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[2026] ZAGPPHC 410
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Mxenge v Minister: Department of Women, Youth and People with Disabilities and Others (2023-048835) [2026] ZAGPPHC 410 (20 May 2026)
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IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case
No. 2023- 048835
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/
NO
(3) REVISED
DATE:
20 May
2026
SIGNATURE:
In
the matter between:
MXENGE,
THANDEKA
APPLICANT
And
MINISTER:
DEPARTMENT OF WOMEN, YOUTH AND PEOPLE WITH DISABILITIES
FIRST
RESPONDENT
DIRECTOR
GENERAL: DEPARTMENT OF WOMEN, YOUTH AND PEOPLE WITH DISABILITIES
SECOND
RESPONDENT
MINISTER:
DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
THIRD
RESPONDENT
DIRECTOR
GENERAL: DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
FOURTH
RESPONDENT
Coram:
Millar
J
Heard
on:
7
May 2026
Delivered:
20
May 2026 - This judgment was handed down electronically by
circulation to the parties' representatives by email,
by being
uploaded to the
CaseLines
system of the GD and
by release to SAFLII. The date and time for hand-down is deemed
to be 09H00 on 20 May 2026.
JUDGMENT
MILLAR J
[1]
This
is an application for condonation for the late filing of a notice in
terms of section 3(4) of the Institution of Legal Proceedings
against
certain Organs of State Act (ILPACOSA).
[1]
When actions for damages are instituted against certain organs of
state, it is necessary as a precondition to the issuing
of summons
that a notice of the intention to institute legal proceedings be
delivered within 6 (six) months
[2]
from the date when the debt became due.
[2]
This
date, when the debt became due, in the present case where the
applicant has brought an action for damages arising out of the
malicious prosecution of disciplinary proceedings is the date upon
which the proceedings in question were concluded in her favour.
[3]
[3]
The facts in this application are largely
common cause and are these. The applicant was dismissed by the
second respondent,
the Department with whom she was employed on 9
July 2018. The dismissal was disputed and subsequently referred
to arbitration
which was decided in favour of the applicant.
The decision of the arbitrator was dated 30 September 2019. It was
communicated
to the parties on 4 October 2019.
[4]
In
the ordinary course, the date on which the debt would be said to have
become due, is 4 October 2019 and applying the ordinary
rules of
calculation, being exclusive of the first day and inclusive of the
last day,
[4]
the last day upon which the claim could be enforced by the service of
legal process, was 4 October 2022.
[5]
Based on this timeline, the notice to be
delivered in terms of ILPACOSA was to be delivered by 4 April 2020.
A notice in terms
of section 3(1)(a) was delivered on 13 October
2021, just over 2 (two) years after the applicant was notified of the
arbitration
award and 18 months later than it ought to have been.
[6]
Section 3(4)(a) of ILPACOSA, provides that:
“
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 by the failure of
the creditor; and
(iii)
The organ of state was not
unreasonably prejudiced by the failure.”
[7]
In the present application, the second
respondent was aware of the cause of action and was party to the
proceedings that gave rise
to it. Accordingly, the question of
prejudice referred to in section 3(4)(b)(iii) is not in issue.
What is in issue,
is whether or not the debt has prescribed (section
3(4)(b)(i)) and whether or not there is good cause on the part of the
applicant
for not complying timeously with the delivery of the notice
(section 3(4)(b)(ii)).
[8]
The
summons in this matter was issued on 4 October 2022 and served on 6
October 2022, outside of the 3-year period referred to in
section
12(1)
[5]
read together with section 11(d)
[6]
of the Prescription Act.
[7]
Section 15(1) of the Prescription Act provides that the running of
prescription shall, save where there has been an acknowledgment
of
liability, be:
“
interrupted
by the
service
on the debtor
of any process whereby the creditor claims payment of the debt.”
(my
underlining).
[9]
In the present matter, on a plain reading
of the Prescription Act and the ordinary rules of interpretation and
calculation of the
time period, the summons was not served timeously,
the claim became prescribed and for that reason alone, condonation
for the late
delivery of the section 3(1) notice in October 2021
ought to be refused.
[10]
It bears mention that the applicant did not
address at all in the application the reason for the delay in the
delivery beyond the
6-month period. The notice delivered on 13
October 2021 was sent under cover of a letter by an attorney acting
for the applicant.
When the summons was issued, this was done by a
different firm of attorneys. The application is silent on when the
respective firms
were instructed. In both the letter of 13 October
2021 and the subsequent summons, the date upon which the debt became
due as 4
October 2019 is clearly and unequivocally stated.
[11]
The availability of professional legal
advice by no less than 2 firms of attorneys before the expiry of the
three-year period is
a factor which cannot be overlooked. There is no
explanation on the papers about when the firms were instructed and
what transpired
during the period running up to 4 October 2022 –
at least insofar as the period from 13 October 2021 until then is
concerned.
The applicant simply makes no compelling case to satisfy
the requirement of good cause.
[12]
However, even though the applicant has
failed to establish good cause for the delay in delivering the notice
in terms of ILPACOSA,
the applicant contends that the claim is still
enforceable as it has not become prescribed.
[13]
It was argued that the debt did not become
due on 4 October 2019 when she was notified of the arbitrator’s
award. She
contends that the debt only became due on 13
November 2019 when the first respondent (the Minister) informed her
that she accepted
the award, and she was then allowed entry into her
old office. Between 21 October 2019 and 13 November 2019, the
applicant had
returned to work but was dissatisfied with the fact
that she could not return to her original office and was excluded
from attendance
at certain meetings.
[14]
It is not in dispute that she returned as
ordered by the arbitrator or that the award was never taken on
appeal. There is nothing
before the court to suggest that the
Minister ever told the applicant that she would not comply with the
award and reinstatement
of the applicant.
[15]
The arbitrator found that the decision to
charge and subject the applicant to a disciplinary process had been a
“travesty”
and that she had been unfairly dismissed.
This is clearly set out in the decision received on 4 October
2019.The arbitrator
also ordered that the applicant be permitted to
return to work on 21 October 2019 and that all outstanding payments
due to her
be made.
[16]
The applicant seems to accept that the debt
became due on 4 October 2019 but contends that her cause of action
only became complete
on 13 November 2019 when the Minister told her
that she would accept the decision of the arbitrator.
[17]
Upon this interpretation, the time period
for the filing of the section 3(1) notice would have started on 14
November 2019 and expired
on 13 May 2020. This would have the
effect of decreasing the time period for which condonation in respect
of which late delivery
of the notice was required (and shortening the
period for which an explanation for the delay needed to be proferred)
but also extending
the last date for the service of process to 13
November 2019. On this basis, the fact that the summons was
issued on 4 October
2022 and served on 6 October 2022 would have been
of no moment insofar as it would have occurred timeously in terms of
section
15(1) of the Prescription Act.
[18]
In
Holden
v Assmang Ltd,
[8]
(Assmang
)
a
case in which the appellant had instituted a claim for malicious
prosecution arising out of disciplinary proceedings, it was held
that:
“
[17]
A debt is due, owing and payable within the meaning of s12(1) of the
Prescription Act when
the creditor acquires a complete cause of
action for the recovery of the debt. What this means is that
the entire set of
facts which the creditor must prove in order to
succeed with his/her claim against the debtor must be in place.
In other
words, when everything has happened which would have
entitled the creditor to institute action and to pursue his/her
claim.
[18]
I conclude from the aforegoing it is clear that the appellant’s
cause of action
only arose and prescription only started to run when
the HPCSA notified the appellant that the respondent’s
complaint against
her had been dismissed. This was on 13
November 2009. It was only then that the appellant would have
been able to establish
the fourth and final requirement for an action
for malicious prosecution. It follows that as at the date of
summons, the
claim or debt had not prescribed.”
[19]
In the
Assmang
case, the appellant had been informed
on 13 November 2009 that the complaint against her had been dismissed
and her summons had
been issued and served on 6 August 2012 within
the 3-year period referred to in section 11 of the Prescription Act.
In the
present case, the summons was served outside the 3-year
period, from the date on which the applicant was notified by the
arbitrator
of his award. The question is whether the Minister’s
acceptance of the award, was necessary for that award to be of
any
effect?
[20]
From the time the award was made and the
parties notified of it, no steps were taken on the part of the
Minister or the second respondent
to repudiate the award or to have
it set aside. The fact that neither the Minister nor the second
respondent were particularly
co-operative with the applicant in
acquiescing to her requests after 21 October 2021does not detract
from the fact that the arbitral
award once made was binding and was
implemented.
[21]
The contention on the part of the applicant
that the date on which the debt became due is 13 November 2019, is
self-serving and
is simply not borne out by the facts.
[22]
The applicant, cognizant of the difficulty
faced by her, has brought a constitutional challenge to section 15(1)
of the Prescription
Act. The challenge is brought on the basis
that requiring that the process to interrupt prescription actually be
served on
the debtor within the 3-year period constituted a
limitation of various constitutional rights.
[23]
In
Brummer
v Minister for Social Development and Others
[9]
the Constitutional Court held the following:
“
This
court has on at least four occasions considered the constitutionality
of time-bar provisions, as these provisions are sometimes
called. On
three of those occasions, the court considered statutory provisions
containing a time limit and, in the fourth case,
it considered a
clause in an insurance contract containing a time bar.
The principles that
emerge from these cases are these: time-bars limit the right to seek
judicial redress. However, they serve an
important purpose in that
they prevent inordinate delays which may be detrimental to the
interests of justice. But not all time
limits are consistent with the
Constitution. There is no hard-and-fast rule for determining the
degree of limitation that is consistent
with the Constitution. The
‘enquiry turns wholly on estimations of degree’. Whether
a time-bar provision is consistent
with the right of access to court
depends upon the availability of the opportunity to exercise the
right to judicial redress. To
pass constitutional muster, a time-bar
provision must afford a potential litigant an adequate and fair
opportunity to seek judicial
redress for a wrong allegedly committed.
It must allow sufficient or adequate time between the cause of action
coming to the knowledge
of the claimant and the time during which
litigation may be launched. And finally, the existence of the power
to condone non-compliance
with the time-bar is not necessarily
decisive.”
[24]
In
Rademeyer
v Ferreira
[10]
the Constitutional Court stated the law as it currently stands as
follows:
“
First,
a simplified, sweeping synopsis of, I dare say, the well-stablished
law. Prescription of a debt starts running as soon as
the debt
becomes due, or when knowledge of the debt becoming due can
reasonably be expected of the creditor. Prescription is judicially
interrupted when process initiating a lawsuit for recovery of that
particular debt is issued and served on the debtor.”
[25]
In the present case, the debt became due when the arbitrator’s
award came to the attention
of the applicant. Following
Assmang
,
the debt became due on that day particularly having regard to the
fact that there was no attempt to take the matter further on
the part
of the Department. Had there been a further legal proceeding which
suspended the operation of the award the position may
have been
different.
[26]
The subjective view of the Minister is simply not a prerequisite for
the validity of the award
and could not on its own delay the date
upon which the debt became due – what if the Minister had never
said anything? Of
course, this would not and could not mean that the
running of prescription was delayed indefinitely.
[27]
Accepting that the prescription started running on 5 October 2019 and
was completed on 4 October
2022, the question of whether the time
period of three years constitutes an unjustifiable limitation insofar
as issue and service
of process is concerned arises. The applicant
was represented by attorneys at least from 13 October 2021 and on 4
October 2022.
There is nothing in the papers before this court to
indicate why, the applicant with professional representation was
unable to
ensure that the summons was served on the same day it was
issued. Without any factual basis upon which the inability to comply
with the law as it stands, in circumstances where compliance was
clearly within the power of the applicant does not without more
sustain a constitutional challenge. Constitutional challenges are not
brought to correct either willful or negligent oversight
on the part
of a particular litigant or their representatives.
[28]
For the reasons set out above I find that condonation for the late
filing of the section 3 notice
is to be refused. In summary, while
there may have been no prejudice to the respondents as a result of
the late delivery of the
notice, the applicant has failed to
demonstrate that her claim did not become prescribed in consequence
of the late service of
process and furthermore that no good cause was
shown for the delivery of the notice some 18 months out of time.
[29]
It was argued that because a constitutional issue was raised, should
I refuse the application
there should be no order for costs. I
disagree. Costs should follow the result and that is the order I
intend to make.
[30]
It is ordered:
[30.1]
The application for condonation for the late delivery of the
applicants notice in terms
of section 3(1) of Act 40 of 2002 is
refused.
[30.2]
The applicant is ordered to pay the costs of the respondent on the
scale as between party
and party, Scale B.
A MILLAR
JUDGE
OF THE HIGH COURT
GAUTENG DIVISION,
PRETORIA
HEARD ON:
7 MAY 2026
JUDGMENT DELIVERED ON:
20 MAY 2026
COUNSEL FOR THE
APPLICANT:
ADV. SD MBEKI
INSTRUCTED BY:
AVELA NONTSO ATTORNEYS
INC.
REFERENCE:
MS. A NONTSO
COUNSEL FOR THE
RESPONDENTS:
ADV. YF SALOJEE
INSTRUCTED BY:
THE STATE ATTORNEY,
PRETORIA
REFERENCE:
MS. CP AFONSO
[1]
40
of 2002.
[2]
Section
3(2)(a).
[3]
Minister
of Justice and Constitutional Development v Moleko
[2008] 3 All SA 47 (SCA).
[4]
Interpretation
Act 33 of 1957.
[5]
“
Subject
to the provisions of subsections (2), (3) and (4), prescription
shall commence to run as soon as the debt is due.”
[6]
The
section provides that the period of prescription, “
save
where an Act of Parliament provides otherwise, 3 years in respect of
any other debt.”
[7]
68
of 1969.
[8]
2021
(6) SA 345
(SCA) at paras [17] and [18].
[9]
2009
(6) SA 323
(CC) at para [51]-[52].
[10]
2025
(2) SA 1
(CC) at para [59].