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Bronkhorst and Another v Minister of Police and Another (5499/2021) [2026] ZALMPPHC 8 (19 January 2026)

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Brief Summary

Tort — Unlawful arrest and search — Plaintiffs claiming damages for unlawful arrest and search conducted by police — Defendants raising special plea of non-compliance with Section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act — Court finding that plaintiffs had complied with the notice requirements and that the defendants' actions constituted unlawful conduct — Damages awarded to plaintiffs.

Comprehensive Summary

Summary of Judgment


1. Introduction


These proceedings were a civil action for delictual damages in the High Court of South Africa, Limpopo Division, Polokwane. The plaintiffs, Eugene Bronkhorst (first plaintiff) and Jacob Jacobus Francois Malan (second plaintiff), sued the defendants, the Minister of Police (first defendant) and Colonel Christopher Mabasa (second defendant), claiming compensation arising from an arrest effected on 22 July 2019 and a search conducted under warrant on 23 July 2019, which the plaintiffs characterised as unlawful.


The procedural history reflected that summons was issued and served, the defendants entered appearance to defend, and delivered a plea that included a special plea based on alleged non-compliance with section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002. The plaintiffs replicated, contending that the “debt” only became due when the criminal charges against them were withdrawn, alternatively that they only then acquired knowledge of the facts giving rise to the debt. Although the plaintiffs’ opening address maintained compliance with section 3, they brought an application for condonation at the end of the trial; it was not opposed, and the court reserved judgment both on condonation and the merits.


The general subject-matter concerned the lawfulness of the plaintiffs’ arrest and detention, the pleading and lawfulness of a warranted search (including a search of a river adjacent to the estate), and, dispositively, whether the plaintiffs’ claims were barred due to late statutory notice and lack of grounds for condonation.


2. Material Facts


On 15 June 2019, the second defendant, accompanied by other SAPS members, attended Blyde Wildlife Estate (a gated security estate with access control) to interview Ms Charlotte Sunby, who resided there, in relation to a fraud matter being investigated. At the gate, security personnel contacted Ms Sunby, who queried whether the police had an arrest warrant. The police did not produce a search warrant, and the plaintiffs became involved at the gate. It was common cause that the police ultimately left without gaining access to enter the estate to proceed with their investigation.


The parties’ versions differed as to the manner and tone of the interaction and whether the plaintiffs and others actively obstructed the police. However, the court treated as materially established that the plaintiffs demanded a warrant or the owner’s consent before permitting access through the gate, and that the police could not gain access into the estate’s common property as a result of the refusal at the gate.


Following the gate incident, the second defendant opened a criminal case of defeating the administration of justice and applied for warrants of arrest against the two plaintiffs (and Ms Sunby). Warrants of arrest were issued by the magistrate at Lenyenye on 18 June 2019.


On 22 July 2019, pursuant to arrangements between the parties’ attorneys and the police, the plaintiffs attended at Hoedspruit SAPS with their attorneys and were arrested and charged with defeating the ends of justice. Before their court appearance, they were taken to the estate, and the second plaintiff’s house was searched under a warrant; nothing incriminating was found. They were returned to the police station, taken to court, and granted bail of R5 000 each.


On 23 July 2019, the second defendant returned to the estate with SAPS members including a dog unit and divers, and a search was conducted in the river bordering the premises of the first plaintiff; nothing was found. It was common cause that the first plaintiff’s house was not searched.


On 4 December 2020, the criminal charges against the plaintiffs were withdrawn on instructions from the Office of the Director of Public Prosecutions after the plaintiffs made representations. The plaintiffs delivered their section 3 notice on 12 May 2021 and served it (by registered mail) on 13 May 2021.


A further material pleading fact was that, in the particulars of claim, the first plaintiff did not claim for the alleged unlawful search conducted on 22 July 2019, and the court found that the second plaintiff did not plead a damages claim founded on the alleged unlawful search of his home on 22 July 2019.


3. Legal Issues


The court was required to determine, first, whether the plaintiffs had complied with section 3 of Act 40 of 2002, and if not, whether they had shown a basis for condonation under section 3(4). This required the court to decide when the “debt” became due for purposes of section 3(2)(a), whether the plaintiffs had the requisite knowledge of the relevant facts earlier than they alleged, and whether “good cause” and lack of unreasonable prejudice were established.


In addressing condonation, the court considered the plaintiffs’ prospects of success on the merits, as these bore on whether granting condonation would be appropriate. This required determination of issues that involved the application of law to fact, including whether the arrest warrants were allegedly procured on false information and whether the police were lawfully entitled to access the estate without a warrant, as well as whether any search complained of was properly pleaded and whether the river search infringed privacy rights.


The dispute therefore engaged mixed questions of law and fact, particularly the legal characterisation of the plaintiffs’ conduct at the access gate, the scope of lawful police powers to enter “premises” for investigation, and the procedural consequences of pleadings that did not encompass a damages claim for an alleged unlawful search.


4. Court’s Reasoning


The court approached the matter through the statutory framework of section 3 of Act 40 of 2002, which requires notice within six months of the date on which the debt became due, subject to the knowledge provisions in section 3(3), and permits condonation under section 3(4) if three requirements are satisfied. The court accepted that prescription was not in issue because summons had been served within three years, but emphasised that condonation is not automatic, even if unopposed, where a special plea has created a dispute requiring adjudication.


In assessing “good cause”, the court applied the approach stated in NMZ obo SFZ v MEC for Health and Social Development of the Mpumalanga Provincial Government (Case no 1149/2020) [2021] ZASCA 184 (24 December 2021), namely that good cause encompasses factors including the delay, prospects of success, the explanation advanced, bona fides, and whether other parties contributed to the delay. The court reasoned that it would be futile to grant condonation where the applicant had no reasonable prospects of success, and noted that the condonation application was brought at a very late stage, after evidence on the merits had been led, enabling the court to assess prospects in a concrete manner.


On the unlawful search component, the court drew a distinction between what was pleaded and what was ventilated in evidence. Relying on Molusi v Vogens N.O and Others 2016 (3) SA 370 (CC) and related authority cited in the judgment, the court held that pleadings define the issues for the parties and the court, and it is impermissible to decide a claim not pleaded merely because evidence was canvassed without objection. The court accepted that, while a party may sometimes rely on an unpleaded issue, this could not be extended to an unpleaded claim for damages. The court found that the second plaintiff did not plead a claim for damages arising from the 22 July 2019 search of his home. Regarding the first plaintiff, the court noted his concession that his house was never searched, and held that the river search occurred in a space treated as common or accessible area within the estate context, such that he could not claim a privacy infringement on that basis as framed in the case.


Turning to the arrest and detention claim, the plaintiffs’ pleaded case was that the arrest warrants were obtained on false information and were therefore invalid. The court considered the evidence of the prosecutor witness who described the procedure for issuing a warrant and testified that she required the police to rewrite their statement on a bench pad before she was satisfied to approach the magistrate. The court accepted that she was satisfied that an offence of defeating the administration of justice had been committed and proceeded to apply for the warrants.


Central to the merits assessment was whether the plaintiffs were entitled to refuse the police access to the estate. The court applied section 26 of the Criminal Procedure Act 51 of 1977, which permits warrantless entry onto “premises” to interrogate a person who may furnish information regarding an offence, subject to the proviso that police may not enter a private dwelling without the occupier’s consent. The court reasoned that an access-controlled security estate constitutes “premises” and is distinct from the individual private dwellings within it. On that basis, the court concluded that the plaintiffs were not entitled to deny police access to the estate’s common property for investigative purposes, and that estate rules could not override national law. The refusal to allow entry through the gate, on the court’s reasoning, supported the conclusion that the plaintiffs obstructed the police in the execution of their lawful duties and therefore lacked reasonable prospects on the claim that the arrest was founded on a false basis.


On the notice issue, the court rejected the plaintiffs’ explanation that the debt became due only on 4 December 2020 when charges were withdrawn, or that only then did they obtain knowledge of the relevant facts. The court held that the debt, whether framed as unlawful arrest/detention or unlawful search, became due on the dates when the arrest and search occurred. It further reasoned that the plaintiffs were legally represented at arrest and during the search and court processes, that they were aware of the charge they faced (including the conduct alleged, as reflected in an annexure to the charge sheet), and that they had made representations to the DPP, which indicated knowledge of the relevant facts well before the withdrawal date. On this reasoning, the court found that the plaintiffs’ assertion of lack of knowledge until withdrawal was not bona fide and did not constitute good cause.


Having found both a lack of good cause and a lack of reasonable prospects of success, the court dismissed the condonation application. It then upheld the special plea of non-compliance with section 3 and dismissed the plaintiffs’ claims.


5. Outcome and Relief


The court dismissed the plaintiffs’ application for condonation for failure to comply with section 3 of Act 40 of 2002.


The court upheld the defendants’ special plea that the plaintiffs failed to serve the required statutory notice timeously and dismissed the plaintiffs’ action.


The plaintiffs were ordered to pay the defendants’ costs.


Cases Cited


Molusi v Vogens N.O and Others 2016 (3) SA 370 (Constitutional Court)


Minister of Safety & Security v Slabbert [2009] ZASCA 163; [2010] 2 All SA 474 (Supreme Court of Appeal)


NMZ obo SFZ v MEC for Health and Social Development of the Mpumalanga Provincial Government (Case no 1149/2020) [2021] ZASCA 184 (24 December 2021)


Legislation Cited


Constitution of the Republic of South Africa, 1996 (including sections 10 and 12 as pleaded, and section 2 as referenced in the pleadings)


Criminal Procedure Act 51 of 1977 (section 26)


Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 (section 3, including section 3(1)–(4))


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The court held that the plaintiffs’ “debt” for purposes of section 3 of Act 40 of 2002 became due when the arrest and searches occurred in July 2019, not when the criminal charges were withdrawn in December 2020. It held that the plaintiffs had, or reasonably could have acquired, the knowledge required by section 3(3) well before the withdrawal date, particularly given their legal representation and the content of the charge documentation and their representations to the DPP.


The court held that the plaintiffs failed to establish good cause for late notice and that their explanation for delay was not bona fide. In assessing prospects of success, the court held that the plaintiffs had no reasonable prospects on the pleaded claims, including because the first plaintiff’s home was not searched and the river search did not establish an actionable privacy infringement on the case advanced, and because the second plaintiff had not pleaded a damages claim arising from the search of his house on 22 July 2019.


The court further held, by application of section 26 of the Criminal Procedure Act 51 of 1977, that police powers to enter “premises” for investigative purposes did not require a search warrant for entry to the estate’s common property, and that the plaintiffs were not entitled to deny the police access to the estate on the basis advanced. On that footing, the arrest warrants were not treated as having been procured on falsehoods in the manner alleged, and the claim lacked prospects.


LEGAL PRINCIPLES


The judgment applied the principle that statutory notice under section 3(2)(a) of Act 40 of 2002 must be served within six months of the date the debt becomes due, and that the debt is not regarded as due until the creditor has knowledge of the identity of the organ of state and the facts giving rise to the debt, subject to the objective “reasonable care” standard in section 3(3).


The judgment applied the principle that condonation under section 3(4) is discretionary and requires satisfaction of the statutory prerequisites, including that good cause exists and that the organ of state is not unreasonably prejudiced; the absence of opposition does not relieve an applicant of the burden to establish these requirements where a special plea has raised the issue.


The judgment applied the principle that the assessment of good cause includes consideration of the prospects of success on the merits, the explanation for delay, and the applicant’s bona fides, as articulated in NMZ obo SFZ v MEC for Health and Social Development of the Mpumalanga Provincial Government (Case no 1149/2020) [2021] ZASCA 184 (24 December 2021).


The judgment applied the principle that pleadings define the issues for adjudication, and that courts should decide the disputes raised in the pleadings; a party cannot seek to establish a different case at trial, and evidence led without objection does not convert an unpleaded claim into a claim properly before the court, as discussed with reference to Molusi v Vogens N.O and Others 2016 (3) SA 370 (Constitutional Court) and related authority cited.


The judgment applied the statutory distinction in section 26 of the Criminal Procedure Act 51 of 1977 between entry onto “premises” for interrogation in the investigation of an offence (which may be done without a warrant) and entry into a private dwelling, which requires the occupier’s consent, and treated access-controlled estate common property as falling under “premises” rather than a private dwelling for purposes of this distinction.

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE

Case No: 5499/2021
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: Yes
DATE: 19 January 2025
SIGNATURE:

In the matter between:-

EUGENE BRONKHORST FIRST PLAINTIFF

JACOB JACOBUS FRANCOIS MALAN SECOND PLAINTIFF

AND

THE MINISTER OF POLICE FIRST DEFENDANT

COLONEL CHRISTOPHER MABASA SECOND DEFENDANT

This judgment was handed down electronically by circulation to the parties'
representatives by email. The date and time of hand -down is deemed to be
19/01/2026 at 10H:00

JUDGMENT

Mashifane AJ

INTRODUCTION

1. The plaintiffs issued summons against the defendants claiming compensation
for damages they allege to have suffered because of the warranted arrest which took
place on 22 July 2019 and the unlawful warranted search whi ch was carried out on
23 July 2019.

2. The plaintiffs issued and served their summons and the defendant having
entered appearance to defend pleaded to the particulars of claim and raise a special
plea of non-compliance with Section 3 of the Institution of Legal Proceedings Against
Certain Organs of State Act 40 of 20021.

3. The plaintiffs filed a replica to the defendant' special plea and denied that
there was a non -compliance alleging that the date upon which the debt arose was
the date on which charges were withdrawn against the plaintiff. In the alternative
they pleaded that they only acquired knowledge of the relevant facts on 4 December
after charges were withdrawn.

4. In their opening address the plaintiffs repeated that the notice in term of
Section 3 was issued within six months from the date on which the debt beca me due.
However, at the end the trial they brought an application for condonation requesting
the Court to condone their non -compliance. The application was not opposed by the
defendants and judgment was reserved on both application and the action.

SUMMARY OF EVEIDENCE

5. First witness was Mr Jacob Jacobus Francois Malan, the S econd plaintiff in
this matter. He testified that on 15 June 2019 he was residing at Hoedspruit within
the estate knowns as Blyde Wildlife Estate 2 and was the chairperson of the board of
directors of estate. He was phoned by the estate manager who informed him that
there was a problem at the gate, and he think it is the police. He went to the gate and

1 Section3 notice
2 Estate

found the second defendant speaking to the securi ty officer. The second defendant
said that he wanted to see Ms Sunby, a resident of the estate.

6. The security officer wanted to see the search warrant and the police said that
the second defendant have any warrant. The security officer said that his mot her is a
prosecutor and he phoned her. The security's mother and the second defendant
talked for a long time. The second defendant was in company of two other police
officers and only the ether two identified themselves upon request by the witness.

7. The witness then phoned the first plaintiff. The reason he phoned him was
because his wife was a lawyer and asked him if he can come and listen to the story.
He arrived while the second defendant was still on the phone. The second defendant
asked the first plaintiff if he was a lawyer and he said to him that his wife is a lawyer
and they can call her for assistance. They realised that they were not going to win
and the police asked if they could enter. The answer was that they can't stop them
from entering and the police boarded their motor vehicle and left. He denied that they
obstructed the police or prevented them from gaining access into the estate.

8. On 19 July 2019 while he was around Bushbuckridge he received a call from
the estate manager informing him that there was a group of people who wanted to
enter the premises. He phoned the lawyers who then talk with the second defendan t
and arranged that the witness and the first plaintiff should report at the police station
on Monday 22 July 2019.

9. On Sunday he consulted with his legal representative and Monday morning
they went to the police station in company of their legal repres entatives. They were
charged with an offence of defeating the ends of justice. He was not certain if they
were presented with warrant of arrest, but he testified that their lawyers handled
everything. Their rights were read to them and informed of the reas on of the charged

everything. Their rights were read to them and informed of the reas on of the charged
they were facing. The police demanded the firearm of Mr Frikoff, one the residents of
the estate. What the witness knows about this firearm is that at one stage he
accompanied Mr Frikoff to the police station to renew his firearm permit.

10. After they were charged at the police station they left to his house and on
arrival the police gave the search warrant to his attorney. He was not informed what
was the purpose of search and the type of crimes they were suspected of committing
or havi ng committed. The first plaintiff was present when the witness' house was
searched but they never went to his house. After the search they went back to the
police station, and they were detained in the holding cells. They were later taken to
court and granted bail of RS000.00 each.

11. Under cross examination he testified that they told the police that they cannot
open the gate for them to enter because they do not have powers to do so. When
confronted with part their particulars of claim stating that the plaintiffs informed the
second defendant and his cohorts that access cannot be granted without the
permission of the owner of the stand or without a search warrant his response was
that they said he can open it himself, they can't do it for him. When asked why he did
not open for the police as they have identified themselves, he answered that the
security officer called his mother who is a prosecutor and she advised that the police
should have a search warrant.

12. The second witness was Mr. Eugene Bronkhorst. the first plaintiff who at the
time of the incident he was one of the residents of the estate. On 15 June 2019 he
was summoned to the gate by the second plaintiff and on his arrival the second
defendant asked him if he is a lawyer. He replied that he was not but his wife. He
basically confirmed the evidence of the second plaintiff.

13. On the morning of 22 July 2019, they went to Hoedspruit police station as
arranged between their attorneys and the police. T hey were charged with an offence
of defeating the ends of justice and thereafter left to the estate with the police and
their attorneys. On their arrival the house of the second plaintiff was searched. His

their attorneys. On their arrival the house of the second plaintiff was searched. His
house was not searched. Nothing unlawful was found . On their way back to the
police station the second defendant made a remark that the DFO (Designated
Firearm Officer) tipped off the plaintiffs.

14. On 23 July 2019 the second defendant accompanied by the other police
officer and divers arrived at the es tate and went to conduct a search in the river. He

testified that his house was not searched. His house was situated along the
riverbank and he believe that his ownership extend to the middle of the river.

15. The third witness was Ms Rene Roux who at the time of the incident was the
Senior Public Prosecutor stationed at Lenyenye Magistrate's court. She was
presented with an application for warrant of arrest by the second defendant she
signed as a prosecutor. She denied that the warrant of arrest was issue d based on
affidavit of the second defendant on page 17 -18 of the trial bundle. She testified the
allegations of racial slur and crimen injuria were not contained in the statement and
she gave the police a bench pad to rewrite their statement and once done she then
applied for the warrant of arrest.

16. At the later stage the docket was presented to her and she believed there was
no case, but the second defendant was not happy, she decided to approach the
DPP's office for decision. She fully explained the procedure followed when the
warrant of arrest is applied for. She will receive the docket and go through the
statements to see if an offence was committed. Only when she satisfied, she will
then approach the magistrate in chambers for authorisation of the warrant.

EVIDENCE OF THE DEFENDANTS

17. The first witness for the defendants was Lindiwe Vaneza Mondlane a
Constable in the employ of the first defendant who was stationed at Giyani police
station. On 22 July 2019 she was went to Hoedspruit SAPS to assist with the arrest
of the plaintiffs. The plaintiffs arrived at the police station with their attorneys they
were charged and take to court for appearance. Her duty was to complete the notice
of rights and read them to the plaintiffs. She info rmed them that they were arrested.
She did not have the arrest warrant with her. The plaintiffs were taken to court and
granted bail.

18. The second witness was Thabiso Mangena, a constable in the employ of the

granted bail.

18. The second witness was Thabiso Mangena, a constable in the employ of the
first defendant, he testified that on 15 Jun e 2019 he was at Hoedspruit police station
when the second defendant and Sergeant Chabalala requested him for a backup. He
left with them to Blyde Estate. On arrival they found the security officers at the gate

and the second defendant informed them that t hey were going to No 3 […] belonging
to Charlotte and asked for permission to enter. The security officer said that
Charlotte instructed them not to open for police officers.

19. Suddenly appeared a White male who requested for search and arrest
warrant. the second defendant told him that they were there to investigate a case
and looking for Charlotte. Then appeared the second plaintiff who told them that
even if they are police officers, they can't just go in. The first plaintiff said that he was
an attorney of Charllotte and requested for appointment certificate which they gave
him. He wanted to take photo but they refused. He then started to speak in a South
African language that the witness could not understand, and he threw them on the
ground.

20. Then many cars driven by White males started to arrive and the second
defendant requested that they should withdraw instead of causing trouble. According
to him one car blocked the road.

21. The second defendant took the stand and testified that on 15 June 2019 he
was in the employ of the first defendant and by then he had 29 years' experience in
the South African Police Service. He left Giyani for Hoedspruit SAPS in th e company
of Sergeant Chabalala. He requested Constable Manganye to accompany them to
Blyde Estate to conduct investigation. He was investigating a case of fraud and he
wanted to interview Ms Charlotte Sunby who was a resident of the Estate.

22. On arrival at the Estate they introduced themselves to the security officers as
police officers and produced their appointment certificates. They informed them that
they were there to see Charlotte and security officers then communicated with
Charlotte through intercom. She told the security officers that she did not expect any
visitors and asked if they have warrant of arrest. They replied that it was not
necessary because it was family matter between Charllotte and Nelson.

necessary because it was family matter between Charllotte and Nelson.

23. A group of White males arrived having firearms and asked who they were and
they replied by saying they are police officers and on demand they produced their
appointment certificates. He then said that one man who was sitting in court said that

he was the attorney for the person they were loo king for and they can't access the
place without warrant. They then told him that they were there not to arrest but to
conduct investigations and that with or without warrant they are entitled to enter.

24. The plaintiffs disrespected the police by throwi ng down their appointment
certificates. The first plaintiff went to the state vehicle and sat on top of the bonnet
and started to insult them. He phoned the higher authority and was advised to go
back and open a case of obstruction of justice which they did. They received legal
advise that they should apply for warrant of arrest and they did so. During the cause
of their investigations, they received an information that there were some firearms on
the estate and they had to investigate same.

25. While they were in the process of executing the arrest warrant the first
plaintiff's wife phoned and said that they wi ll bring them. On 22 July 2019 they were
brought to Hoedspruit police station by their attorneys. Their attorneys refused that
they be locked up. They then took fingerprints and they appeared in court which
granted them bail.

26. During cross-examination he testified that page 17 and 18 of the trial bundles
was an additional statement and in the additional statement you don't repeat what is
mentioned in the initial statement. In replied to the statement by the plaintiff's legal
representative that Mr. Bron khorst was not charged with impersonating an attorney,
he said that the Public Prosecutor or Senior Public Prosecutor is the senior
investigator and decide on the charges.

27. He confirmed that he is the one who applied for arrest and the search warrant.
He was not certain whether there was a search conducted on 22 July 2019 at the
house of the second plaintiff. During the questioning by the Court, he confirmed that
the house of the second plaintiff was searched. He testified that that the attorney
present interfered a lot with their search.

COMMON CAUSE ISSUES

28. On 15 June 2019 the second defendant in company of Sergent Tshabalala
and Constable Manganye visited the Estate for the purpose of interviewing Ms
Charlotte Sunby in relation to a fraud case in which the complainant was Nelson.
Upon arrival at the gate Charlotte was contacted and she asked if they had an arrest
warrant. The first plaintiff arrived and requested for a search warrant. He told the
police that without a warrant or the per mission of the owner of the house he can't
grant them a permission. He contacted the first plaintiff who also on arrival shared
similar sentiment. Other people arrive at the gate and the police eventually left
without gaining access to conduct the investigations.

29. The second defendant proceeded to open a case of defeating the
administration of justice and applied for warrant of arrest against the two plaintiffs
and Ms Sunby. He further applied for search and seizure warrant against the two
plaintiffs. On 22 July 2019 and with prior arrangement with attorneys of the plaintiffs
the plaintiffs handed themselves to the police at Hoedspruit police station in
company of their legal representatives.

30. The plaintiffs were arrested and charged with the offence of defeating the
ends of justice and before appearing in court they were taken to the Estate and the
house of the second plaintiff was searched. Nothing incriminating was found. They
then return ed to the police station and taken to court. They appeared before the
magistrate and granted bail of R5000.00 each.

31. On 23 July 2019 the second defendant arrived at the Estate in company of the
members of SAPS dog unit and divers. They proceeded to the river bordering the
premises of the first plaintiff. The divers searched deep in the water and found
nothing. The house of the first plaintiff was not searched.

32. On 04 December 2020 the charges against the plaintiffs were withdrawn with
instructions from the office of the Director of Public Prosecutions after the plaintiffs

instructions from the office of the Director of Public Prosecutions after the plaintiffs
submitted their representations to the DPP. The plaintiffs hand delivered their section
3 notice on 12 May 2021 and served the Provincial commissioner by registered mail
on 13 May 2021.

33. In the particulars of claim the first plaintiff did not claim for the alleged unlawful
search conducted on 22 July 2019.

ISSUES BEFORE THE COURT

34. The dispute between the parties is whether the arrest and detention of the
plaintiff was unlawful, whether the search conducted on 22 July 2019 at the house of
the second plaintiff was properly pleaded and its lawfulness. Whether the riverbank
forms part of the private property of the first plaintiff and if so whether the search
conducted in the river infringed his right to privacy and therefore unlawful.

35. The defendants raised a special plea of noncompliance with section 3 of act
by the plaintiffs. The plaintiff applied for condonation and the Court is yet to give
judgment on their app lication. The question before the Court is whether they were
late in serving the notice and if yes whether they have made out the case for
condonation.

PLEADINGS

36. The plaintiffs pleaded that the first defendant owed a legal duty to the public
and, mo re specifically, to the plaintiffs to inter alia , protect all South South African
citizens from illegal conduct and prevent any loss, which duties included the
following:

i. the constitutional duty to prevent, co mbat and investigate crimes and
/or the continuation of crimes, and to uphold and enforce the law;
ii. the duty to ensure the Plaintiffs was not deprived of their freedom
arbitrarily and without just cause.
iii. The duty to protect the Plaintiffs' right to dignity and to ensure that the
Plaintiffs' dignity was respected and protected by all members of the First
Defendant;
iv. the duty to ensure the Plaintiffs safety and security, as well as to
protect their other rights s contained in the Bill of Rights;

v. the duty to ensure that the Plaintiffs was not exposed to harm whilst in
the custody of the SAPS; and
vi. the duty to ensure that members of the First Defendant did not
unlawfully arrest and detain the plaintiff.

37. The plaintiffs pleaded further that due to their wrongful and intentional
unlawful arrest and detention and the execution of the warrant for search and seizure
by the members of the first defendant they suffered the following damages:

a. right to freedom and security of the person as contained in section 12
of the Constitution of the Republic of South Africa,1996 was wrongfully and
intentionally infringed;
b. right to freedom of movement and liberty as contained in section 2 of
the Constitution was wrongfully and intentionally infringed; and
c. right to dignity as contained in section 1 0 of the Constitution was
unlawfully and intentionally infringed.
d. the Plaintiff suffered sever public humiliation, being upstanding
businessmen and represent atives of the community of Hoedspruit, and
representing homeowners in the Blyde Wildlife Estate as board members of
the Home Owners Association, by the misrepresentations made by the
Second Defendant.

38. In respect of the warrant of arrest the plaintiffs pleaded that the application for
arrest warrant by the second defendant was false and devoid of truth and the
plaintiffs were arrested as a consequence thereof and that the conduct of the second
defendant was the dereliction of his duties outlined above.

39. Their pleading in respect of the search and seizure is that on or about the 23
July 2019 the second defendant and his cohorts executed the search and seizure
warrants without finding any evidence in support of the false and misleading
statements made in lieu of obtaining the warrants.

CONDONATION FOR NON-COMPLIANCE WITH SECTION 3 OF ACT 40, 2002.

40. The plaintiffs applied for condonation of their failure to serve the first
defendant with notice in terms of section 3 of Act 40 of 2002 and it was no opposed
by the defendants. They also did not make any refence to the special plea or the
condonation in their heads of argument. This does not however, implies that they
have abandoned their plea or they concede to the application for condonation.

41. In deciding whether the plaintiff should succeed in their application the Court
will consider that by pl eading a special plea of non -compliance the defendants
created a dispute and the fact that the application is unopposed it does not
necessarily mean that applicants are automatically entitled to the relief sought.

42. Section 3 of the Act provides as follows:

(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
(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 identi ty 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 prevent ed 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 p rejudiced by the
failure".

43. The claims by the plaintiffs are based on two causes of action independent
from each other. The arrest and detention occurred on 22 July 2019.The arrest
preceded the search conducted on the same day at the house of the secon d plaintiff.
The arrest and detention were for a specific offence which the defendants allege it
was committed on 15 June 20 19. The searches conducted on 22 and on 23 July
2019 had nothing to do with the arrest and them too were conducted on two
separate days against two individuals.

44. Section 3 (4) (b) of the Act provide for three requirements which must be met
before the Court can exercise its discretion to grant application for condonation. The
first requirement is that the debt should not have been extinguished by prescription
which is not the issue in this matter as the summons were served on the first
defendant within a period of three years from the date the debt became due.

45. The second requirement is that good cause exists for the fa ilure by the
creditor. In the matter of NMZ obo SFZ v MEC for Health and Social Development
of the Mpumalanga Provincial Government3 the SCA stated as follows:

3 (Case no 1149/2020) [2021] ZASCA 184 (24 December 2021) paragraph 23

''The second requirement of 'good cause' encompasses the issue of the delay
in instituting the c laim, the prospects of success of the claim, the explanation
advanced, the bona fide's of the appellant and any contribution in the delay by
another party other than the appellant".

46. It will be a waste of time and unnecessary for the Court to grant condonation if
the applicant has no reasonable prospects of success. The prospect of success on
merits should mitigate against applicant's fault. The application for condonation in
this matter was brought at the very late stage of the proceedings. The parties have
already in their opening address define the issues and the special plea raised by the
defendants is one of them. The Court heard evidence on merits and that place this
Court in a better placed to decide on prospects of success on merits by the plaint iff.
Hence the defendants did not abandon their special plea both condonation and
special plea should be decided simultaneously.

47. In respect of the claim for unlawful search the plaintiffs pleaded in their
particulars of claim that the search warrant i ssue on by the Magistrate Lenynye on
10 June 2019 was executed by the second defendant and his cohorts on 23 July
2019. I do not deem it necessary to determine whether or not the search and seizure
warrant executed on 23 July 2019 was issued on 10 June or 18 July 2019 for
reasons stated below.

48. The evidence of the two plaintiffs is that on 22 July 2019 the house of the
second plaintiff was searched on the strength. of the search and seizure warrant. On
23 July 2019 a search was conducted in the river bordering the premises of the first
plaintiff. The first plaintiff confirmed during cross examination that his premises were
not searched. Though he is of the opinion that his ownership extent to the middle of
the river in my opinion what he has is the exclusive right to use and enjoy the river
up its middle. He cannot claim privacy on common property accessible to other

up its middle. He cannot claim privacy on common property accessible to other
residents of the estate.

49. In their pleadings under the heading 'damages' the plaintiffs make no mention
of damages suffered because of the alleged unlawful search. In their p rayers both

plaintiffs pray for damages suffered as a results unlawful arrest and unlawful
detention. In their heads of argument, the plaintiff submitted as common cause that
the search and seizure warrant was applied for by the second defendant and issued
on 10 July 2019 (thought it reads 2010) and executed on 23 July 2019 by the second
defendant and other members of the first defendant.

50. It is not disputed that there was a search conducted on the river passing
alongside the house of the first plaintiff. It is also not disputed that the second plaintiff
did not plead for the alleged unlawful search conducted at his house on 22 July 2019.
The Constitutional Court in Molusi v Vogens N.O and Others4 held:

"The purpose of pleadings is to define the issues for the other party and the
Court. And it is for the Court to adjudicate upon the disputes and those
disputes alone”. 5

51. It so that it is impermissible for a party to plead a particular case and during
the trial seek to establish the other 6.The trial co urt is equally not permitted to find a
recourse in issues falling outside the pleadings when deciding the case 7. It was
submitted on behalf of the plaintiffs that because the evidence about the search on
22 July 2019 was extensively canvased both in examin ation in chief and cross
examination without objection the Court can therefore decide on it even though it
was not explicitly mentioned in the pleadings. I do not agree with his submission. It is
acceptable that a party may be allowed to rely on an issue which was not covered by
the pleadings, but this cannot be extended to claim which was not pleaded.

52. The arrest of the plaintiffs was based on the warrants issued by the
magistrate Lenyenye on 18 June 2019. The plaintiffs claim that the application for
the warrants arrest was false and devoid of truth. Their contention is that there was
no offence committed and the second defendant was fully aware of that and acted
with malice.

with malice.


4 Molusi vVogens N.O and Others 2016 (3) SA 370 (CC) at para 28.
5 My emphasis.
6 Minister of Safety & Security v Slabbert [2009] ZASCA 163; [2010] 2 All SA 474 (SCA)
7 See footnote 4.

53. The second defendant deposed to an affidavit in support of his application for
an arrest warrant against the plaintiffs. The affidavit was presented to the public
prosecutor who was also called as witness by the plaintiffs. According to their
witness first affidavit did not contain the allegations of racial slur and crimen injuria.
She then gave the second defendant a bench pad to rewrite the affidavit. It was only
after t he statement was rewritten that she became satisfied that with the contents
and proceeded to approach the magistrate in chambers for a warrant of arrest to be
issued. She was also satisfied that the plaintiffs have committed an offence of
defeating the adm inistration of justice and on that basis she proceeded to apply for
warrant of arrest.

54. In determining whether the arrest warrant was valid or not the Court the will
have consider the entire facts of the case including the affidavit deposed to by the
second defendant bearing in mind that he plaintiffs allege that the application for
arrest warrant was based on false allegation.

55. The second defendant and his colleagues visited the Estate on 10 June 2019
to interview Ms Sunby in relation to fraud case registered at Hoedspruit Police
Station. The estate is a security complex with access control at the main gate. It is
not possible for anybody to enter the complex without permission using the main
entrance.

56. Upon arrival at the gate the security officers employed by the Estate refused
the police an access because Ms Sunby did not give her consent and eventual the
second plaintiff was summoned to the gate and he also summoned the first plaintiff.
They asked for the search warrant from the police and they did not have it. The
plaintiff then informed the police that without search warrant or permission by the
owner of the house they want to visit they cannot grant them access. According to
the plaintiffs they told police that they can enter on their own but they will not open
the gate for them.

the gate for them.

57. The police could not gain access onto the premises because Ms Sunby
refused to give permission and the plaintiffs demanded search warrant. The question

is whether th e plaintiffs did refuse the police access into the premises and if yes if
that refusal amounted to defeating the ends of justice.

58. The police visited Estate to execute their lawful duties. They could not gain
access because access was denied. The plaintiff demanded search or arrest warrant
before they could grant the police permission to enter. They refused entry even
though they were satisfied that people seeking entry were members of South African
Police Service. I do not think the plaintiffs were entitled to deny the police access into
the Estate. Entry into the estate should be differentiated from entry into a private
home.

59. Section 26 of the Criminal Procedure Act8 provides:

"Where a police official in the investigation of an offence or alleged offence
reasonably suspects that a person who may furnish information with reference
to any such offence is on any premises . such police official may without
warrant enter such premises for the purpose of interrogating such person and
obtaining a statement from him: Provided that such police official shall not
enter any private dwelling without the consent of the occupier thereof ” [My
emphasis].

60. The Act refer to any premises and private dwelling. The security estate falls
under premises whereas the private houses within the estate falls under private
dwelling. It is not a requirement that the police should first obtain the permission or
consent of the owner of the private dwelling before they could be granted access into
the common property. It is therefore my finding that the plaintiffs knew that without
their permission the police cannot gain access into the common property to conduct
investigations. The rules of the Estate cannot supersede the law of the country. It
does not matter whether Ms Sunby would have granted them permission to enter her
house or not.


8 Act 51 of 1977

61. The case of the plaintiffs has been that they were arrested on the strength of
an invalid arrest warrant. In their heads of argument, the plaintiff submit that
Mondlane's evidence is to the effect that she effected arrest without the knowledge
of, and without possession of a warrant and it therefore follows that the plaintiffs
were arrested without warrant. When confronted with arrest warrant by his legal
representative the second plaintiff testified that he thinks it is the document they
showed them and went further to say their lawyers did everything.

APPLICATION FOR CONDONATION

62. The plaintiffs having been served with special plea filed a reply and pleaded
that the debt became due when the charges were withdrawn on 4 December 2020.
In the alternative they pleaded that in the even the Court finds that the debt did not
only become due on 4 December 2020, the plaintiffs aver that it was only when the
charges against them were withdrawn that they acquired the knowledge of the
relevant facts giving rise to the debts, and they could not have acquired such
knowledge before 4 December 2 020 by exercising reasonable care. The same
averment was repeated in their application for condonation.

63. In NMZ obo SFZ 9 supra the SCA in dealing with the requirement of good
cause listed to the explanation for the failure and the bo na tide of the applicant as
some of the factors that the Court should consider in determining application. The
first explanation by the plaintiffs is that the debt became due only when the charges
were withdrawn against them but if the Court finds against their averment then they
only acquired knowledge of the relevant facts on 4 December 2020 when charges
were withdrawn.

64. The debt in this matter, it be due to unlawful arrest and detention or unlawful
search, became due the day the arrest was effected and search was conducted. The
case of the plaintiffs should be differentiated from the case where the plaintiff was

case of the plaintiffs should be differentiated from the case where the plaintiff was
arrested and kept in custody until charges were withdrawn. In such cases too, the

9 Footnote 1

plaintiff will have to plead malicious arrest in which case the unlawful conduct
becomes continuous.

65. The next question is whether plaintiffs acquired knowledge of the relevant
facts when charges were withdrawn. The plaintiffs were legally represented during
their arrest and appearances in magistrate's court a s well as during the first search.
Their attorneys were presented with arrest warrant and the search warrant for the
search conducted on 22 July 2019. They do not explain how did they get knowledge
of the relevant facts by mere withdrawal of the charges. M ost importantly, charges
were withdrawn after the DPP considered, among others, their representations. They
would not have been able to make representation if they did not have knowledge of
the relevant facts. They were present on 15 June 2019 when the pol ice were denied
access and the charge that followed thereof was defeating the ends of justice.

66. Exhibit D is the annexure to the charge sheet, and it explain the act is alleged
to have committed. It reads as follows:

"IN THAT upon or about the 15/06/2019 and at or near Blyde Estate
Hoedspruit in the district of Tzaneen the accused did unlawfully and with
intent to defeat or obstruct the course of justice, commit an act, to wit, Blocked
and refused Police to enter Blyde Estate to conduct investigations which act
defeated or obstructed the administration of justice".

67. When this Court take into account that the plaintiffs made representations to
the DPP and that charge sheet explai ned in detail the charge they were facing I do
not think they have been bona fide with their submission that they lacked knowledge
of the relevant facts in order for them to serve the required notice within six months
from the date the debt became due.

68. Having considered the merits of this matter I am not convinced that the
plaintiffs have reasonable prospects of success on the claim for unlawful search. The

plaintiffs have reasonable prospects of success on the claim for unlawful search. The
first plaintiff conceded that his house was never searched. The property that was
searched on 23 July 2019 was public place and does not form part of his private
property. The second plaintiff did not plead for the unlawful search of 22 July 2019.

69. On the claim for unlawful arrest and detention the second defendant did not
make a false statement t o obtain the arrest warrant. In their own pleadings the
plaintiff alleged that the police were refused entry because they did not have a
search warrant. I therefore find that they obstructed them from entering the Estate
and therefore they lack prospects of success on merits.

70. Further to the above the debt became due on 22 July 2019 and they ought to
have possessed knowledge of the relevant facts for the purpose of Section 3 Notice.
Withdrawal of the charges does not translate into the knowledge of the facts. In their
affidavit and it is the case in their pleadings they could not explain how the
withdrawal of the case assisted them in acquiring the knowledge of the relevant facts
which they did not have when they made representations to the DPP.

71. I therefore conclude that in both claims the plaintiffs have no reasonable
prospects of success on merits and they also fail ed to satisfy the requirement of
good cause. They were not bona fide when alleging that they lacked knowledge of
the relevant facts and I make the following order.

ORDER

1. The application for condonation by the plaintiffs is dismissed.

2. The special plea by the defendants that the plaintiffs failed to se rve the
notice in term of Section 3 of Act 40, 2002 is upheld and the plaint iff's claim is
dismissed with costs.



MASHIFANE AJ
ACTING JUDGE OF THE HIGH COURT
OF SOUTH AFRICA, LIMPOPO DIVISION
POLOKWANE

Appearance:

For the plaintiffs: Adv R.M Venter
Instructed by Cilliers & Reynders Attorneys

For the defendants: Adv M Ndluli
Instructed by Office of State Attorney, Polokwane
Date of hearing: 28-29 July 2025 and 01-02 September 2025
Last set of heads of arguments received on 14 October 2025

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