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[2026] ZAGPJHC 568
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Mafafo v Minister of Police and Another (049721/2024) [2026] ZAGPJHC 568 (28 May 2026)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case
Number:
049721-2024
(1)
REPORTABLE: YES / NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED: YES/NO
In
the matter between:
LETLHOGONOLO
MAFAFO
Applicant
And
MINISTER
OF POLICE
First Respondent
NATIONAL
PROSECUTING AUTHORITY
Second Respondent
JUDGMENT
MVUBU, AJ '
Introduction
[1]
The Plaintiff (
Mafafo
) has instituted legal proceedings as set
out and defined in the Combined Summons issued out of this Court
under the abovementioned
case number. The process was issued on
07 May 2024. It is in respect of alleged conduct that occurred
on 17
May
2021 or 02 December 2021 and conduct that arose on 22 September 2022.
[2]
It is common cause that the action is against the Defendants as
defined in the Institution of Legal Proceedings against
Certain
Organs of State Act 40 of 2002 and ergo, notice was required to be
delivered to the Defendants before the proceedings were
instituted
and within the legislative period of 6 (six) months.
[3]
It is common cause that the notice was only given on 15 August 2023.
The Defendants object to the proceedings citing
that the Plaintiff
was required to delivered the notice earlier than 15 August 2023 –
according to the Defendants the Plaintiff
is approximately 440 days
late. Further to that, the Defendants argue that the late
delivery of the notice cannot be condoned
because the action was
brought outside the 3 (three) year prescription period.
][4]
In this application, then, this Court is invited to determine whether
the late delivery of the section 3(2) notice in
terms of the
Institution of Legal Proceedings against Certain Organs of State Act
(
the Act
) may be condoned.
Legal principles
governing condonation
[5]
It is trite that the requirements for an applicant seeking
condonation are set out in section 3(4) of the Act. The
section
provides that a court may grant an application if it is satisfied
that – (i) the debt has not been extinguished by
prescription;
(ii) good cause exists for the failure by the creditor; and (iii) the
organ of state was not unreasonably prejudiced
by the failure.
[6]
The requirements have been dealt with and explained in numerous court
decisions and I need not reinvent the wheel.
In summary of the
legal position, the Supreme Court of Appeal has established the
analysis as
“
[8] The phrase
‘if [the court] is satisfied’ in s 3(4)(b) has long been
recognised as setting a standard which is not
proof on a balance of
probability. Rather it is the overall impression made on a court
which brings a fair mind to the facts set
up by the parties. See eg
Die Afrikaanse Pers Beperk v Neser
1948
(2) SA 295
(C) at
297. I see no reason to place a stricter construction on it in the
present context.
[9] The first
requirement speaks for itself: the court must be satisfied that the
applicant relies on an extant cause of action.
That this is so in the
present instance has never been in dispute.”
[1]
[7]
A court need not embark on more than the requisites stated by the
Supreme Court of Appeal. I turn to the facts in
the present
application measured against the applicable legal requirements.
I do so in turn.
Claims have not
prescribed
[8]
In the instituted proceedings, the Plaintiff claims damages from the
Minister of Police – the First Defendant –
for an alleged
unlawful arrest and resultant detention. It is alleged that the
Plaintiff was arrested on 17 May 2021 and
his detention ended on 02
December 2021.
[9]
It is common cause that the Plaintiff was in custody until his
admission to bail on 02 December 2021. That is, the
Plaintiff
could not have brought the action before 02 December 2021 because the
detention element was not determined. In
argument, both Mr
Mudau (for the Plaintiff) and Mr Mgxesha (for the Defendants)
submitted that it would be remiss to expect the
Plaintiff to
institute proceedings while in custody and that, at best, the cause
of action (or debt) against the First Defendant
only arose on 02
December 2021.
[10]
In the result, the claim would have to have been brought (instituted)
on or before 01 December 2024. On a stricter
analysis, even if
the debt is said to have arisen on 17 May 2021 (date of arrest), the
claim would have to have been instituted
on or before 16 May 2024.
[11]
On either construction, the fact that the proceedings were instituted
on 07 May 2024 means that the proceedings
were instituted within
the time period and ergo the cause of action is extant.
[12]
That is, evidently, the claim against the First Defendant was
instituted within 3 (three) years and thus has not prescribed.
That captures the first, second and fourth claims.
[13]
The third claim is against the National Prosecuting Authority,
ostensibly for malicious prosecution. It is common
cause that
the prosecution failed on 22 September 2022 when the Plaintiff
was acquitted. Similarly, this claim (too)
has not prescribed
as it was launched within the 3 (three) period.
The Plaintiff has
demonstrated good cause
[14]
As far as the second requirement is concerned, an applicant for
condonation in terms of section 3(4) of the Act, a court
must decide
whether the applicant has produced acceptable reasons for nullifying,
in whole or at least a substantially, any culpability
on his or her
part which attaches to the delay in serving the notice timeously.
[15]
It is trite that strong merits may mitigate fault and whereas no
merits may render mitigation pointless. In this
regard, the
Supreme Court of Appeal found that there are two main elements:
15.1.
Rights to have the merits of his case tried by a court; and
15.2.
The right
of the organ of state not to be unduly prejudiced by the delay beyond
the statutorily prescribed limit for giving of notice.
[2]
[16]
At paragraph 4.3 of the Applicant’s Supplementary Founding
Affidavit, the following is recorded:
“
Applicant in
this case did not properly comply with Section 3 of Act 40 of 2002 as
the Notice was served on the
FIRST AND SECOND RESPONDENTS
which was served 143 days late from the date of acquittal.”
[17]
Poignantly, separate notices were sent and delivered to the
Respondents and each said notice read the same as follows:
“
1. We act on
behalf of Mr LETLHOGONOLO MAFAFO, our client / the claimant.
2. You are hereby
given notice that the claimant intends instituting action against you
for recovery of damages as a result of the
unlawful arrest and
detention by members of South African police (sic) service (sic).
3. On or about 17th of
May 2021, the claimant was unlawfully arrested around Dobsonville
mall by members of South African police
(sic) service (sic) whose
full particulars are unknown to the claimant.
4. The claimant was
arrested on the charges of theft out (sic) of motor vehicle without
any evidence linking him to the offense.
See the attached copy
of Notice of Rights dated 17th of May 2021.
5. Subsequent to his
arrest the claimant was detained at Dobsonville Police Station for a
period of one (1) day.
6. On the 18th of May
2021, the claimant was taken to the Roodepoort Magistrate (sic) Court
further detained in court holding cells
from 9am where he was denied
bail around 1pm and later transferred to Krugersdorp correctional
center for awaiting bail at approximately
3pm
6.1 On or about 21
st
December 2021 at Roodepoort Magistrate (sic) Court the claimant was
granted bail of R1000 (One thousand rand (sic)). The
claimant
was detained for a period of 8 months.
6.2 The claimant was
further prosecuted until 19
th
September 2022.
7. At all material
times the arresting officers were acting within the course and scope
of their employment with the Minister of
police (sic).
Therefore the minister (sic) of police (sic) is vicariously liable
for wrongful act of his employees.
8. Both his arrest and
detention were unlawful and wrongful as a result our client suffered
damages being deprivation of liberty,
humiliation, loss of income,
inconvenience and discomfort and pain and suffering to the value of
R12 000 000 (Twelve
million rand (sic)
9. It is our
instruction to demand from you as we hereby do payment in sum of
R12 000 000 for unlawful arrest and detention
within 60
days failing which summons will be issued without further notice.”
[18]
While the eventual Combined Summons contain claims pertaining to
damage of reputation and wrongful/or Malicious Prosecution,
nothing
of the sort is mentioned in the notice. That is, the notices do
not disclose a case for Malicious Prosecution.
[19]
Simply, there is no notice given to the Second Respondent.
There being no notice, there can be no condonation.
Put
differently, the notice delivered to the Second Respondent pertains
to a claim for unlawful arrest and detention that was to
be
instituted against the Minister of Police (the First Respondent)
not
the Second Respondent. Besides, there can – with respect
– be no allegation that the Second Respondent caused
the
arrest. A cause of action along those lines would stand to fail
and have no merit at all.
[20]
It follows, there is no notice delivered to the Second Respondent
that warrants condonation. Alternatively, the
notice
purportedly delivered to the Second Respondent is so defective that
it stands to be rejected as it does not disclose any
cause of action
– let alone a debt – against the Second Respondent.
There are no merits, at all evidenced by
the defective notice
delivered and given to the Second Respondent. Accordingly,
condonation in respect of the late delivery
of the defective notice
(better expressed as a failure to give notice), cannot be condoned.
[21]
As pertains to the First Defendant. We know that the Applicant
was admitted on bail in December 2021. That
date marked the
completion of the claim against the First Respondent – as
clearly evidenced by the notice. The Applicant
offers no
explanation, whatsoever, for the period December 2021 to September
2022. That is, a period of 9 (nine) months has
gone without any
explanation.
[22]
Even accepting that the Applicant needed the docket to ascertain the
merits of his claim for unlawful arrest and detention,
it would seem
that paragraph 6.2 of the Particulars of Claim betray any access to
the docket. The said paragraph (much like
the quoted paragraph
3 of the notice) do not disclose the arrestor’s details because
they are unknown. If the Applicant
had the docket, one would
expect them to obtain the details of the said arresting officer
therefrom.
[23]
For ease of reference, paragraph 6.2 of the Particulars of Claim
reads:
“
6.2 Plaintiff
was arrested by the SAPS in the course of performing their duty whose
further particulars are unknown
to the Plaintiff
on charges of theft out (sic) of motor vehicle without any evidence
linking the Plaintiff to the commission of
the offense.”
[24]
As correctly submitted by counsel for the Respondents, despite using
the attempts to obtain the docket as reason for
the delay, at no
point did the Applicant suggest that he ultimately received the
docket. The Applicant does not mention when,
if at all, the
docket was received.
[25]
In any event, I have mentioned that the case against the Minister of
Police (First Respondent) crystalised in December
2021 when the
Applicant was released from custody. The detention element
being complete. No docket was required in
order for the
Applicant to appreciate the relevant facts – he already knew
those facts.
[26]
Compounding matters for the Applicant is that he instructed attorneys
as at November 2022. Still the notice was
only dispatched on 15
August 2023. No explanation – perhaps satisfactory
explanation – is given regarding why
the attorneys could not
draw the notice immediately or soon thereafter of taking
instructions. Paragraph 1 of the Power of
Attorney records the
mandate as:
“
1. Ascertain
whether I am entitled to recover damages for unlawful arrest and
detention by the South African Police Service.”
[27]
What is of further curiosity is paragraph 7.3 of the Founding
Affidavit in the application for condonation. It
is reads
thusly:
“
7.3 On or about
1
st
December 2022, Applicant’s
attorneys applied for the docket (Case No 220/05/2021) at Dobsonville
police (sic) station (sic)
under my name. On the 4
th
of April 2023 Dobsonville Police station (sic) informed Applicant’s
attorneys that the docket was transferred to Roodepoort
police (sic)
station (sic). See annexure marked “
LM1
”
and
“
LM2
””
[28]
The said LM1 encloses the Applicant’s Notice of Rights –
a document that evidences the fact of an arrest.
It is also
apparent the Notice of Rights when, where, and for what reason the
Applicant was arrested. No explanation is provided
by the
Applicant to pontify how it is he could not send the notice, at least
to the First Respondent. In any event, the same
notice was sent
to both Respondents, to the Second Respondent as well.
[29]
I am not persuaded by the explanation that the Applicant first sought
to ascertain the details and information relating
to his potential
claim against the Second Respondent. The Applicant added, that
he did not wish to send the notices piecemeal
and ergo, the delay.
Yet, the notices contained not a word about the malicious prosecution
or any other claim, for that matter,
besides the unlawful arrest and
detention claim.
[30]
The explanation offered by the Applicant is poor that it stands to be
rejected outright. It is accordingly rejected.
[31]
That being the position, the second requirement is not met and ends
the analysis. It follows, this Court need not
deal with the
question of prejudice.
[32]
Even if I am wrong and was required to consider the question of
prejudice, no case was made by the Applicant. In
this regard,
this is what was stated by the Applicant, as far as prejudice is
concerned:
“
9
PREJUDICE
9.1 There will be no
prejudice on the part of the Respondent as this matter has not yet
prescribed for litigation and reasons for
such late-compliance with
Section 3 of the Institution of Legal Proceedings Against Certain
Organs of State Act is justifiable
having regard to Applicant
circumstances.
9.2 It would only be
the Applicant that would suffer immense prejudice if the present
application were to be refused.”
[33]
That is inadequate in assisting a court to evaluate the prejudice
attended to both parties. Making matters worse,
even as it
relates to the prospects of success, no case was made.
[34]
In the result, the Applicant has failed to make out a case warranting
condonation for his failure to comply with section
3 of the Act.
Costs
[35]
The ordinary rule is that costs follow the course. I find no
reason to deviate therefrom.
Order
[36]
In the result, I make the following order:
36.1. The
Applicant’s application for condonation is dismissed with costs
on scale A.
K.
MVUBU
ACTING JUDGE OF THE
HIGH COURT
GAUTENG DIVISION,
JOHANNESBURG
This Judgment was
handed down electronically by circulation to the parties/their legal
representatives by email and by uploading
to the electronic file on
Court Online/CaseLines. The date for hand-down is deemed to be 28 May
2026.
Date of
Hearing:
25 May 2026
Date of
Judgement:
28 May 2026
For the
Applicant:
Adv. RV. Mudau
Instructed
by:
FC Nwanezi Agbugba Attorneys Inc.
For the
Respondents:
Adv. M. Mgxashe
Instructed
by:
The State Attorney, Johannesburg
[1]
Madinda
v Minister of Safety and Security, Republic of South Africa
(153/07)
[2008] ZASCA 34
;
[2008] 3 All SA 143
(SCA);
2008 (4) SA 312
(SCA) (28 March 2008) (
Madinda
).
[2]
See
Madinda
para 12.