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[2026] ZAGPPHC 121
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Mosuwe v Minister of Police and Another (A33/2020) [2026] ZAGPPHC 121 (26 February 2026)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: A33/2020
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER JUDGES:
NO
(3)
REVISED:
NO
(4)
Date: 27 February 2026
Signature:
In
the matter between:
MALESELA
FRANS MOSUWE
Appellant
And
MINISTER
OF POLICE
First
Respondent
MINISTER
OF CORRECTIONAL SERVICES
Second Respondent
JUDGMENT
NYATHI
J (with Mnqibisa-Thusi et Millar JJ concurring)
INTRODUCTION
[1] This
is an appeal against two judgments of the court a quo (per Mabuse J),
namely:
The judgment of 11 August
2021, refusing the appellant’s application for condonation in
terms of section 3(4) of the Institution
of Legal Proceedings Against
Certain Organs of State Act 40 of 2002 (“the Act”), and
The judgment of 23
October 2023, refusing the appellant’s application for
condonation for late filing of an application for
leave to appeal in
terms of Rule 49(1)(b).
[2] The
Supreme Court of Appeal (“the SCA”), on 7 February 2024,
granted the appellant leave to appeal to the Full
Court. The effect
of that order is that this Court must now consider the appeal on its
merits.
[3] For
the reasons that follow, the appeal succeeds.
FACTUAL
BACKGROUND
[4] The
essential facts are not in dispute. The appellant was:
Arrested in July 2003 in
Polokwane,
Convicted in January
2004,
Sentenced to 7 years’
imprisonment,
Released on parole in
April 2007, and
Ultimately acquitted on
appeal on 6 October 2008.
[5] The
appellant received the result of his successful appeal only on 6
October 2008, when he was discharged from any further
parole
supervision.
[6] A
notice in terms of section 3(1) of the Act was served in December
2009, and summons was issued in March 2011.
[7] The
question is whether the court a quo was correct to conclude that:
The appellant's claim
prescribed in July 2006,
The s 3 notice was
unreasonably late,
The cause of action arose
in July 2003, and
No good cause existed
under section 3(4)(b) to grant condonation.
[8] In
relation to the 2023 judgment, the question is whether the
appellant’s explanation for the late filing of the
Rule
49(1)(b) application ought to have been accepted, and whether
prospects of success existed.
THE
ISSUES
[9] The
appeal raises three central issues:
When did the debt become
“due” for purposes of both the Act and the Prescription
Act?
Did good cause exist for
condonation under section 3(4) of the Act?
Did the court
a quo
misdirect itself in refusing condonation under Rule 49(1)(b)?
ANALYSIS
1.
When did the debt become due?
(a)
The court a quo’s approach
[10] The
court a quo held that the appellant’s cause of action arose in
July 2003, when the arrest occurred, and that
prescription began to
run immediately. This finding formed the foundation of both
judgments.
[11] This
approach is inconsistent with binding authority, constitutional
principle, and the factual matrix of this case.
(b)
Knowledge necessary to make a debt “due”
[12] The
Constitutional Court has consistently held that prescription does not
begin to run until a litigant is in a position:
To appreciate the facts
and law giving rise to a complete cause of action, and
To enforce the right in
law.
See
Links v MEC for
Health, Northern Cape
2016 (4) SA 414
(CC);
Truter
v Deysel
[2006] ZASCA 16
;
2006 (4) SA 168
(SCA);
Madinda v Minister of
Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA).
[13] It
is well established that knowledge of legal
conclusions—including unlawfulness—is required before
prescription begins to run where:
The
unlawfulness is
not immediately apparent
, or
The
wrongful conduct is ascertained only later, through appeal or expert
advice.
[14] Here,
the appellant was convicted and imprisoned. He could not know that
his arrest, detention, prosecution and conviction
were legally
wrongful until his conviction was set aside on 6 October 2008.
[15] The
State cannot contend that a person under conviction must somehow
litigate against the State while his conviction remains
intact.
[16] Therefore,
the appellant’s debt became due no earlier than 6 October 2008,
when he obtained knowledge that:
i.
His arrest and detention were indeed wrongful,
ii.
His conviction was based on misidentification,
iii.
The criminal justice process had failed him.
(c)
Precedents supporting this approach
The
appellant’s argument is fortified by:
Sello Thabang v
Minister of Police
(Gauteng Division, 13 April 2022)
Phasani v City of
Tshwane
(2022 ZAGPPHC 940)
Van Wyk v Unitas
Hospital
[2007] ZACC 24
;
2008 (2) SA 472
(CC)
Le
Roux v Coetzee
2024 (4) SA 1
(CC)
These cases recognise:
a.
The need to avoid piecemeal litigation,
b.
That constitutional rights to access to courts (s 34) require
flexibility,
c.
That the interests of justice may delay the commencement of
prescription,
d.
That a cause of action may accrue only after exoneration or
finalisation of the criminal process.
Finding
[17] The
court a quo erred in finding that the cause of action arose in July
2003.
It
arose only when the appellant’s conviction was set aside on 6
October 2008.
2.
Condonation under s 3(4) of the Act
Section
3(4)(b) requires:
i.
The debt must not have prescribed
ii.
Good cause must exist
iii.
No unreasonable prejudice to the organ of state
(a)
Prescription
[18] Once
the correct “due date” is applied (6 October 2008),
prescription:
i.
Would expire only in October 2011;
ii.
Summons issued on 25 March 2011 was in time;
iii.
The debt had not prescribed when s 3 notice was
served (Dec 2009).
(b)
Good cause
[19] Good
cause involves a “wide discretion”.
The
appellant:
a.
Was incarcerated or on parole supervision until October 2008,
b.
Had limited legal knowledge,
c.
Acted promptly once informed of his acquittal,
d.
Consulted attorneys in 2009, and
e.
Served a section 3 notice soon thereafter.
[20] The
delay was neither extensive nor intentional. The court
a quo
’s
characterisation of the delay as “six years” was
factually and legally incorrect.
(c)
Prejudice
[21] The
respondents did not file an answering affidavit and did not contend
that they were unreasonably prejudiced.
[22] On
the evidence, no prejudice is established.
Finding
[23] The
requirements of section 3(4)(b) were met.
The
refusal of condonation by the court a quo must be set aside.
3.
Condonation under Rule 49(1)(b)
[24] The
court
a quo
adopted an excessively punitive approach to the
conduct of the appellant’s legal representatives.
[25] Delays
attributable to attorneys, while regrettable, should not lightly
extinguish a litigant’s access to justice.
The Constitutional
Court has repeatedly warned against closing the doors of court where
the interests of justice favour adjudication
on the merits.
See:
MEC for Economic
Affairs v Kruizenga
2010 (4) SA 122
(SCA)
Grootboom v National
Prosecuting Authority
2014 (2) SA 68
(CC)
[26] The
appellant:
i.
Was blameless for the delay;
ii.
Consistently instructed his attorneys to pursue the appeal;
iii.
Comes to court with substantial prospects of success
on the merits.
[27] The
court a quo’s approach was overly rigid, overly critical of
counsel, and failed to consider the merits or the
constitutional
implications of shutting the appellant out of court.
CONCLUSION
[28] The
appeal against both judgments must therefore succeed.
[29] The
appellant has demonstrated:
A
legally sustainable interpretation of when the debt became due;
Compelling
grounds for condonation under both section 3(4) and Rule 49;
Real
prospects of success in the underlying claim.
ORDER
The
following order is made:
1.
The appeal is upheld with costs.
2.
The judgments of the court a quo dated 11 August 2021 and 23 October
2023 are set aside and replaced with the following:
2.1 Condonation is
granted for the appellant’s non compliance with section
3(1) and section 3(2) of Act 40 of 2002.
2.2 Condonation is
granted for the late filing of the application for leave to appeal
under Rule 49(1)(b).
2.3 The appellant is
granted leave to pursue his action against the respondents under case
number 18229/2011, with all pleadings
filed deemed properly before
the court.
2.4
The respondents shall pay the costs of the applications for
condonation and the appeal, jointly and
severally, the one paying the
other to be absolved.
J.S.
NYATHI
Judge
of the High Court
Gauteng
Division, Pretoria
I agree
N.P. MNQIBISA-THUSI
Judge of the High Court
Gauteng
Division, Pretoria
I agree
A.P. Millar
Judge of the High Court
Gauteng, Division,
Pretoria
Date
of Judgment: 27 February 2026
On
behalf of the Applicant: Adv. Moela
Applicant’s
attorneys: Makhafola & Verster Inc. Attorneys, Pretoria
On
behalf of the Respondent: No Appearance
Respondent’s
attorneys: State Attorney, Pretoria
Delivery
:
This judgment was handed down electronically by circulation to the
parties' legal representatives by email and uploaded on the
CaseLines
electronic platform. The date for hand-down is deemed to be 27
February 2026.