IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
In the matter between:
KEALEBOGA KELVIN MOLEFE
And
MINISTER OF POLICE
NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS
Coram: Reddy J
Heard: 29 June 2026
CASE NO: 904/2021
Not Reportable
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
Delivered : This j udgment was electronically circulated to the parties' legal
representatives by e-mail and released on SAFLII and uploaded to Caselines. The
date and time of hand down are deemed to be 16h00 on 29 June 2026.
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Summary: Condonat ion - s 3(4) or lhc institution of Legal Proceedings Against
Certain Organs of State Act 40 of 2002 claim for unlawfu l arrest and detention
accrues, at tht! latest, on release on bail, and is distinct from a claim for maliciou s
prosecution, which only accrues on favourab le termination of lhe prosecution ·
notice six to seven wcch.s late in respect of the former claim - good cause shown,
bcmg a legal po~il1on reasom,bly hdd on advice though later overtaken by binding
authority, and to be distinguished from mere ignorance of the law no unreasonable
prejudice shown - condonation granted in respccl of the First Respondent, and, in
so far as necessary, in rc5pect of the Second Respondent - costs in the cause.
JlJDGMENT
REDDY .J
Introduction
I I I Hcforc this court sits an appliLation for condonation brought by the applicant,
Kcaleboga Kelvin Molcfe (Molefc). It is predicated in terms of s 3(4) of the
lnstitution or Legal Proceedings Against Certain Organs of State Act' (the
Act), against the first re~pondent, the Minister of Police (the Minister), and
the second respondent. the National Director of Public Prosecutio ns (the
National Director). Molcfe's application arises from a special plea raised by
the Ministe1 and the National Director to the effect that Molefc failed to
comp ly with the notice provisions of s 3 orthc Act. The special plea is founded
1 Act 40 of:?002
1
on two legs. First as to the timing of the notice served on the Minister and
second as to the absence of any proven notice on the National Director. The
Minister and the National Director oppose the application.
[2] On 24 February 2026, the action was enrolled for trial before this Court but
could not proceed, the Minister and the National Director being adamant that
the srecial plea had not been met and that a substantiv e condonation
application was required . Accordingly, I directed that this application serve
before me, virtually, on 23 March 2026. On the latter date, l postponed the
matter to 2 7 March 2026 for heads of argument, filed on that date by Advocate
Scholt.l for Molcfc and /\dvocatc Mologadi for the Minister and the National
Director.
The sequence of affidavits
13] The complete application comprised of the follow ing. A founding affidavit
dcpm,cd to by Molefc. 1 he answering affidavit was deposed to by Lieutenant
Colonel O.G. Mammo of the SAPS North West Provincial Office, expressly
on behalt of the Minister alone. No replying affidavit was filed, there being,
on Molcfc's mstructions, nothing further to add. 'l he matter falls to be decided
on these papers.
The factual backiround
14] Molcfe was arrested on 6 January 2020 on suspic ion of arson and murder, and
was rclcac;ed on bail on 30 March 2020. On 2 October 2020 Molefc was
discharged in terms of s 174 of the Criminal Procedure Act 51 of 1977.
4
15] It is common cause that a notice in terms ofs 3(1) of the Act> addressed to the
Minister, was posted on 11 November 2020 and received by the National
Commissioner's office on 17 November 2020, acknow ledged in writing by
Captain J.S. de Swardt on 12 December 2020. The Minister pleads that, were
any cause of action to lie against him. notice oughl to have been served by 29
September 2020.
[ 6] Insofar as the Notional Director is concemeu, the special plea goes further.
assertmg that no notice was ever given to him at all> rendering the action
against him premature in its entirety. Molefc asserts that an identica l notice
was posted to thl! National Director on the same date) but plainly admils he
cannot produce proof of posting. this having alleged ly been lost by his
erstwhile attorney durmg an office relocation in 2021.
The partic!!I' submissions
Mole/e's
[7] Advocate Scholt1: contended that Molefe's claim for unlawful arrest and
detention, like hi!, claim for malicious prosecution, ought to be treated as a
continuing wrong, accruing only upon his discharge on 2 October 2020.
Advocate Scholtz reasons that since the quantum of his detention could not be
assessed until its duration was known, the notice served on 11 and 17
No\cmber 2020 was on this footing timeous 111 every respect.
5
l8J Advocate Scholtz advances that thi~ approach finds support in Makhwelo v
A1im\te, uj Safety and Sec:unty 2, klmhobi Albert Tlake v The Minister of
Police and Anotfu.,r-3 and tvfashah<i v \1inister of Police and that, in any event,
the Minister and the National Director had identified no prejudice flowing
from the delay. Ihat bemg so, Advocate Scholtz posits that such condonation,
if needed at all, ought readily to be granted with costs against the Minister and
National Director.
The A1inister und National Director
191 Advocate Mologadi, on behalf of the Minister and the National Director,
submitted that the cause of action for unlawful arrest and detention is complete
upon deprivation of libett)'. or at the latest upon release on bail. Advocate
Mologadi contended that the claim tor unlawful arrest and detention must be
treated as separate and distinct from a subsequent claim for malicious
pro~ecution, relying on the central sepurntion of claims recognized in
\1/mabasotho Chrisrmah O/esit.r;e N. 0. v Minister of Polu:e5 . On this basis, he
argued that the once-and f01·~all rule prevent s a plaintiff from treating separate
causl!s of action as a sing le, unfold ing wrong to justify the late service of a
statutory notice.
( J 01 Advocate Mologudi opined tha t Molclc's notice was accordingly late by some
six to seven weeks; that no notice whatsoever was given to the National
2 ,\.la/r.Jmdo 1' :1./inisl<·r of.\a/dv and Sernri1_1 2017 (I) S,\ :!74 (GJ) para 55-62
1 ,\,fothohi ,1/ben TlaJ.., 1· /he ,\1111i,1,.1r o/f'olice and A11111her' (J77l101.J) [20'17] LAF~I IC 178 (20October1017)
pma 9.
4 \fo~hubu ,, ,\l1111st.r -1/ 1'1•/i~·e {5N40 .1W12) 1202.l] /,,\{il'PI IC 202.3 l 18 December 2023) par.is 17-20
,\.lnwhusofh(I < ·111 i.,u1111h Ole.,it.1,• N. 0. ,. M1m~Je1 of Policl! [202:l J / i\CC 3.5: 1 024 C') BC!. R 238 (CC)
6
Director, rendering the action against him premature. Importantly, Advocate
Mologa<li claimed that Molefc's explanation lacked candour and bona jides.
Sihrnificantly Advocate Mologadi contended that as Molcfc's prospects of
succes::i being v.cak given the reasonable suspicion underlying his arrest and
the prima facie case underlying his prosecution, condonalion ought to be
refused with costs.
Legal princir>les
[ 11 l Sl..!ction 3( I) of the Act bars procc!.!dings against an organ of state absent
written notice of intention to sue, or its consent to proceed without, or upon,
non-compliant notice. Section 3(2)(a) of the Act requires that notice be served
within six months or the date the debt became due.
l 12] In instances when! the organ of state relics on a failure to serve notice as
required. s J( 4) (a) of the Act pem11ts an application for condonat ion of such
failure. The language of these provisions is broad enough to cover both late
notice and notice not proven to have been given at all. Section 3(4)(b) of the
Act empowers the court to grant condonation if the Lripartite factors arc
satisfied. 'These arc that (i) the debt has not prescribed; (ii) good cause exists
for the failure; and (iii) the organ of state was not unreasonably prejudiced.
rhese requirements are conj unctivc in their application.
l 13] Good cause requires more than a routine recitation of the delay. Our law
requires a full and reasonable explanation covering the entire period of non
compliance, weighed together with the prospects of success and the bonafi.des
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0f the application.<' holistica lly. 111 determining whether condonation accords
with the interests of justice. 7
114 I In sum. condonation will be grante d only where the debt has not prescribed ,
good cause is "hown for the relevant failure, and the organ of state has not
been unreasonably prejudiced thereby. H is to the application of these
requirements, and to the anterior question of when Molcfc' s claims became
due. that 1 now turn.
l I 51 A debt is <.lue once the: creditor has acquired a complete cause of action, 8 that
is, once the creditor has knowledge of the minimum facts nece ssary to institute
action.<> Impor tantly, the wrongful deprivation of liberty constitutes a
compleled cause of action from the moment it occurs, and a plaintiff need not
appreciate the conduct' s unlawfulness for the debt to become due. 10
[ 16 J Preccdential autho rity, commencing with A4akhwelo v Minister (?/"Safety and
Security' 1and followed in flake' : and Mashaba1·\ had previou sly treated
unlawful arresl and detention as part of a continuing wrong that only
concluded upon the finaliLation of the criminal proceeding s. However, in
O/esttse 14• the apex Court clarified the proper boundancs of these delicts. The
Constitutional Court confirmed that unlav.f ul arrest and detention and
malicious prosecution constit ute two entirely separate and distinct causes of
\.latli1ula l' .1,,/ini.\fCI vf,'>a/<'/.1' om/ ,"i.!c11/"lt_1 2008 (•l) <.:,\ J 12 (SCA) para 12.
Hadinda suprn parn 12.
'Tn,1, ,,. and 1nothcn · Ot·nd 1.UlH, (4) "A 168 (S( ·\) para 16.
'1A1t,11.,l.t1 off 111am·s• v Gore !\JO 1007 (I)<.;\ 111 (SC\) para 17.
'\,/to/..,)l~Va ~ 'vlini.,lt-r l!f l'ol1<e 1018 ('i) SA 2:' (( C)
11 \1akh,relo op cit fn 2..
//0A1· op cit fn 3.
' \1u.,lwh.i op cit f"n 4.
11 < Jlcsllw op cit fi, 5
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action. Crucially, the ape'< Court held that the common law once and for all
rule appht.!s strictly to a single cause of action; it docs not bar a litigant from
pur-;uing separate claims independently, nor does it require a litigant to delay
an already accrued claim for unlawful a1Test merely because a separate claim
for malic1ou~ prosecution might arise at a later date.
l l 71 Conclusively, applying the clear distinction upheld in Olesitse, Molefo's claim
against the Minister for unlawful arrest and detention accrued, at the latest,
upon his release on bail on 30 March 2020. The six-month statutory period
for this specific cause of action accordingly expired on 30 September 2020.
l'he notice, served on 17 November 2020, was late by some six to seven
weeks, and con<lonation is required.
l I 8] The claim for malicious prosecution, by contrast, only became due on 2
October 2020. the date of discharge, the six-month period expiring on 2 April
2021. The notice, servcu on 17 November 2020, was comfortably timeous in
that respect , as the Minister and the National Director correctly concede.
The position of tile National Director
f191 Insular as the special pica contends that no notice whatsoever was given to
the National Director, a difficulty arises, since this concerns not the date of
accrual but whether the precondition in s 3( I )(a) was met at al1. Molefe's
explanation, that proof of post mg was lost by his erstwhi le attorney, is at best
flimsy. If that had bl!en the final word, this Court would have had real
difficulty accepting , on u preponderance of probability, that notice was served
on the National Director.
,,
120] To this end, Advocate Scholtz postulated that the answering affidavit is
<lcposcd to expressly, and only, on behalf of the Minister, such that the bare
asse1tion in the :special pica has never been placed on oath. In my assessment
final relief on motion ordinarily favours the respondent's version where a
genuine dispute of fact arises, applying the welt-known approach in Plascon
Evans Paints l.td v Van Riebee()k Paints (Pty) Ltd15, but that approach
presupposes such a dispute properly raised on the papers. The National
Director has simply not engaged on oath with Molefe's sworn asse1tion, and I
am not 111 inded agreeing that a genuine dispute arises for resolution in his
favour.
121] In uny event, adopting the mosl benevolent approach to the National Director,
that no notice was scrvc<l upon him ai all, condonation shoul<l be granted. To
my mind, this is predicated on the following. 1 he explanation, though flimsy,
is not contrived, and 1s consistent w1th Molefe's good faith engagement with
his notice obligations genera lly. Moreover. no prejudice has been shown; and
the National Director's interests coincide substantially with the Minister's,
both having had every opp0ttunity to investigate the claim since the action
was instituted in 2021.
Uf'lu.$t·u11-£.ra,1, Pwm~ l.tdv Van l<lt'bt:cclr. /'.,uni.\ (Pty) 1,td 1984 (3) SA 6'.!J (A) at 634-635.
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Application of the coniunctivc requirements
Prescriptwn
f22] The aclion was mst1tutcd wdl withm the three-year prescriptive period
ca lculated from 30 M,trch 2020. There is no suggestion of prescription, and
this requirement is satisfied for both claims.
Good cause
123] Molefe's explanation for the delay in servi ng notice on the unlawful arrest and
detention claim is not that he was personally ignorant of the Jaw, which would
not avail him, but that a considered legal position was adopted on his behalf
and maintained cons is1ently, from his reply to the special plea filed on 13
March 2024 to the present, namely that his cause of action only arose upon
discharge. That position. though ultimately incorrect. was neither contrived
nor unreasonable when taken. finding suppo rt in _\,fukhwelo10• Tlake17 and
Mashaha n:i until settled against it by the Constitutional Court in Olesitse 19•
1241 A legal position taken on advice, honestly and consistently maintained, and
reasonable when adopted notwithstanding that it was Inter overtaken by
binding authority, is capable of constituting good cause. As l see ii, this is to
be distingui shcd from mere ignorance of the law. which would not constitute
good cause. The same consideratio n, reinforced by the fact that it was only
16 Op cit fn 2.
17 Op cit In 3.
'Op cit Iii 4.
'Op c;it fn 5.
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upon the matter bdng caJled for trial on 24 February 2026 that this Court
<lirccted a substantive application be brought, adequately expla ins the delay
in launching this application itself. of which the Minister and the National
Director complain.
Pre;11dice
[251 Neither the Minister nor the National Director has identified any prqjudice
with specificity flowing from the delay, beyond the commonplace incidents
and costs of opposing I itigation. There is no suggestion properly grounded
that eithcr's ahility to investigate the claim was compromised. In my view
neither has been unreasonably prejudiced.
Prospect'> <~f ~ucc:es,
l26] The Minist~r and the National Director contend that Molefc's prospects are
weak, the arrest having been founded on reasonable suspicion and the
prosecution on a pnma facic case. These are matters for trial. not for
detamination on 1he limited material before me in this interlocutory
appltcat10n. It suffices that the claims are not so manifestly unsustainable as
to warrant refusal of condonation on that ground alone.
Conclusion
1271 Weighing these matter') holistically, I am satisfied thnt it is in the interests of
justice that condonat1on be granted: in respect of the Minister, for the late
service of notice on the unlawful arrest and detention claim~ and, to the extent
Costs
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necessary, in respect of the National Director, for any failure to prove sct"'\'ice
of notice. fhc debt has not prescribed in either instance; good cause has been
shown; and ncithe1 has sufforc<l unreasonable prejudice.
l28l As to costs, there is no reason to deviate from the ordinary approach that costs
of an interlocutory application of this nature, occasioned by a special plea
raised in the bona fide exercise of the Minister and the National Director's
rights, should be costs in the cause, the question of liability remaining for trial.
Order
[29] In the result. the following order is made:
1. The Applicant's failure to serve a notice in tcnns of s 3(1) of the
Institution or Legal Proceedings Against Certain Organs of Slate Act
40 of 2002, within the period prescribed by s 3(2)(a) of the Act, in
respect ofht~ claim against the First Respondent for unlawful arrest and
dctcntmn , i~ condoned.
2. In so tar as it ma:>, be necessary, any failure by the Applicant to serve a
notice in terms of s 3( l) of the Act on the Second Respondent is
condoned.
3. The Applicant is grant~d leave to proceed with the legal proceedings
under the ab\we case number against the First and Second Respondents.
4. When set down for trial, the action is to serve before Reddy J.
5. l'he costs of this application shaJl be costs in the cause.
REDDY J
,JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
Appcaranc~s
For Molefc: Advocate f 1.J. Scho1tL
Instructed by: MPM Molcfo & Associates Attorneys. Mahikeng
For the Minister and the National Director: Advocate Mologadi
Instructed b) • The State Attorney. Mahikeng