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2026
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[2026] ZAFSHC 37
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Letsela v Minister of Police and Another (A182/2025) [2026] ZAFSHC 37 (2 February 2026)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: A182/2025
In
the matter between
MOEKETSI
SAMSON LETSELA
APPELLANT
And
THE
MINISTER OF POLICE
FIRST
RESPONDENT
THE
NATIONAL DIRECTOR OF PUBLIC
SECOND
RESPONDENT
PROSECUTIONS
Neutral
citation:
Letsela v Minister of
Police and Another
(A182/2025)
[2026]
ZAFSHC
37
(2 February 2026)
Coram:
VAN RHYN J and MUVANGUA AJ
Heard:
19 January 2026
Delivered:
This judgment was handed down electronically by
circulation to the parties’ representatives by email and
released to SAFLII.
The date and time for hand-down is deemed to be 2
February 2026 at 14h00.
Summary:
Appeal – condonation – section 3
the
Institution of Proceedings Against Certain Organs of State Act 40 of
2002
–
legal
principles re-stated
–
insufficient
reasons for delay.
ORDER
The
appeal is dismissed with costs, including the costs of counsel on
scale C.
JUDGMENT
Muvangua AJ (Van Rhyn
J concurring)
Introduction
[1]
Before us
served an appeal against an order by the regional court for
dismissing the appellant’s application for condonation,
(in
terms of s 3 of the Institution of Legal Proceedings against Certain
Organs of State Act 40 of 2002 (Act)), on the ground that
the
requirements for the granting of condonation were not satisfied.
[2]
The appellant
seeks to appeal against that order on several grounds, the
sum-total of which being that the court
a
quo
misdirected
itself – both on the facts and in law, when it assessed the
appellant ’s application.
[3]
The first
respondent, the Minister of Police, and the second respondent, the
National Director of Public Prosecution, opposed the
appeal on the
basis that the judgment of the court a quo is unassailable.
Background
[4]
The facts in
this case are largely not in dispute. The appellant was arrested on
21 September 2010 by persons in the employ of the
first respondent
and charged with robbery with aggravating circumstances. He appeared
in court on numerous occasions and was eventually
acquitted on 18
October 2016.
[5]
The appellant
served a notice in terms of section 3 of the Act (“section 3
notice”) on the respondents on 25 and 26
April 2018
respectively.
[6]
In terms of s3
Of the Act, a party who intends to institute legal proceedings
against an Organ of State for the recovery of a debt
is required to
give written notice of his/her intention to do so. Such notice must
be given within six months from the date on
which the cause of action
arose (when the debt became due) and be served on the Organ of State
in accordance with s4(1).
[7]
Section
3(4)(a) of the Act permits a litigant to apply to a court for
condonation, if the six-month period was not complied with,
and
section 3(4)(b) permits a court to grant condonation where it is
satisfied that: (i) the debt has not been extinguished by
prescription, (ii) good cause exists for the creditor’s failure
to comply with the Act, and (iii) the Organ of State in question
has
not been unreasonably prejudiced by that failure.
[8]
The appellant
initially issued summons against the respondents for malicious
proceedings/prosecution, in the Pretoria Regional Court
during August
2018, claiming payment of damages in the amount of R400 000.00.
That summons was served as follows:
(a)
on 1 August
2018 on the National Director of Public Prosecutions;
(b)
on 2 August
2018 on the Office of the State Attorney;
(c)
on 6 August
2018 on the National Commissioner of Police; and
(d)
on 8 August
2018 on the Free State Provincial Commissioner of Police.
[9]
On 9 December
2019, the appellant’s action was transferred from the Pretoria
Regional Court to the court
a
quo
subsequent
to the issue of jurisdiction being raised by the respondents in their
special plea filed on 22 October 2018. The respondents
furthermore
pointed out that the appellant failed to comply with the requirements
of section 3(2) of the Act, in that the section
3 notice was served
out of time and without a request for condonation.
[10]
It is common
cause that the appellant’s cause of action arose on 18 October
2016, when the appellant was acquitted. This meant
that the s 3
notice ought to have been filed within six months from 18 October
2016, therefore prior to 18 April 2017. It was served
on 25 April
2018, some 18 months after the date on which the appellant’s
cause of action arose, and about 12 months outside
the prescribed six
months period.
[11]
The appellant
filed a condonation application on 13 October 2022, six years after
the cause of action arose and approximately four
years after he was
alerted of the need to apply for condonation.
[12]
The appellant
provided the following reasons for the delay in providing a notice to
the respondents within six months from the date
of his acquittal,
being 18 October 2016:
(a)
Although he
was advised by his erstwhile attorneys during October 2016 that he
might have a claim against the respondents, he is
a lay person who
did not know that he might have a civil claim for damages arising
from the alleged malicious prosecution. He also
did not know that he
was required to give statutory notice to the respondents within six
months from the date on which he was acquitted.
(b)
The criminal
trial caused significant disruption to his employment, requiring him
to take leave on numerous occasions, and that
he also took sick leave
to attend psychological treatment due to stress arising from the
ordeal. By that stage, his leave had been
exhausted. He worked in
Reitz, and the inability to take time off from work made it
impossible for him to consult with his legal
representatives, who
were some 110 kilometers from Harrismith.
(c)
He attended to
his attorneys’ offices as soon as reasonably possible, but by
then, the six-month period had already expired.
Thereafter, the
necessary information was obtained, the matter was referred to his
current attorneys, and the statutory notice
was drafted and served.
[13]
The appellant
alleged that the respondents would suffer no prejudice as a result of
his failure to comply with the provisions of
s 3 of the Act. He also
alleged that his proposed action had strong prospects of success
because the underlying criminal proceedings
were initiated and
pursued in circumstances that were unlawful, unreasonable, and
unsupported by evidence. He alleged that he was
wrongfully and
unlawfully arrested on 21 September 2010 on a charge of robbery with
aggravating circumstances by members of the
South African Police
Service, without a warrant and in the absence of any lawful basis for
such arrest.
[14]
The appellant
alleged that he provided the police with a clear alibi, explaining
his whereabouts at the time of the alleged offence
and stating that
his five-year-old son was with him throughout. He alleged that his
alibi was independently corroborated by an
employee of Lesedi
Bookshop, who testified at the trial that the appellant was present
at the shop shortly after 08h00 on the day
in question, accompanied
by his young son, and that she assisted him at that time.
[15]
Despite this, (so the appellant averred) the police made no attempt
to investigate or verify his alibi, nor
did they follow up on the
information he provided. This omission, he contends, was material and
rendered both the arrest and the
subsequent prosecution
unjustifiable. There was no evidence linking him to the alleged
offence and that, whatever evidence was
available, fell short of
establishing a
prima
facie
case
against him. The appellant alleged further that notwithstanding these
deficiencies, he was prosecuted for a period of almost
six years.
[16] He
was found not guilty and discharged in October 2016. The appellant
relies on this outcome as confirmation
that the prosecution was
unfounded and should never have been instituted or continued.
Issue
[17]
In light of the above, the question before us was whether the
regional court was correct in dismissing the
appellant’s
condonation application, on the basis that the requirements for the
relief sought had not been satisfied.
In answering this
question, we commence with an exposition of the legal principles on
condonation.
Legal Principles on
Condonation
[18]
Condonation is a discretionary remedy, not a right. The overarching
test is whether granting condonation is in the interests
of justice.
This standard is flexible and context-dependent – it requires
the court to consider all relevant circumstances.
[1]
A party seeking condonation must show sufficient cause, which
requires a full and reasonable explanation for the non-compliance.
[2]
[19]
Over time, courts have identified a number of interrelated factors as
relevant to the condonation
enquiry. These are: the nature of the
relief sought;
[3]
the extent and cause of the delay;
[4]
the importance of the issue to be raised;
[5]
the effect of the delay on the administration of justice and other
litigants;
[6]
and
the prospects of success on the merits if condonation is granted.
[7]
[20]
These factors are not
individually
decisive; they must be weighed together in a holistic manner.
However,
the
Constitutional Court in
Mphephu-Ramabulana
[8]
noted
that ‘the extremity of the delay, coupled with the paucity of
the explanation provided, justify the immediate refusal
of
condonation’, but cautioned that ‘lateness and inadequacy
of the explanation provided are not necessarily dispositive
of the
question of condonation. This is because the other factors relevant
to condonation may favour its granting and tilt the
interests of
justice to the other side of the scale.’
[9]
[21]
The party seeking condonation bears the onus to provide a full,
detailed, and accurate account of the causes
of the delay, including
dates, duration, and the effect of any obstacles. Generalised or
vague explanations are insufficient.
[10]
In addition, a party seeking condonation must institute such an
application
as
soon as they become aware of non-compliance, and a delay in seeking
condonation itself must be explained.
[11]
Application
of the legal principles to the facts
Reasons
for the delay
[22]
It is common cause between the parties that the appellant ’s s
3 notice was served approximately 12
months late, and that the
application for condonation was only instituted some four years after
he had been alerted to the need
to seek such condonation. During oral
argument, counsel for the appellant contended that there is no
principle requiring a condonation
application to be brought
expeditiously, distinguishing this from instances under the Uniform
Rules of Court where specific time-periods
are prescribed. On this
reasoning, it was argued that an application for condonation could
competently be brought even on the first
day of trial. This
contention is plainly incorrect and is inconsistent with this Court’s
dictum
in
Mphati
.
[12]
[23]
The appellant ’s explanation for the 12-month delay in serving
the s 3 notice did not cover the whole
period of delay. It was
generalised, internally inconsistent, and materially incomplete. For
instance, the appellant did not provide
any detail at all to the
court regarding:
(a)
the number of
leave days that were available to him in 2017, bearing in mind that
s
20
of the
Basic Conditions of Employment Act 75 of 1997
entitles him
to ‘21 consecutive days' annual leave on full remuneration in
respect of each annual leave cycle’:
(b)
what he did
during the entire period of 2017:
(c)
when he first
consulted Balden, Vogel & Partners Inc:
(d)
when he
consulted his current attorneys:
(e)
why he could
not arrange a consultation with his attorneys over a day that he did
not work, or outside of his working hours; alternatively,
what
efforts he made to secure consultations despite alleged work
constraints:
(f)
when he gave
his attorneys instructions to issue the statutory notice; and
(g)
how his
employment arrangements made consultation objectively impossible.
[24] On
his version, the appellant got legal advice during October 2016 that
he may have a claim against the State.
In light of this, his reliance
on lack of knowledge of the law (which is in any event not an excuse)
was self-contradictory and
undermines the credibility of the
explanation.
[25]
In addition, the appellant did not provide any
medical evidence to substantiate the claim that psychological
treatment and stress contributed to the exhaustion of leave days. We
do not know how much time he required for such treatment.
The
appellant’s explanation was assertion-based rather than
evidence-based, and thus fell short of the standard articulated
in
Uitenhage
.
[13]
Prospects
of success
[26]
The high-water mark of the appellant’s case on prospects of
success is his assertion that he was ultimately
acquitted after a
protracted prosecution, and that both his arrest and prosecution were
unlawful on the basis that his alibi was
not properly investigated.
[27]
In contrast, during oral argument counsel for the first respondent
drew attention to paragraph 9.1 of the
appellant ’s particulars
of claim (
qua
plaintiff), and
submitted that the appellant ’s prospects of success are,
objectively, weak. In that pleading, the appellant
alleges no more
than that he was arrested on a charge of robbery with aggravating
circumstances, which, without more, falls materially
short of
establishing a viable cause of action against the first respondent.
[28]
This accords with the regional court’s finding that, on the
limited and untested evidence before it,
it could not conclude that
the appellant enjoyed strong prospects of success. There was nothing
placed before that court to suggest
otherwise, and counsel for the
appellant was likewise unable, during oral argument, to point to
anything in the record that contradicted
that conclusion.
Prejudice to the
respondents
[29]
We accept that the first respondent asserted, without demonstrating,
that granting the appellant condonation
would cause it unreasonable
prejudice, because the memory of its witnesses would have faded with
the passage or time. We are, however,
cognisant of the human
experience that with the passage of time, human memory fades and
witness recollection of events gets diminished.
[14]
Conclusion
[30]
We conclude that the court
a
quo
was
correct in dismissing the application for condonation. This is so
because condonation is discretionary and not a right; and
the
appellant bore the onus to, but did not, establish good cause. The
explanation he offered was contradictory, vague, unsupported,
and
incomplete; the delay was substantial and inadequately accounted for;
and condonation was not sought promptly. In addition,
prospects of
success were not shown to be compelling; and granting condonation
would prejudice the respondents and undermine finality.
[31]
The overriding standard is the interests of justice. In the absence
of a full and satisfactory explanation
for the considerable delay of
approximately ten years, coupled with the appellant’s thin
prospects of success and the demonstrable
prejudice to the
respondents, we are not persuaded that it would be in the interests
of justice to interfere with the regional
court’s order or to
uphold the appeal.
Order
[32] In
the result, the following order is made:
The appeal is dismissed
with costs, including the costs of counsel on scale C.
N MUVANGUA
ACTING JUDGE OF THE
HIGH COURT
I concur.
I VAN RHYN
JUDGE OF THE HIGH
COURT
Appearances
For
the appellant:
A
C Gobetz
J
C van Eeden
Instructed
by:
Jacobs
Fourie Attorneys, Bloemfontein
For
the respondent:
M
S Mazibuko
Instructed
by:
Office
of the State Attorney, Bloemfontein
[1]
Grootboom
v National Prosecuting Authority and Another
[2013]
ZACC 37
;
2014 (2) SA 68
(CC) (
Grootboom
)
para 22.
[2]
Ibid
para 23.
[3]
Ibid
para 22
[4]
Brummer
v Gorfil Brothers Investments (Pty) Ltd
[2000]
ZACC 3
;
2000 (2) SA 837
(CC) (
Brummer
)
para 3.
[5]
Grootboom
para
22
[6]
Brummer
para
3.
[7]
Mankayi
Mankayi
v AngloGold Ashanti Ltd
[2011] ZACC 3
;
2011 (3) SA 237
(CC) para 8.
[8]
Mphephu-Ramabulana
and Another v Mphephu and Others
[2021] ZACC 43
;
2022 (1) BCLR 20
(CC).
[9]
Ibid para 38.
[10]
Uitenhage
Transitional Local Council v South African Revenue Service
2004
(1) SA 292
(SCA) para 6.
[11]
Mphati
and Another v Minister of Police
[2022]
ZAFSHC 39
para 10.
[12]
Ibid.
[13]
Footnote 11.
[14]
In both the heads of argument and during oral submissions, counsel
for the appellant relied on
MEC
for Education, KZN v Shange
2012 (5) SA 313
(SCA), particularly paragraphs 18 to 22, for the
proposition that it is insufficient for a party to assert prejudice
based on
memory loss without demonstrating it. Regrettably, we were
unable to locate support for that proposition in
Shange
.