IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION-BISHO)
CASE NO:- 1013/2024
In the matter between:
YANGA MDLUDLU APPLICANT
And
MINISTER OF POLICE 1ST RESPONDENT
NATIONAL DIRECTOR OF PUBLIC 2ND RESPONDENT
PROSECUTIONS
JUDGMENT
Nkele AJ
INTRODUCTION
[1] As a prologue, it is quite appropriate to state that while ignorance or
mistake of the law is cognisable as an excuse in South African law, the
threshold is very high. To even be considered, the ignorance that is the
result of gross negligence, recklessness or failure to take basic steps to
ascertain legal requirements will not be accepted1.
[2] When condonation is sought, the main consideration is whether it will be
in the interests of justice to grant it. In evaluating this, the court will look
at a conspectus of facts including the degree of lateness, the importance
of the case, the convenience of the court, the explanation for the delay,
prejudice to the other party, the prospects of success and the avoidance of
unnecessary delay in the administration of justice2.
[3] In the replying affidavit the applicant also sought condonation for the late
filing of that affidavit. The respondents did not raise any issue about that
either in their heads of argument or during argument stage.
FACTUAL BACKGROUND
[4] The applicant instituted an action against the respondents to recover
damages arising from his unlawful arrest, detention as well as his
malicious prosecution. it is common cause that the applicant was arrested
on 27 March 2023 and when he appeared in court on 29 March 2023, he
was charged with rape and bail was denied until the 14th of November
2023 when the charges were withdrawn.
1 Oliphant v Jonck (09/21910) [2016] ZAGPJHC 76 30 March 2016.
2 Menziwa v Ndokwana – Leave to Appeal (20872/2021) ZAWCHC 294 (22 November 2023) paras [3] and [4].
[5] Almost a year later, on the 10th of October 2024, the applicant consulted
his present legal representatives and that culminated into a letter of
demand being served upon the respondents on 17 October 2024.
[6] What then followed is that summons was served upon the respondents
and that action is fully defended by the 1 st respondent in that a plea
justifying the arrest on the basis that the arrest was effected pursuant to
reasonable suspicion that the applicant had committed a sexual offence.
The 2nd respondent’s plea is to the effect that the prosecution was within
the bounds of the law and in consideration of the nature of the offence
committed, that being a charge of rape.
[7] In addition to the pleas referred to above, a special plea was also filed on
behalf of both respondents which is to the effect that the applicant has
failed to timeously deliver a statutory notice as contemplated in section
3(1) of the Institution Of Legal Proceedings Against Certain Organs
Of The State Act 3. The applicant then launched this condonation
application with a view to address the issue of late delivery of the
statutory raised in the special plea by the respondents.
THE PARTIES’ CONTENTIONS
THE APPLICANT’S CASE
[8] The applicant, in the condonation application, seeks an order granting
him leave to pursue the action for damages he has instituted against the
respondents, arising from his unlawful arrest, detention and malicious
3 Act No. 40 of 2002, section 3(1).
prosecution. He only seeks a costs order against the respondents, in the
event of opposition.
[9] In substantiation, he states that at the time that he was released from
detention, that is on 14 November 2023 , he did not know that he could
institute legal proceedings to recover damages against the respondents.
He did not know that he can institute a claim for damages, consequent
upon the violation of his rights. Even the Legal Aid Attorneys who
represented him during the Criminal Case did not advise him about his
right to institute a civil claim. All that he was sure about was that he was
innocent and that kept him wondering what evidence there was against
him, at the disposal of the police which prompted them to arrest him.
[10] He only consulted his present legal representatives on 10 October 2024
when he was advised that he has a valid cause of action against the
respondents, which cause of action is grounded on the constitutional right
guaranteeing one’s liberty, dignity and good name. He then instructed
them to launch the action against the respondents. In pursuance of his
instructions, a letter of demand was served upon both respondents on 17
October 2024. Although the applicant acknowledges that a considerable
long period of time elapsed between his release from prison and the
institution of the action proceedings, he attributes his failure to timeously
serve the mandatory statutory notice to his ignorance and lack of
knowledge of what the statute required him to do before instituting a civil
claim.
[11] In his Founding Affidavit, the applicant asserts that he has instituted a
claim against the respondents and has caused a summons to be served
upon them for unlawful deprivation of his liberty as well as malicious
prosecution. He is adamant and confident that he has made out a
formidable case, and the respondents must answer why he was arrested,
detained and maliciously prosecuted. By raising the special plea, the
respondents are trying to avoid doing so, as they seek to rely on a
technicality.
[12] The applicant further contends that it is only the statutory notice that was
served beyond the six (6) months period prescribed in the Act. Summons
was served well before the lapse of the three -year prescriptive period,
calculated from the date of his initial arrest. The respondents have also
filed pleas in which their defences are clearly narrated. Therefore, the
applicant contends that no prejudice will be suffered by the respondents if
the condonation sought is granted and, if there is any prejudice, suc h is
far outweighed by that which will be suffered by the applicant, if
condonation is refused. This is so because the respondents’ rights have
been protected already in that pleas have been filed.
THE RESPONDENTS’ CASE
[13] On the other hand, the respondents vehemently oppose the application,
and, in their opposition, they state that the applicant has dismally failed to
demonstrate good cause for failure to timeously serve the statutory notice.
To expatiate on this proposition the respondents further state that the
applicant has always known and maintained his innocence throughout the
time that his rights were trampled upon and violated. That should have
made him to desire to seek legal advice immediately after he was released
from prison on the 14th of November 2023 . This is so because as at the
time, he was aware of the minimum facts that gave rise to the cause of
action, which is the core and foundation of his damages claim against the
respondents. In any event, the respondents assert, the applicant has failed
to narrate the pertinent details of the circumstances that led him to decide
to consult his legal representatives only on 10 October 2024. He has not
disclosed when he became aware that his rights have been infringed and
violated nor has he been open and candid to the court regarding his level
of sophistication, inclusive of his standard of education.
[14] Because the applicant has failed to properly explain and present sufficient
facts that give a reasonable explanation of his delay, they dispute that his
failure to file the mandatory statutory notice on time was not wilful and
deliberate. This is so because the period of delay is excessive and may
prejudice the respondents in defending the action, as members who
handled the case may not be available to testify or have full recollection
of the facts giving rise to the applicant’s damages claim.
[15] The respondents further contend, in their opposition, that the applicant’s
claim is doomed to fail because he was arrested on reasonable suspicion
of having committed an offence. So, when he was arrested the members
of the 1 st respondent reasonably suspected him of having committed the
offence he was accused of. And because he had previous convictions, he
was not eligible to be released by the respondents on bail and had to
apply formally for bail.
[16] Similarly, the members of the 2 nd respondents, having perused the docket
contents provided by the 1 st respondents’ members, had a reasonable and
probable cause to enrol the matter and prosecute the applicant
accordingly.
[17] On that basis, and particularly because the applicant has failed to present
facts and reasons that account for the enormous delay to demonstrate that
it was bona fide and not wilful and deliberate, he has failed to make out a
proper case for the relief sought. The respondents therefore pray for the
dismissal of the Condonation Application with costs.
THE APPLICABLE LEGAL PRINCIPLES
[18] It is a well-established principle that the provisions of Chapter III of the
Prescription Act4 applies to claims against organs of the state. The Act
makes no distinction between the debts or claims against the state and
other debts about when prescription begins to run, the period of
prescription, delay in the completion of prescription as well as its
interruption5. Section 2 of the Act ratifies and endorses this salient
principle. It does so by providing that, subject to the provisions of section
3 and subsections (3) and (4), a debt which became due before the fixed
date, which has not been extinguished by prescription and in respect of
which legal proceedings were not instituted before that date; or after the
fixed date, will be extinguished by prescription as contemplated in
Chapter III of the Act6.
4 Prescription Act No. 68 1969, Chapter III
5 Amler’s Precedents of Pleadings 10th Ed page 352
6 Minister of Finance and Others v Gore NO 2007 (1) SA 111 (SCA) para [12]
[19] The preamble to the Institution of Legal Proceedings Against Certain
Organs of the State Act no. 42 of 2002 provides that:
“AND RECOGNISING THAT:
The Prescription Act No 68 of 1969, being the cornerstone of the laws
regulating the extinction of debts by prescription, consolidated and amended
the laws relating to prescription;
Some of the provisions of existing laws which provide for different periods of
prescription in respect of certain debts are inconsistent with the periods of
prescription prescribed by the Prescription Act, 1969.
AND BEARING IN MIND THAT:
South Africa has moved from a parliamentary sovereign state to a democratic
constitutional state;
The Bill of rights is the cornerstone of democratic South Africa and that the
State must protect, promote and fulfil the rights in the Bill of Rights”7.
[20] A creditor who has instituted damages claim against an organ of the state,
is perfectly entitled to apply for condonation for either total failure to
issue a statutory notice or late filing thereof, if the organ of state
concerned relies on that point, even after summons has been served. A
court seized with such an application is perfectly entitled to grant such
condonation, in a well deserving manner, and if it is satisfied that:
(a) The debt has not been extinguished by prescription;
(b) Good cause exists for the creditor’s failure to serve the notice;
and,
(c) The organ of the state is not unreasonably prejudiced by the
failure.
7 Institution Of Legal Proceedings Against Certain Organs Of The State Act No. 40 of 2002.
[21] The Supreme Court of Appeal in interpreting and dealing with the three
above stated requirements, in Minister of Safety and Security v De Witt it
held that, where no notice is given by the creditor of his intention to
institute legal proceedings against an organ of the state, as required by
section 3(1) of Act 40 of 2002 , or where the notice is given but defective
in some respect, a court may condone the failure to give notice, or the
giving of defective notice, after summons or application has been served 8.
That discretion may only be exercised, however, where if the three
criteria in section 3(4)(b) of Act 40 of 2002 9 are met, in that the debt has
not been extinguished by prescription; that good cause exists for the
creditor’s failure; and the organ of the state has not been unduly
prejudiced10.
[22] What the authorities have made clear is that the discretion afforded to the
court by section 3(1) of Act 40 of 2002 is not a narrow one but a very
broad and wide one. The Supreme Court of Appeal in Premier of Western
Cape v Lakay , in lucid terms, narrated this principle by stating that the
courts are vested with statutory, rather an inherent procedural, discretion
when evaluating condonation for non -compliance with the six months’
notice requirement in the Institution of Legal Proceedings Against Certain
Organs of the State Act11.
8 Minister of Safety and Security v De Witt 2009 (1) SA 4178 paragraphs [5], [[11] and [11] at 460D-F; 462B-C
and 462F.
9 Institution Of Legal Proceedings Against Certain Organs Of The State Act No. 40 of 2002, section 3(4)(b)
10 Amler’s Precedents ibid page 353.
11 Premier of the Western Cape v Lakay 2012 (2) SA 1 at para [14].
[23] It is a trite and an established principle that the interests of justice play an
important role in condonation applications. In this regard the apex court
in Van Wyk v Unitas Hospital eloquently said:
“This court has held that the standard for considering an application for
condonation is the interests of justice. Whether it is in the interests of justice to
grant condonation depends on the facts and circumstances of the case.
Factors that are relevant to this enquiry include but not limited to the nature of
the relief sought, the extent and the cause of the delay, the effect of the delay
on the administration of justice and other litigants, the reasonableness of the
explanation for the delay, the importance of the issue to be raised in the
intended appeal and the prospects of success”12.
DISCUSSION AND ANALYSIS
[24] To decide whether the applicant has met the three -part condonation test,
that is whether he has satisfied the jurisdictional requirements prescribed
by section 3(4) of Act 40 of 2002 , one must have regard to the facts and
circumstances of the present matter. The applicant, in other words, must
satisfy the court that he has good cause, that no unreasonable prejudice
will be suffered by the state and that the claim has not prescribed13.
[25] As foreshadowed above, the applicant’s case is premised on the fact that
he was completely oblivious of the statutory requirement to issue and
deliver a notice of intended action within six months from the date of the
incident, prior to the institution of legal proceedings. He only became
12 Van Wyk v Unitas Hospital 2008 (2) SA 472 (CC) at para [20]; Sv Mencer 2004 (2) SA 598 (CC) para [4];
Brummer v Gorfil Brothers Investments (Pty) Ltd and Others 2000 (2)SA 873 (CC) para [3]; Head of
Department, Department of Education, Limpopo Province v Settlers Agricultural School and Others 2003 (11)
BCLR 1212 (CC) para [11]
13 Ibid section 3(4) Act 40 of 2002; Minister of Safety and Security v De Witt 2009 (1) SA 457 (SCA), Premier
of the Western Cape Provincial Government NO v BL [2012] 1 All SA 465 (SCA); 2012 (2) SA 1 (SCA).
aware of such a requirement when he consulted his legal representatives
on 10 October 2024. It is then that he instructed them to do so, and they
promptly delivered the notice on 17 October 2024 . What therefore
remains for consideration in this regard is whether that explanation is
enough to meet or satisfy the threshold of good cause. To exonerate
himself from blame he relies on his lack of knowledge of the applicable
statutory provision requiring a notice to be delivered to an organ of state,
prior to the institution of legal proceedings.
[26] Effectively that defence boils down to what is general known as
ignorance of the law. In S v Bloem the then Appellate Division of the
Supreme Court had this to say in explaining what the legal significance of
the ignorance of the law excuse is as a defence:
“At this stage of our legal development it must be accepted that the cliché that
everyone is presumed to know the law has no ground for its existence and that
the view that ignorance of the law is no excuse is not legally applicable in the
present day concept of mens rea in our law: but the approach that can be
expected of a person who, in a modern state, when many facets of the facts
and omissions of the legal subject are controlled by legal provisions, involves
himself in a particular sphere, that he should keep himself informed of the
legal provisions which are applicable to that particular sphere, can be
approved”14.
[27] The Appellate Division, in the Bloem decision, further stated that “In the
interpretation of the definition of statutory offence it is presumed, until the contrary
appears, that the legislature did not wish to make an innocent illegal act punishable --
-. In such a case it must be accepted that, when the state has led evidence that the
prohibited act has been committed, an inference can be drawn, depending on the
14 S v Bloem 1977 (3) SA 513 (A) at 514E-F.
circumstances, that the accused wishes to rely on a defence that she did not know that
the act was unlawful, her defence can succeed if it can be inferred that her act was
unlawful; and further, when clap only, and not dolus alone, is required as mens rea,
there is also a reasonable possibility that juridically she could not be blamed , i.e.
that, having regard to all the circumstances, it is reasonably possible that she acted
with necessary circumspection in order to inform herself of what was required of her
in connection with the question of whether or not permission was required to take
money of the country. Should there be, on the evidence, i.e. including the evidence that
the act was committed, a reasonable doubt whether the accused did in fact have mens
rea, in the sense described above, the State would not have proved its case beyond
reasonable doubt”15.
[28] In S v Waglines (Pty) Ltd and Another Didcot J , as he then was, lucidly
and eloquently explained the practical implications of the ignorance of
the law excuse defence in our law when he said:
“Ignorance of or mistake about the law is indeed an excuse cognisable by
our courts. The excuse does not always amount, however, to an acceptable
one. That the ignorance or mistake must first be both genuine and
material goes without saying. Less obviously, but in principle no less
necessarily, it has to be reasonable in addition whenever culpa enters the
reckoning, whenever that serves as mens rea. It cuts no ice otherwise, since
the unlawful act which it explains is then committed through culpa. The
question there posed by such a case is whether the person concerned should
reasonably have realised that what he is doing or about to do might be
unlawful. And the answer depends largely on the care he took or did not take
to acquaint himself with the true legal position. The duty to investigate this is
clear, to speak generally at all events and not of any area where the law’ s
clear, to speak generally at all events and not of any area where the law’ s
reach is suspected so little that the possibility of trouble and the consequent
need for caution would never occur to a prudent mind. Strong demands are
placed, by comparison, on all those engaged in trades, occupations or
15 ibid S v Bloem at 515F-H.
activities which are legally regulated and known by then to be. They are
expected to learn the rules and obliged to make the effort.
Sometimes, to be sure, the duty to investigate will be performed satisfactorily
when advice on the lawfulness or otherwise of the course envisaged is
obtained from a source ostensibly qualified to furnish such, and to think it
lawful will be reasonable once the assurance has thus been given that it is”16.
[29] The question that must be answered is whether the applicant, by pleading
ignorance of the law, has in fact demonstrated good cause. Respondents’
counsel contended strongly that the applicant has not explained what he
was doing since his release from prison and has not disclosed whether he
is a lay person or not. This, the argument goes, would have enabled the
court to determine his level of sophistication. But due to the paucity of
information, he has failed to take the court into its confidence in this
regard. The respondents’ criticism of the lateness or delay in the filing of
the statutory notice is centred on his failure to account for what he was
doing for the entire period as well as on the fact that he did not divulge
facts that reveal his level of sophistication.
[30] What is glaring and apparent is that the applicant made it clear that all
along he did not know that he could lodge a claim for damages and all
that he had always been adamant about is the fact that he was innocent of
the charges preferred against him. It was not until he consulted with his
legal representatives on 10 October 2024 that he came to the realisation
that he has a claim against the respondents. He then instructed them to
immediately dispatch a statutory notice, which they did on 17 October
2024. That clearly centres, in my view, around the question whether
16 S v Waglines (Pty) Ltd and Another Didcot J 1986 (4) SA 1135 at 1145 paras H/I -1146 C/D.
ignorance of law can excuse the applicant in the circumstances of this
case.
[31] Confronted with a situation where the applicant was accused of having
known about his cause of action upon his arrest, Norma J, as she then
was, had this to say:
“The first respondent contends that the applicant knew about the cause of
action upon her arrest. If one were to follow this reasoning it would mean that
there is absolutely no basis upon which people would seek legal advice. Upon
each and every arrest the cause of action would arise, and an applicant would
be expected to rush to court and institute an action. I see no legal impediment
to seeking legal advice. In fact, it is the prudent thing to do because not every
arrest that is perceived to be unlawful is actionable. The applicant
demonstrated that she was not aware of her rights. Not every individual is au
fait with the concept of the arrest. In this instance the applicant demonstrated
that she was not even aware that she could have a claim against the Minister
as result of the conduct meted out to her and the unlawful search, according to
her, to her home”17.
[32] The factual circumstances of the Dike case perfectly mirror the present
matter, in so far as they relate to ignorance of the law is concerned.
Moreover, a considerable time elapsed between the applicant’s release
from prison and the institution of the damages claim. The time that
elapsed amounted to almost eleven months in the Dike case. Accordingly,
I find its reasoning persuasive, and I conclude that the applicant in the
instant matter has demonstrated good cause.
17 Dike v Minister of Police and Another (404/2022) [2023] ZAECBHC 15 (18July 2023) para [28].
[33] The second question that needs to be considered relates to the
jurisdictional requirement of prescription or otherwise of the applicant’s
claim against the respondents. Put differently, the question that must now
be answered is whether the claim has not been extinguished by
prescription. That is one of the jurisdictional requirements that the
applicant has to satisfy in an application for condonation for failure to file
a statutory notice or late filing thereof. It is trite that condonation cannot
be granted where a party’s claim has prescribed. This was made crystal
clear in Premier of Westen Cape v Lakay where the Supreme Court said
“If the debt was extinguished by prescription in terms of any of those Acts or the
Prescription Act, condonation cannot be granted - for the obvious reason that no
purpose would be served by granting condonation for the late giving of a notice in
respect of a debt which no longer exists and cannot accordingly be enforced. The
purpose of the 2002 Act is not to revive debts that have already prescribed”18.
[34] The applicant pertinently addresses the issue of prescription in his
founding affidavit where he categorically states that the action was
instituted within the three -year prescriptive period. That averment is
corroborated by the common cause facts in this matter. As already
explained, applicant was arrested on 27 March 2023 and appeared in
court on 29 March 2023 . He made several court appearances until the
14th of November 2023 when the charges against him were formally
withdrawn and he was released from detention. He then consulted with
his legal representatives on the 10th of October 2024 , almost eleven
months later. A letter of demand and statutory notice was served upon the
respondents on 17 October 2024 . Because the three -year period of
prescription, prescribed in the Prescription Act No. 68 of 1969 for the
expiry of a debt had not lapsed, I am of the view that the applicant’s claim
expiry of a debt had not lapsed, I am of the view that the applicant’s claim
18 Premier, Westen Cape v Lakay 2012 (2) SA 1 (SCA) para [15].
had not prescribed as at the time he instituted a civil claim against the
respondents. The general rule is that a debt prescribes after three years.
This is provided for in section 11 of the Prescription Act as follows:
“The periods of prescription of debts shall be the following:
(a) Thirty years in respect of-
(i) Any debt secured by mortgage bond;
(ii) Any judgment debt;
(iii) Any debt in respect of any taxation imposed or levied by or under any law;
(iv) Any debt owed to the state in respect of any share of profits, royalties or any
similar consideration payable in respect of the right to mine minerals or other
substances;
(b) Fifteen years in respect of any debt owed to the State and arising out of an
advanced or loan of money or a sale or lease of land by the State to the debtor,
unless a longer period applies in respect of the debt in question in terms of
paragraph (a);
(c) Six years in respect of a debt arising from a bill of exchange or other negotiable
instrument or from a notarial contract, unless a longer period applies in respect of
the debt in question in terms of paragraph (a) or (b);
(d) Save where an Act of Parliament provides otherwise, three years in respect of any
other debt”19.
[35] In my view it is quite glaring and abundantly clear from the common
cause facts and the entire factual matrix that the three -year period of
prescription had not elapsed when the applicant launched the damages
claim against the respondents. Therefore, the applicant has satisfied the
requirement that condonation can only be sought if, and only if, the claim
has not been extinguished by prescription.
19 Ibid Prescription Act, section 11.
[36] The third requirement is that the organ of the State must not be
unreasonably prejudiced by the failure to serve the statutory notice. To
demonstrate that they will suffer prejudice, the respondents strongly
contend that the delay is excessive and the effluxion of time may
prejudice them in conducting their defence in that relevant members may
not be available to testify and memories may fade such that they may not
remember the salient facts relating to the applicant’s claim. On the other
hand, the applican t asserts that he will suffer irreparable harm and
prejudice, which surpasses any prejudice that could be suffered by the
respondents, if the condonation application is not granted.
[37] Where an organ of the state alleges that it will suffer prejudice, if the
condonation application is granted, it must state the nature and source of
such prejudice. The respondents cannot simply speculate and expect to
convince the court that they will suffer prejudice. The Supreme Court of
Appeal made the following pertinent remarks in Rossouw v Bliganaut
and Wessels and Another:
“[76] If there was real and unreasonable prejudice, the MEC should easily
state its nature and source, especially after the effluxion of time. It is not
sufficient for the MEC to merely assert that some unidentified documents may
have been misplaced or lost. To rebut the applicant’ s assertions, the MEC had
to identify a specific document or documents that would have been crucial to
the department’ s case but are no longer available due to the delay.
[77] The same goes for the department’ s employees. The MEC is content to
say that employees who ‘may have knowledge’ of the alleged facts ‘may’ no
longer be in the department’ s employ, and those who remain may have faded
memories. The MEC does not state this as a fact but as speculation. She does
not mention that an investigation was conducted in the department, which
established that those employees are no longer employed, or that the
department interviewed the remaining employees, but their memories have
faded. This a simple exercise that could have been undertaken, and it’ s the
absence of unreasonable prejudice”20.
[38] The reasoning of the Supreme Court of Appeal in the Rossouw judgment
is authoritative and applies in the present factual matrix with equal force.
This is so because the respondents’ assertions about the fading of
memories and the unavailability of the members to testify are not based
on tangible facts and evidence. As was authoritatively stated in Madinda
v Minister of Safety and Security , " a court should be slow to assume
prejudice for which the respondent itself does not lay a basis” 21. The
court further stated that the approach as to existence of unreasonable
prejudice requires a common -sense analysis of the facts, bearing in mind
that whether grounds of prejudice exist often lies peculiarly within the
knowledge of the respondent22.
[39] In this matter it is difficult to understand how the prejudice will come
about, as the respondents have not fully explained their bare assertion that
employees may not be available to testify and they may have faded
memories about the applicant’s case. The respondents’ problem in this
regard is even compounded by the fact that they have received summons
and have even filed a plea, in which they have narrated their defence to
the claim. Surely, they must have consulted with the relevant employees
and must have had regard to the relevant documentation when they
prepared the plea. It therefore boggles the mind and defies logic when
they contend that they will suffer prejudice, in the circumstances. in the
20 Rossouw v Bliganaut and Wessels and Another 1234/2023) [2025] ZASCA 146; 2026 (2) SA 477 (SCA) (7
October 2025) paras [76] to [77].
21 Madinda v Minister of Safety and Security 2008 (4) SA 312 (SCA) para [21].
22 Ibid Madina v Minister of Safety and Security.
light of the foregoing, I conclude that no prejudice will be suffered by the
respondents if condonation is granted.
[40] Lastly, it is necessary to make a brief comment about the constitutional
rights implicated in this matter. Necessarily so because they are important
considerations to weigh in the balance when deciding whether to grant or
refuse the condonation sought. Two constitutional rights are affected in
this case, namely the right to freedom and security of person as well as
the right of access to courts. These rights are entrenched in sections 12
and 34, respectively, of the Bill of Rights.
[41] Our courts have, from time immemorial, emphasised the importance of
the individual’s right to liberty. Under the constitutional dispensation the
apex court has been loud and vociferous in the protection of the right to
liberty. This it did in numerous cases and one example is Zealand v
Minister of Justice & Constitutional Development where the court
expressed the position as follows:
“This is not something new in our law. It has been firmly established in our
common law that every interference with physical liberty is prima facie
unlawful. Thus, once the claimant establishes that an interference has
occurred, the burden falls upon the person causing that interference to
establish a ground of justification ”23. Quite recently, the Constitutional Court
has emphasised this salient principle when it stated that “ It follows that in a
claim based on the interference with the constitutional right not to be deprived
of one’ s liberty, all that the plaintiff has to established is that an interference
has occurred. Once this has been established the deprivation is unlawful and
23 Zealand v Minister of Justice & Constitutional Development 2008 (4) SA 458 (CC) at para [25].
the defendant bears the onus to prove that there was justification for
interference”24.
[42] In this matter it is not in dispute that the applicant was arrested and
detained from 27 March 2023 and that he was only released when the
charges against him were withdrawn on 14 November 2023. All that the
respondents do is to justify the applicant’s arrest and detention on the
basis that it was effected on reasonable suspicion of him having
committed a Schedule 1 offence, namely rape. That being the case, the
applicant has established that there was interference with his
constitutional right to liberty. The onus, as was stated by the
Constitutional Court in Zealand and Mahlangu judgments, in such
circumstances, rests with the respondents to justify the arrest without a
warrant and the detention as well as the prosecution that followed.
[43] This is even more necessary in this case because the charges were
withdrawn and the applicant was released from detention. I am therefore
of the view that it is imperative that the respondents justify the
infringement of the applicant’s constitutional right to liberty during trial.
That therefore reinforces the applicant’s case for condonation to be
granted so as to give the respondents an opportunity to justify the
interference and infringement of the right entrenched in terms of section
12 of the Bill of Rights 25. What that means is that the applicant has
demonstrated that he has a prima facie case, a triable issue.
24 JE Mahlangu and Another v Minister of Police 2021 ZACC 10 para [32].
25 Constitution of the Republic of South Africa No. 108 of 1996; section 12 Bill of Rights.
[44] The other right that is implicated is entrenched in section 34 of the
Constitution, the right of access to courts. That right guarantees everyone
the right of access to courts and to have their disputes decided in a fair
public hearing. The apex court recently remarked about the implications
of that right in Le Roux and Another v Johannes G Coetzee and Seuns
and Another when it said:
“The proposition that a claim, otherwise valid in law and even one that is
unassailable, may be extinguished if asserted within the time provided by law,
is unsettling. It is unsettling, as its effect is to negate the substance of the right
conferred by section 34 of the Constitution “to have any dispute that can be
resolved by application of the law decided in a fair public hearing before a
court, where appropriate, another independent and impartial tribunal or
forum”26.
[45] Section 36 of the Constitution makes provision for the limitation of the
rights entrenched in the Bill of Rights 27. It does so when it provides that
those rights may be limited only in terms of the law of general application
to the extent that the limitation is reasonable and justifiable in an open
and democratic society based on human dignity, equality and freedom,
taking into account all relevant factors. The factors that the court must
take into account, when considering whether to limit a right in terms of
section 36, are the nature of the right; the importance of the purpose of
the limitation; the nature and extent of the limitation; the relation between
the limitation and its purpose ; and less restrictive means to achieve the
purpose. Sub-section (2) of section 36 provides that, except as provided in
26 Le Roux and Another v Johannes G Coetzee and Seuns and Another [2023] ZACC 46; 2024 (4) BCLR 522
(CC); 2024 (4) SA 1 (CC) para [29].
27 Ibid Constitution No. 108 of 1996, section 36.
subsection (1) or in any other provision of the Constitution, no law may
limit any right entrenched in the Bill of Rights28.
[46] Ngcobo J in Brummer v Minister for Social Development and Others
explained the meaning and import of the provisions of section 34 of the
Constitution as follows:
“[49] The High Court found that the 30 -day period is ‘grossly inadequate to
enable an ordinary applicant to approach a court for relief. It was held that
the fact that there is an opportunity for condonation matters not, what does
matter ‘is the adequacy of the opportunity and not what he may do in order to
retrieve the lost opportunity’. It therefore held that section 78(2) constitutes a
limitation of the right of access to court which is guaranteed in section 34 and
that this limitation is unreasonable and unjustifiable29.
[51] 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
28 Ibid Constitution Act No. 108 of 1996, section 36 (1) and (2).
29 Brummer v Minister for Social Development 2009 (6) SA 32 (CC); S.T.C v K.Z.K(069787/2023) [2024]
ZAGPJHC 1066 (21 October 2024) para [33].
the power to condone non -compliance with time -bar is not necessarily
decisive”30.
[47] The sentiments expressed in the authorities referred to in the preceding
paragraph, as well as the principles enunciated therein, apply with equal
force in the present case. I am therefore of the view that it will not be in
the interests of justice and fairness to deprive the applicant the right of
access to court, in the sense of denying him an opportunity to have his
damages case adjudicated upon, in the circumstances.
CONCLUSION
[48] Our jurisprudence is replete with many examples where both the Supreme
Court of Appeal and the Constitutional Court have reaffirmed the
principle outlined in the Mohlomi v Minister of Defence 31 in which it
was clarified that “ good cause” is a factual inquiry left to the discretion
of the court, and that the court in assessing whether the creditor’s default
can be fully explained and his conduct or motives are understandable,
will have regard to the interests of justice.
[49] In this matter, taking into consideration the good prospects of success as
well as the Constitutional rights of freedom and security of person and
access to courts, I am persuaded to grant the condonation sought by the
applicant. I come to that conclusion relying on the authority of Rossouw v
Blignaut and on the fact that no prejudice will be suffered by the
respondents if condonation is granted, as they are legal represented and
they have filed their pleas. Their rights are therefore fully protected. In
30 Brummer v Minister for Social Development 2009 (6) SA 32 (CC); S.T.C v K.Z.K(069787/2023) [2024]
ZAGPJHC 1066 (21 October 2024) para [33].
31 Mohlomi v Minister of Defence 1997 (1) SA 124 (CC).
the present case I cannot find any justification to limit the Applicant’s
rights. I also conclude that, considering all three requirements for a
condonation application to succeed conjunctively, it is in the interest of
justice to condone the applicant’s failure to timeously deliver the statutory
notice.
[50] What remains for consideration is a question of costs. The issue of costs
is at the discretion of the court and because the applicant sought an
indulgence, he is not entitled to costs, even if the condonation application
becomes successful.
ORDER:
[51] Accordingly the following order shall issue:
1. The late filing of the Applicants Replying Affidavit is hereby
condoned.
2. The applicant’s failure to timeously deliver the statutory notice, in
compliance with the provisions of sections 3(2)(a) and (b) of the
Institution of Legal Proceedings Against Certain Organs of the State
Act No. 40 of 2002, is hereby condoned and leave is granted for him
to pursue his claim against the respondent.
3. That there shall be no order as to costs.
____________________________________________
T.A. NKELE
ACTING JUDGE OF THE HIGH COURT
APPEARANCES
For the APPLICANT :
Instructed by : MAGQABI SETH ZITA ATTORNEYS.
4 Tyrell Road
Berea
EAST LONDON
5201
TEL: 061 478 1221
: E-mail: mszattorneys@gmail.com
: Ref: Ms Magqabi/sb/S8L2225
C/O BULULU NABO & XASO
ATTORNEYS
39 Arthur Street
KING WILLIAMS TOWN
For the RESPONDENTS :
Instructed by : THE STATE ATTORNEY
Cnr 45 Terminus & 28 Station Road
Old SARS Building
EAST LONDON
5201
Tel: 043 706 5100
Email: ZDwayi@justice.gov.za
Ref: 2110/24-P5 (Mrs Limba-Dwayi)
C/O LEGAL SHARED SERVICES
Office of The Premier
Room 0083, Ground Floor
OTP Building No.1
BHISHO
Matter heard on : 21 MAY 2026
Judgment delivered on : 30 JUNE 2026