at least
the first applicant of the fact that they were not arrested by members of the South
African Police Services (SAPS) but by the metro police officers. It would appear
to me that it was at stage that it can be said that the applicants had what
constitutes “minimum facts that are necessary to institute action ”11 against the
third respondent. The submission by the applicants’ counsel of the knowledge
not being trusted cannot be sustained. Since the applicants already had a lawyer
assisting them, something more could have been done to verify the authenticity
of the information if it was not trusted.
[14] The applicants rely on Links v Member of the Executive Council, Department
of Health, Northern Cape Province12 which state that:
“…belief on its own is insufficient. Belief that happens to be true is also insufficient.
For there to be knowledge, the belief must be justified”.
[15] The applicants’ reliance on this case is misplaced in that from the time of laying
a complaint, to be specific in October 2016, the applicants were told that the
arresting officers were from the third respondent. Once the y were made aware
of the arresting officers, the existence of reasonable belief lapsed, and this
triggered the commencement of the knowledge of facts. Reasonable belief and
knowledge of facts cannot be in one room. Reasonable belief ceases to exist as
soon there is now knowledge of facts. The applicants failed to demonstrate or at
least show this court what they did with this knowledge. The conclusion by this
court is that the applicants had knowledge of who the arresting officers were in
October 2016. Since there has not been action against the third respondent the
October 2016. Since there has not been action against the third respondent the
claim against the third respondent has prescribed.
11 Minister of Finance v Gore 2007 (1) SA 111 (SCA) 119J-120A.
12 [2016] ZACC 10.
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[16] It is now appropriate to return to second requirement of whether good cause
exists for the failure by the creditor. It has been emphasised that "good cause"
under Section 3(4)(b) has two components:
i) a reasonable explanation for the delay; and
ii) that it is in the interests of justice to grant condonation13.
[17] Crucially, these factors are not a mere checklist where a strong score in one can
compensate for a failure in another. The courts consistently hold that the
explanation for the delay and the prospects of success are the two most critical
factors, and they must both be addressed satisfactorily.
[18] There has not been any explanation furnished by the applicants for the delay just
so to attempt to nullify any culpability on its part. The applicants’ submission that
they had no knowledge of the creditor cannot be true as it has already been
established that in October 2016 the applicants or at least the first applicant was
told and made aware that the arresting officers were in the employ of the third
respondent. It will appear to this court that the applicants were very careless on
how they dealt with this shared information. The applicants’ ignorance of this
shared information is a serious concern.
[19] The applicants had three years between October 2016 (the date the information
was shared) and 2019 July (the date on which the combined summons was
issued on the first and second respondents) to ascertain the correctness and
accuracy of this shared information but failed to do so. Again, there has not been
any attempt by the applicants to give an explanation as to why they took this
posture towards this shared information. Assuming, of course without concluding
that the applicants did not trust the police officer who shared this information, the
applicants did nothing or at least no submissions were made before this court of
an attempt by the applicants to establish the veracity thereof.
an attempt by the applicants to establish the veracity thereof.
[20] As regards t he interests of justice , it must be determined with reference to all
relevant factors. However, some of the factors may justifiably be left out of
consideration in certain circumstances. For example, where the delay is
13 Madinda supra.
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unacceptably excessive and there is no explanation for the delay, there may be
no need to consider the prospects of success. If the period of delay is short and
there is an unsatisfactory explanation but there are reasonable prospects of
success, condonation should be granted. However, despite how the applicants
may feel about the case and what they allege the applicants may have gone
through after the arrest, those alleged merits are illusory because the claim has
prescribed. Where a claim has prescribed, the issue of prospects of success is
decided conclusively against the applicant, making the granting of condonation
impossible.
[21] The delay in this case is not a short delay, there is no explanation for the delay
given by the applicant. This is a fatal flaw at the outset. An application for
condonation is, at its heart, a plea for the court's indulgence for a party's own
failure to comply with the rules. Without a full, reasonable, and convincing
explanation, the court has no basis to grant that indulgence. A party cannot
simply ignore this requirement. As was stated by the Constitutional Court in Van
Wyk v Unitas Hospital and Another that:
…“to grant condonation after such an inordinate delay and in the absence of a
reasonable explanation, would undermine the principle of finality and cannot
be in the interests of justice.”14
[22] Assuming though not correct that the applicants only became aware of identity
of the third respondent in May 2020, there is still no explanation from the
applicants why they only serve the notice on the third respondent in November
2022. More than two years after they had knowledge of the identity of the debtor.
[23] Even if there is no explanation for the delay or maybe a reasonable explanation
the court should still examine prospects of success. In this case matter has
prescribed. Once a debt has prescribed, the debtor (third respondent) acquires
a complete and absolute defense. Therefore, if t he main claim which the
a complete and absolute defense. Therefore, if t he main claim which the
applicants are trying to pursue (despite the delay) has indeed prescribed as
14 Van Wyk v Unitas Hospital and Another (CCT 12/07) [2007] ZACC 24; 2008 (2) SA 472 (CC); 2008
(4) BCLR 442 (CC) (6 December 2007).
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concluded in this case , there are definitively no prospects of success on the
merits. The applicant's case is legally unenforceable.
[24] The applicants in their heads of argument cites few paragraphs from Madinda,
to which this court agrees with , I confine for now to two of those important
quotations:
… “ Moreover, what can be achieved by putting the court to the task of
exercising a discretion to condone if there is no prospect of success?”
“As I interpret the requirement of good cause for the delay, the prospects of
success are a relevant consideration.”15
[25] With no prospects of success, it would be irrational and contrary to the
administration of justice for a court to grant condonation. Granting condonation
would only serve to waste the court's and the other party's time and resources
on a case that is doomed to fail.
[26] In arriving at this conclusion, I have not given much weight to the issue of
prejudice. Explanation for the delay and good prospects of success are essential.
The absence of both would "ordinarily be fatal," and the question of prejudice
would not salvage the application.
[27] The third respondent makes contentions about the joinder application and how it
does not interrupt prescription. To extent that this court agrees with the
submissions made and the authorities relied on, this court wi ll not delve much
into this aspect as it was not argued by the applicants. The court will in passing
note the contentions made by the third respondent and conclude thereon
affirmatively.
Conclusion
15 Para 51 of the applicant’s written submissions.
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Counsel for the third respondent
Adv L Segeels-Ncube instructed by Webber Wentzel
Sanda.Sithole@webberwentzel.com / Shabalala@webberwentzel.com
011 530 5379/5313
Date of Hearing: 11 November 2025
Date of Judgment: 15 December 2025