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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
In the matter between:
MOTLHABI BONGANI
and
MINISTER OF POLICE
NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS
CORAM: HENDRICKS JP
Heard: 29 May 2026
Case No: 3319/2023
Plaintiff
1st Defendant
2nd Defendant
Delivered: This judgment was handed down electronically, circulated to
the parties' representatives via email, uploaded to Caselines, and
released to SAFLII. The date and time for the handing down of the
judgment are set for 16h00 on 03 July 2026.
Summary:
Condonation- Application made in terms of section 3 of the Institution of
Legal Proceedings Against Certain Organs of State Act 40 of 2002 -
1
NO
NO
NO
NO
Prescription - claim extinguished through the running of prescription -
Applicant to blame for the inordinately long delay - Application dismissed
with costs on a party and party basis on Scale B, to be taxed.
ORDER
(i) Condonation for the late filing of the first and second respondents'
answering affidavit is granted.
(ii) The applicants' application for condonation for the late filing of the
statutory letters of demand in terms of section 3 of Act 40 of 2002,
is dismissed.
(iii) The applicant is ordered to pay the costs of this application on a
party-and-party basis on Scale B, to be taxed.
JUDGMENT
HENDRICKS JP
[1] This is an application for condonation for the late filing of notices of
intended legal proceedings as contemplated in section 3 of the
Institution of Legal Proceedings Against Certain Organs of State Act
40 of 2002 ('the Act')1. The facts leading to the aforementioned
1 Section (3) states:
"Notice of intended legal proceedings to be given to organ of state
(1) No legal proceedings for the recovery of a debt may be instituted against an organ of state
unless-
(a) the creditor has given the organ of state in question notice in writing of his or her or its
intention to institute the legal proceedings in question; or
(b) the organ of state in question has consented in writing to the institution of that legal
proceedings-
(i) without such notice; or
2
application can be succinctly summarized as follows; the applicant
was arrested by members of the South African Police Service
(SAPS) on 29 January 2016 for housebreaking and detained. He
was not admitted to bail. On 07 October 2020, he was released upon
the withdrawal of the matter by the prosecution, since the
complainant had passed on.
[2] On 08 June 2023, the applicant's attorney served notices in terms
of section 3 on the National and Provincial Commissioners of SAPS
and on the National Prosecuting Authority (NPA) on 24 October
2023. On 19 December 2023, the applicant issued summons and
served it on the State Attorney's Office on 09 February 2024. On 7
March 2024, the respondents filed a notice of intention to defend.
On 09 April 2024 the respondents served the applicant with a special
plea of non-compliance with the dictates of section 3 of the Act and
(ii) upon receipt of a notice which does not comply with all the requirements set out in
subsection (2).
(2) A notice must-
(a) within six months from the date on which the debt became due, be served on the organ of
state in accordance with section 4(1 ); and
(b) briefly set out-
(i) the facts giving rise to the debt; and
(ii) such particulars of such debt as are within the knowledge of the creditor.
(3) For purposes of subsection (2Xa)-
(4)
(a) a debt may not be regarded as being due until the creditor has knowledge of the identity of
the organ of state and of the facts giving rise to the debt, but a creditor must be regarded
as having acquired such knowledge as soon as he or she or it could have acquired it by
exercising reasonable care, unless the organ of state wilfully prevented him or her or it
from acquiring such knowledge; and
(b) a debt referred to in section 2(2)(a), must be regarded as having become due on the fixed
date.
{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.
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 for the failure by the creditor; and
(iii) the organ of state was not unreasonably prejudiced by the failure.
(c) If an application is granted in terms of paragraph (b), the court may grant leave to institute
the legal proceedings in question, on such conditions regarding notice to the organ of state
as the court may deem appropriate."
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a plea-over. This was filed with the Office of the Registrar of this
Court on 10 April 2024. On 28 June 2024 the applicant filed the
aforementioned notice for condonation for the late filing of the
notices of intended legal proceedings against the respondents as
Organ of State. On 19 July 2024 the respondents filed their
answering affidavit with the Office of the Registrar and served on the
applicant's attorneys of record on 30 July 2024, which is a day out
of time. Counsel representing the applicant did not take issue with
this and conceded that the late filing of the answering affidavit of the
respondents a day out of time, may be condoned. Condonation for
the late filing of the respondents' answering affidavit should
therefore be granted.
[3] It is prudent to repeat in relevant parts the contents of the applicant's
founding affidavits for his application for condonation for the late
filing of the notices in compliance with section 3 of the Act. As
background, he makes it common cause that he was arrested on 29
January 2016 for housebreaking, which he states was unlawful and
without a warrant of arrest, by members of the first respondent
(Minister of Police) acting within the scope of their employment. He
protested his innocence upon his arrest and stated: 'At all material
times I informed the arresting officer that I did not commit any
offence'.
He was denied bail and detained until 07 October 2020 when he
was released, as the matter was withdrawn on 06 October 2020.
[4] The following is stated verbatim in paragraph 9 of his affidavit:
'9. REASON FOR LATE DELIVERY OF NOTICE
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9.1 I am advised that my notice was served 6 years after my arrest.
Respectfully so, I was only released from custody on the 07th day of
October 2020. The matter was withdrawn when I was not present at
court on the 6th day of October 2020 and thereafter released the day
after the matter was withdrawn.
9.2 I am a lay person and have no knowledge of the laws of South Africa,
specifically laws regulating the institution of legal proceedings against
certain organs of state.
9.3 As a result thereof, I never had any intention of instituting proceedings
for wrongful arrest and detention while I was in custody. I confirm that
I could not provide instructions to my attorney of the record for the
reasons I will provide herein.
9.4 I was only informed during 06 October 2022 by my attorney of record
that I was wrongfully and unlawfully arrested and detained. As a result,
I have a claim against the Respondents. I confirm that we agreed to
further consultation as time did not allow us to fully discuss the merits
of my case with my attorney.
9.5 To which I instructed my attorney, Mr. Tsotelo Petros Ntsamai, around
October 2022 to institute legal action against the Respondents. I
confirm that I had a further telephonic consultation with my attorney
around the 23rd day of January 2023.
9.6 It was only during my consultation that I was informed that I have failed
to comply with the Act. A confirmatory affidavit of my attorney is
attached hereto as annexure "A".
9. 7 Under the circumstances, and in light of what I have stated above, I
humbly submit that I did not willfully cause the late delivery of my
intention to institute legal proceedings.
9.8 I could therefore only send the statutory notice after the finalization of
the matter.'
[5] He also stated in paragraph 6.4 of the affidavit:
'Although the required notices were duly delivered, same was however
served approximately a year out of time.'
5
[6] In paragraph 10 of the same document the following appears:
'10. 1 I therefore respectfully state that my notice was served a year later.
However, the matter had not prescribed. It is only that same was served
after a period of six months.
1 0. 2 Be that as it may, the Respondents have raised a special plea of non
compliance with peremptory provisions of section 3 (2) (a) of Act 40 of
2002. I therefore seek an order declaring that my statutory notice of
demand complies with the provisions of Act supra alternatively, in as far
as it may be necessary, I seek condonation for the late filing of my
statutory notice. '
He submitted that the respondents shall suffer no prejudice should
condonation for the late delivery of the section 3 notices be granted.
[7] Section 3(1 )(a)-(b)(i) of the Act states specifically that:
'No legal proceedings for the recovery of a debt may be instituted against an organ of
state unless - (a} the creditor has given the organ of state in question notice in writing
of his or her intention to institute the legal proceedings in question; or (b) the organ of
state in question has consented in writing to the institution of that legal proceedings -
(i) without such notice'.
Section 3(1 ){b} supra, does not find application in this matter. Insofar
as the notice mentioned in section 3(1 )(a) is concerned, subsection
(2) requires that the notice must be served within six months from
the date of which the debt became due on the Organ of State
concerned. In Truter v Deysel, it was indicated that:
!the creditor acquires a complete cause of action for the recovery of the debt, ... when
everything has happened which would entitle the creditor to institute action and to
pursue his or her claim.'2, in other words, the debt becomes due when
2 Truter and Anoth er v Deysel 2006 (4) SA 168 (SCA) para 16.
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the creditor has knowledge of the identity of the Organ of State and
of the facts giving rise to the debt.
[8] It is the contention on behalf of the respondents that the said notices
were served after a passage of seven years since 29 January 2016.
This contention is based on the fact that the applicant knew that he
was arrested by members of the SAPS and even protested his
innocence when he was so arrested. Furthermore, he stated in his
founding affidavit that the SAPS members acted within the cause
and scope of their employment with the first respondent, being the
Minister of Police. So, as at the time of his arrest, he knew what the
facts were giving rise to the debt and the particulars of the relevant
Organ of State.
[9] At best for the applicant, in accordance with the content of his
founding affidavit, he knew that according to him, he was unlawfully
arrested and detained until he was released on 07 October 2020,
after the matter was withdrawn on 06 October 2020. So, on his own
version he was aware of the cause of the debt and who the relevant
Organs of State were. He stated quite categorically that: 'I never had
any intention of instituting proceedings for my wrongful arrest and
detention while I was in custody.' Once again, despite this
knowledge, when he was released on 07 October 2020, he did not
institute any legal action against the respondents. To add to this, he
also let another considerable length of time lapse and only consulted
an attorney 'during October 2022', some two years later, who
informed him that he was wrongfully and unlawfully arrested and
detained. No action was taken by either himself or his attorney.
Instead, another three months passed before he consulted again
7
with his attorney; this time telephonically on 23 January 2023. Once
again, no immediate action was taken. As alluded to earlier, it was
only on 08 June 2023 and 24 October 2023 that notices were sent,
to the first and second respondents respectively; some four months
and 16 days for the first notice and some nine months later in
respect of the second notice. This is contrary to what he proffered
by stating that:
'Although the required notices were duly delivered, same was however served
approximately a year out of time' and 'I therefore respectfully state my notice was
served a year late' .... 'However, the matter had not prescribed. It is only that same
was served after a period of six months'.
I am holding a different view.
[1 O] The submissions by the applicant also do not conform with the
statutory requirements laid down by section 3 ( 4 ){ b) of the Act, which
determines that the court having jurisdiction for condonation, may
grant an application for condonation if it is satisfied that (a) a debt
has not been extinguished by prescription; (b) good cause exists for
the failure by the creditor; (c) no unreasonable prejudice caused by
the failure. Before dealing with the prescripts of this section, it is
worth mentioning that the respondents as defendants filed an
amended plea with the Office of the Registrar of this Court on 02
July 2025, after it was served on the applicants' attorneys of record
on 01 July 2025. No replication was filed to this amended plea and
neither was any objection raised. In the amended plea, a special
plea of prescription in terms of the provisions of the Prescription Act
68 of 1969 was pleaded. This court can therefore deal with
prescription in terms of both aforementioned acts.
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[11] It is quite apposite to state that the founding affidavit of the applicant
contains very scanty information for the inordinately long periods of
delay. The applicant failed dismally to explain in minute detail the
cause of the delay. Averments and references are made in a by-the
way manner. The applicant does not take this Court into his
confidence to explain in detail the cause of the lengthy delays. No
detailed account and justifiable reasons are advanced for the delays
and why the section 3 notices were not timeously served. There is
therefore no good cause shown by the applicant as the creditor for
his failure to serve the section 3 notices timeously. The periods of
delays, since his arrest on 29 January 2016; after his release on 07
October 2020; his first consultation during October 2022; his second
telephonic consultation on 23 January 2023; the first section 3 notice
on 08 June 2023; and the second section 3 notice on 24 October
2023; are inadequately explained and lack good cause for the failure
of the applicant in explaining the delay.
[12] To reiterate, insofar as the extinguishing of the debt by prescription
is concerned, the applicant was arrested on 29 January 2016, when
his cause of action arose, of which he was aware. He said he told
the members of SAPS that he was innocent. He was not admitted
to bail. According to him, he was wrongfu.lly and unlawfully detained
until his release on 07 October 2020. Whilst he was detained, he
never had any intention of instituting proceedings for wrongful arrest
and detention. After his release, he waited for two years before he
consulted his attorney. Summons was only issued on 19 December
2023. Without any stretch of the imagination, the claim of the
appellant has been extinguished by prescription. The principle
lgnorantia juris non excusat (ignorance of the law is no excuse) is
9
not a blanket rule that can be relied upon as a defence. Madinda v
Minister of Safety and Security3 emphasised that it is the court that
must decide whether the applicant had established good cause for
the delay,
'The court must decide whether the applicant has produced acceptable reasons for
nullifying, in whole, or at least substantially, any culpability on his or her part which
attaches to the delay in serving the notice timeously.'
It further accentuated the statutory aspect of fault by the applicant
by highlighting that:
'One other factor in connection with 'good cause' in s 3(4}(b)(ii) is this: it is linked to
the failure to act timeously. Therefore subsequent delay by the applicant, for example
in bringing his application for condonation, will ordinarily not fall within its terms' 4
Consequently, it is manifest that even the most favorable
interpretation of the period that has lapsed cannot favour the
applicant.
[13] Once again, the cause of action arose on 29 January 2016 when he
was arrested, wrongfully and unlawfully as he claimed. A three-year
period for the running of prescription ended on 28 January 2019. On
his own version he was released on 07 October 2020. Even if one
calculates to the advantage of the applicant from his release on 07
October 2020, the three-year prescription period would run until 06
October 2023. Summons which stays the running or interrupts
prescription was only issued on 19 December 2023, which simply
means that the claim had prescribed. In terms of both section 3(4)(a)
of the Institution of Legal Proceedings Against Certain Organs of
3 Madinda v Minister of Safety and Security, Republic of South Africa [2008) ZASCA 34; 2008 (4) SA 312
SCA para 12.
4 Madinda Ibid para 14.
10
State Act 40 of 2002 and sections 11 ( d)5 and 12( 1 )6 of the
Prescription Act 68 of 1969, the applicant's claim is extinguished
through prescription.
In amplification of the above, Khanya v The Minister of Police also
referred to section 11 ( d) of the act as the foundational legal prescript
for civil debt prescribing three years after the debt becomes due and
to section 12(1) as the legal prescript that the debt must be
immediately payable7.
Whether on each of the aforementioned acts individually or whether
in terms of both read conjunctively, the applicant's claim has been
extinguished through prescription. Section 12( 1) of the Prescription
Act is dispositive of this matter.
[14] Insofar as costs are concerned, it should follow the result and be
awarded in favour of the respondents, as the successful litigants.
Counsel for the respondents submitted that costs should be
awarded de bonis propriis against the attorney of record, as the
claim prescribed in his hands. I am holding a different view. The
information contained in the founding affidavit is very scant. There
is no detailed information with regard to the instructions given. It is
even uncertain whether during the first consultation with his attorney
during October 2022, did he give a mandate and clear instructions
to his attorney to institute a legal action. This uncertainty is
exacerbated by the fact that a follow-up telephonic conversation
needed to be held 'around the 23rd day of January 2023'. I am not
5 Section 11 ( d) of the Prescription Act 68 of 1969 - 'save where an Act of Parliament provides
otherwise, three years in respect of any other debt'.
6 Section 12 ( 1) ibid - 'Subject to the provisions of subsections (2), (3) ... prescription shall
commence to run as soon as the debt is due.'
7 Khanya v The Min ister of Police [2019) ZAFSHC 81 paras 7-8.
11
convinced that the applicant's attorney of record is solely to blame
for the delay, alternatively that he was negligent in causing the
applicants' claim to prescribe.
[15] The applicant himself states under oath that he never had any
intention of instituting legal proceedings for wrongful arrest and
detention while he was detained. As alluded to earlier, two years had
passed after his release during which he did not institute any legal
proceedings. Even after his first consultation with his attorney in
which he was advised that he may have a claim for wrongful arrest
and detention around October 2022, he did not pursue his cause of
action. Only 'around January 2023' did he revert and had a follow
up telephonic conversation with his attorney. To reiterate, once
more, there are long periods of time lapse that are unexplained. This
cannot solely be laid at the door of the applicant's attorney. There is
a stage beyond which a litigant cannot hide behind his attorney for
causing the delay. This is one such matter where the applicant has
himself to blame for the inordinately long delay of his claim, which
became extinguished through the running of the prescription.
Order
[16] Resultantly, the following order is made:
(i) Condonation for the late filing of the first and second
respondents' answering affidavit is granted.
(ii) The applicants' application for condonation for the late filing of
the statutory letters of demand in terms of section 3 of Act 40 of
2002, is dismissed.
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(iii) The applicant is ordered to pay the costs of this application on
a party-and-party basis on Scale B, to be taxed.
R D HENDRICKS
JUDGE PRESIDENT
NORTH WEST DIVISION, MAHIKENG
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APPEARANCES
For the Plaintiff: Adv. Ramaili SC
Instructed by: Ntsamai Attorneys, Mahikeng
For the Defendants: Adv. Lekwape
Instructed by: State Attorney, Mahikeng
14