IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE 0: 54912/2014
(1) REPORTABLE: NO
(2) Of INTEREST TO 0TH
(3) REVISED: YES
17 JUNE 2026
DATE
!
IN THE MATTER BETWEl;N:
KHENSANI VICTORIA M~ OTO N.O. Plaintiff
(in her capacity as the duly appointed executor of the estate of the late Dudu mold Mawela)
and
MINISTER OF POLICE First Defendant
~~N~:~:=~EF JJ~~~~NEE=~L~~:TITUTIONAL DEVELOPMENT S ~~~~ ~=~=~::~:
NATIONAL DIRECTOR o, PUBLIC PROSECUTIONS ourth Defendant
Delivered: This judgment is1handed down electronically by circulatio n to he Parties I the ir
legal representatives by email and by uploading to Caselines. The dat of hand down is
deemed to be 17 Jun e 2026
JUDGMENT
VAN DER WESTHUIZEN AJ
Introduction
[11 Two interlocutory applications brought by the plaintiff serve before e. The first is
an application in terms of rule 30 of the Uniform Rules of Cou for an order
declaring the special plea and plea delivered by the National Di ector of Public
Prosecutions ("the NDPP") on 13 September 2023 to be an irre ,lular step, and
setting it aside. The second ·,s an applicat"lon in terms of sect'I0 I 3(4)(b) of the
Institution of Legal Proceedings against Certain Organs of State ct 40 of 2002
("the Act") for condonation of the failure to give the NDPP written n
1
ice of intended
legal proceedings. By agreement the two applications were hear , together, and
they were argued before me on 8 June 2026.
[2) The plaintiff sues in her representative capacity as the executor oft I e estate of the
late Dudu Arnold Mawela ("the deceased"), having been substit I ted for him in
I
terms of rule 15. In the action the deceased claimed payment of R15 000 000,
pleaded as "personality damages", arising from his allegedly unla ul arrest and
detention by members of the South African Police Service an his allegedly
malicious prosecution.1
[3] During argument it appeared to me that a question anterior to b th applications
required consideration: whether, by reason of the death of the d .. ceased on 21
February 2021, there remains any valid and enforceable claim ag !inst the NDPP
to which the interlocutory applications can attach. I according ! directed the
delivery of supplementary heads of argument on two questions - first, whether a
plaintiffs non-patrimonial claim is transmissible to his estate up his death, or
whether it perishes with him in accordance with the maxim actio pel sonalis moritur
cum persona ; and secondly, whether there exists a rule of the cl man law that
everything done by an attorney in good faith, while unaware tha, his client has
died, is valid.
1Particulars of claim, paras 3.2 and 5.1 (Caselines 001-5 and 001-7), as reprod ed in the fourth
defendant's supplementary heads of argument, para 16.1.
[4] Both parties delivered supplementary heads. Those for the NOP !' settled by Mr
Barnardt SC, address the transmissibility question directly. Those or the plaintiff,
settled by Mr Mlisana, do not engage the maxim as such; they t eat the court's
question as one of prescription, and contend that the claim "r mains live for
entertainment and adjudication". I have also had regard Jb a research
memorandum, drawn from Classen's Dictionary of Legal Words a r Phrases and
placed before me, on the scope and incidents of the maxim. I d I with each in
turn.
[5] For the reasons that follow, I have concluded that the deceased' claim against
the NDPP, being a claim for non-patrimonial damages, was exti buished by his
death before litis contestatio was reached as against the NDPP and that both
interlocutory applications must in consequence fail.
The parties and their citation
[6] The action was instituted in 2014 against the Minister of Police ( • st defendant),
Constable Johannes Lelaka (second defendant) and the Minister of Justice and
Constitutional Development (third defendant). The NDPP was j r ed as fourth
defendant by order of Mabuse J on 12 August 2021. 2 On 8 SeptJ ber 2023 the
plaintiff withdrew the action against the Minister of Justice anj Constitutional
Development; in papers delivered thereafter the NDPP is cite, as the third
defendant, while the State's papers retain the original citation! as the fourth
defendant. Nothing turns on this, and I refer throughout to "the ND · P".
[7]
The facts
The material facts emerge from the pleadings, the parties' chrono i gy tables and
the joint practice note, and are in all relevant respects common ca lse:
(a) the deceased was arrested without a warrant on 24 Au " ust 2004 and
detained;
(b) he was convicted and sentenced on 23 October 2008;
2Caselines 017-5 to 017-6.
(c)
(d)
on 28 October 2011 his conviction and sentence were set side on appeal
and he was released, having been in custody for some sev . n years;
on 30 April 2012 a notice in terms of section 3 of the Act l s delivered to
the Minister of Police;3 no such notice was ever delivered t the NDPP;
(e) on 14 August 2014 summons was issued and served n the original
defendants, claiming R15 000 000 in "personality damages'
(f) the defendants delivered a plea and, on 3 March 2020, an amended plea
raising, among others, special pleas of non-compliance with . ection 3 of the
Act and of prescription;
(g) on 28 October 2020 the deceased launched an applica on to join the
NDPP;
(h) on 21 February 2021 the deceased died. His attorney wast en unaware of
his death;
(i) on 12 August 2021 Mabuse J granted the order joining the OPP, and the
deceased's attorney addressed a letter to the Nation I Prosecuting
U)
(k)
(I)
Authority enclosing the order;
on 13 September 2021 the deceased's attorney delivered a otice of bar in
terms of rule 26, calling on the NDPP to plead within five da] s, failing which
it would be ipso facto barred;4
on 29 July 2022 the attorney learned, on a visit to the de ased's home,
that his client had died on 21 February 2021 ;5 l
a rule 15 notice was served on 1 August 2022; letters of exea, torship issued
to the plaintiff on 1 O November 2022; and a notice of s bstitution was
delivered on 22 November 2022;6
3Caselines 015-56; chronology table.
4Caselines 006-4 to 006-5.
5Affidavit of the plaintiff's attorney of record (Caselines 030-1).
6Rule 15 notice (Caselines 022-1 to 022-3); notice of substitution (Caselines 025-1 to 1 25-3). The fourth
defendant's supplementary heads, para 31, record that letters of executorship issued on 10 November
2022.
[8]
(m) on 13 September 2023 the NDPP delivered a special plea d plea;7
(n) on 18 September 2023 the plaintiff delivered a notice in term of rule 30(1 );8
and on 10 October 2023 launched the two applications no before me.9
Four facts, each recorded as common cause, 10 are decisive: the iJeceased died
on 21 February 2021; the NDPP was joined on 12 August 2021; I lie notice of bar
was delivered on 13 September 2021; and the plaintiff was substi uted by notice
dated 22 November 2022. Every procedural step taken against t e NDPP - its
joinder, the notice of bar, and the eventual plea - post--<iates t e death of the
deceased.
The nature of the claim
f9J The claim is pleaded as a single, globular claim for "personality d ages" of R15
000 000, founded on unlawful arrest and detention and on malicio s prosecution.
Claims of that nature are claims under the actio iniuriarum for th impairment of
personality interests - bodily liberty, dignity and reputation - an I sound in non
patrimonial (general) damages by way of a solatium. The researc1 memorandum
placed before me, drawn from Classen's Dictionary, lists "maliciou~1r rrest", assault
and defamation among the very wrongs to which the maxim appli s, and locates
them within the actio in personam - a claim against a specific per Ion arising from
delict - as distinct from the actio in rem concerning property or s ,atus.11 Neither
the particulars of claim nor the argument suggested that any patrim I nial loss (such
as loss of earnings or out-of-pocket expense) is claimed. The b1aim is, in its
entirety, a personal claim for non-patrimonial damages.
The two applications
7 CaseLines 003-5 to 003-19. The date of this pleading is variously given in the papers a 6, 13, 14 and 19
September 2023; nothing turns on the discrepancy and I take the date from the parties'
1
hronology tables.
[NOTE TO CHAMBERS: to be confirmed against the record.]
8CaseLines 028-25 to 028-27.
9Rule 30 application (Caselines 028-1); condonation application (CaseLines 015-1).
9Rule 30 application (Caselines 028-1); condonation application (CaseLines 015-1).
10Joint practice note dated 9 February 2026, recording the common-cause facts, rea , with the parties'
chronology tables.
11This characterisation accords with the memorandum from Classen's Dictionary of egal Words and
Phrases placed before me, which lists malicious arrest, assault and defamation a ong the actiones
iniuriarum to which the maxim applies.
[1 OJ In the rule 30 application the plaintiff contends that the NDPP, havi g been served
with the notice of bar on 13 September 2021 and having failed to
1
Iead within five
days, was under an automatic bar; its plea, delivered some two ye ks later without
the bar being uplifted or condonation sought, is said to be an irre ular step liable
to be set aside.
[11] In the condonation application the plaintiff seeks condonation, under section
3(4)(b) of the Act, of the failure to serve the NDPP with the s atutory notice,
contending that good cause exists, that the claim has not prescrib Id, and that the
NDPP has suffered no unreasonable prejudice.
[12] The NDPP opposes both. It contends that the notice of bar was a ullity because,
when delivered, the deceased had been dead for almost sev n months, his
attorney's mandate had terminated by operation of law, and no exe · utor had been
appointed; that the claim, being purely non-patrimonial , was exting l,ished by death
before litis contestatio and did not pass to the estate; that the claim as prescribed;
and that the particulars were never amended to plead any case ag ·nst the NDPP.
Whether the point may be taken on these applications
[13] The plaintiffs supplementary heads suggest that the survival of the claim is a
matter to be "traversed and determined when the NDPP's special l ea and plea is
argued", and not on these interlocutory applications. I do not ccept that the
question must be deferred. Interlocutory applications are not free tanding; each
is ancillary to, and draws its utility from, an extant /is. Where the facts that
determine whether a claim survives are common cause - and the ijates of death,
joinder and bar are common cause - a court may, and should, ha e regard to the
legal consequence of those facts in deciding whether the interlocut ,~ry relief sought
can serve any purpose. A court does not decide moot or abstract qi estions, and it
does not grant relief that can have no practical effect.12
does not grant relief that can have no practical effect.12
12JT Publishing (Pty) Ltd v Minister of Safety and Security 1997 (3) SA 514 (CC) para 17; ational Coalition
for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) fn 18; P esident, Ordinary
Court Martial v Freedom of Expression Institute 1999 (4) SA 682 (CC) para 16.
[14] I emphasise the limited basis on which I take the point. I do not, on these
applications, finally determine the action or the NDPP's special pie r I decide only
whether the two interlocutory applications, each directed exclusive at the NDPP,
can yield any effective relief. For the reasons that follow, they ca ot - and that
conclusion is reached on facts that are common cause and requir no evidence.
Actio personalis moritur cum persona: the principles
[15] The maxim actio persona/is moritur cum persona - a personal ction dies with
the person - was received into our law from Roman law through th Roman-Dutch
authorities and has long formed part of South African common 1
1w. Patrimonial
claims are, in general, transmissible to the estate of a decease~ claimant; but
purely personal claims for non-patrimonial loss- among them clai[ s for pain and
suffering, loss of amenities of life, defamation, and injuries to lib , dignity and
reputation - are not transmissible unless litis contestatio was
1
eached in the
lifetime of the claimant. Where the claimant dies before that stage, t e claim abates
and is extinguished.13
[16) The authoritative modern statement is that of the Supreme Co of Appeal in
Stransham-Ford: 14
"[19] While many claims, especially those of a pecuniary nature[ 1 will be
transmissible to the estate of a deceased litigant[,) that is not true of all su ,;h claims.
A claim for damages for pain and suffering and loss of amenities of l!fe is not
transmitted to the deceased estate unless the proceedings have reached ~he stage
of litis contestatio. A claim for damages for defamation is so personal tot ~ person
defamed that the action dies with the claimant and does not pass to t eir heirs
unless litis contestatio has been reached. The principle in these cases is summed
up in the maxim actio personalis moritur cum persona (a personal action tlies with
the person).
[20] The nature of the relief claimed by Mr Stransham-Ford makes it ,: lear that
the person).
[20] The nature of the relief claimed by Mr Stransham-Ford makes it ,: lear that
this was a personal action .... His death extinguished his claim for relief. 11
1
here can
be few starker examples of a cause being extinguished by the de~lh of the
claimant. ... There was no longer any claim capable of being adjudicat ~ and no
claim to pass to his estate. As there was no longer a claim before it, t I ere was
nothing left on which the court could pronounce."
13Executors of Meyer v Gericke (1880) Foord 14; Pienaar and Marais v Pretoria Printi g Works Ltd 1906
TS 654 at 656; Willenburg v Willenburg (1908) 25 SC 775 at 777; Jankowiak v Parity I:1nsurance Co Ltd
1963 (2) SA 286 (W) at 289E-H ; Hoffa NO v SA Mutual Fire & General Insurance Co L~~ 1965 (2) SA 944
(C) at 952F; Government of the Republic of South Africa v Ngubane 1972 (2) SA 601 (: /~ at 606G-H.
14Minister of Justice and Correctional Services and Others v Estate late James St nsham-Ford and
Others (2016] ZASCA 197; 2017 (3) SA 152 (SCA) ("Stransham-Ford") paras 19-20.
[17] The same principle emerges from the older authorities.15 Its ratio le is that non
patrimonial damages compensate the injured person for harm pll rsonal to him;
neither the estate nor the heirs suffer that harm. And the ratio iale of the litis
contestatio exception is equally instructive: it exists to ensure t at proceedings
already joined and underway at the date of death are not disrupt Id by it. Where
the rights of the parties have, by litis contestatio, become fixed a Id defined, the
claim is treated as having hardened into something transmissi , le; before that
moment it remains personal and perishes with the claimant.
[18] In modern practice Jitis contestatio is reached at the close of , leadings. The
majority in Nkala, on constitutional grounds and in the singular setti • g of a certified
class action by mineworkers, developed the common law to per it transmission
of general-damages claims of class members who died after ,, ertification but
before litis contestatio; that development was rooted in the excepti II nal features of
the class action.16 Subsequent decisions of the High Court - N , ubane v Road
Accident Fund and Mtshwene v Road Accident Fund - have d i clined to treat
Nkala as authority for any general relaxation of the rule, and hav reaffirmed the
settled position.17 In the present matter no case for the deve r pment of the
common law has been pleaded or advanced; the plaintiff t d not, in his
supplementary heads, engage the maxim at all. The matter falls ta be decided on
the settled principle.
Application of the principle
[19] The claim is, as I have found, wholly non-patrimonial. The decea ed died on 21
February 2021. The decisive question is whether, by that date, litis contestatio had
been reached as between the deceased and the NDPP. It plainly ad not. On 21
15Spendiff v East London Daily Dispatch Ltd 1929 EDL 113 (defamation of the d peased) , Meyer's
Executors v Gerricke (1880) and Union Government v Lee 1927 AD 202. Executors 9
1
jf Meyer v Gericke
1
jf Meyer v Gericke
(1880) Foard 14 is independently cited in the fourth defendant's heads.) _I
16Government of the Republic of South Africa v Ngubane 1972 (2) SA 601 (A) at 69p-607 ; Nkala and
Others v Harmony Gold Mining Co Ltd and Others [2016) ZAGPJHC 97; 2016 (5) SA • 40 (GJ) ("Nkala")
paras 176-194 .
17Ngubane v Road Accident Fund [2022] ZAGPJHC 275; 2022 (5) SA 231 (GJ) paras 3t -36; Mtshwene v
Road Accident Fund (44674/2020) [2024] ZAGPPHC 1027 (7 October 2024) ("Mtshwe 1 ") paras 16-17 .
February 2021 the NDPP was not a party to the action: the joi der order was
granted only on 12 August 2021, almost six months later. Before jo der the NDPP
could deliver no plea, and pleadings could not close as against it. he deceased's
personal claim against the NDPP was therefore extinguished by eration of law
at his death, and nothing in respect of the NDPP passed to his est te.
The contention that joinder brought about litis contestatio
[20] The plaintiff's principal answer must be confronted directly. the pre-trial
[21]
questionnaire the plaintiff asserted that litis contestatio against e NDPP "has
been reached due to the effluxion of time periods for filing by the N PP of its Notice
of Intention to Defend and subsequent pleadings following the Plai tiff's service of
the order joining [the] NDPP".18 The argument, developed in the h lads, is that the
joinder of the NDPP, followed by the expiry of the time to plead a d the notice of
bar of 13 September 2021, closed the pleadings and so achieved r is contestatio,
whereupon the claim became transmissible to the estate. I am un1• le to accept it,
for four reasons.
First, the argument equivocates between two different senses o • "joinder". Litis
contestatio - in the older usage, "joinder of issue" - is the clo e of pleadings,
the moment at which the parties' cases are fixed.19 Joinder of the OPP as a party
is the opposite: it is the event that opens the pleadings against ti at party. Once
joined, the NDPP still had to be served, to enter appearance and o plead before
issue could be joined with it. The joinder of 12 August 2021 was thul the beginning
of the lis against the NDPP, not its litis contestatio. No authority equl tes the joinder
of a defendant with the close of pleadings; the two are distinct cone pts and cannot
be collapsed.
[22] Secondly, and decisively, the point is temporal. The rule requires itis contestatio
to have been reached in the lifetime of the claimant. The decea ed died on 21
to have been reached in the lifetime of the claimant. The decea ed died on 21
February 2021. Whichever date the plaintiff selects for litis conies~! tio against the
NDPP - joinder (12 August 2021 ), expiry of the bar (late Septemb r 2021 }, or the
18Defendants' pre-trial questions, answer to question 7 (Caselines, pre-trial minute of 5 eptember 2023).
19Rule 29(1)(a). The plaintiff invokes Milne NO v Shield Insurance Co ltd 1969 (3) SA J52 (A) at 359F-G
and Moghambaram v Travagaimmal 1963 (3) SA 61 (D) for the proposition that issi e may be joined
otherwise than by a replication, and that pleadings are considered closed when a party
I
barred.
[23]
subsequent set-down (2022 to 2023) - every one of them is poi t-mortem. It is
therefore unnecessary to decide whether closure of pleadings by bar amounts to
litis contestatio for the purpose of transmissibility: even on the a f umption most
favourable to the plaintiff, the closure came after death, and so ca e too late. The
position is a fortiori that in Mtshwene , where a notice of bar serve within a month
of the plaintiff's death did not avail the estate; here, at the death, he NDPP had
not even been joined.20
Thirdly, the argument inverts the logic of the maxim. It assumes the f laim was alive
and needed only to be carried across the litis contestatio thresho r- But a purely
personal claim is extinguished ipso iure at the instant of death. A er 21 February
2021 there was no claim against the NDPP capable of being pie ltled to, barred,
or closed. The notice of bar, the set-down and the eventual plea al operated upon
nothing. One cannot reach litis contestatio upon a cause of action I at has ceased
to exist; and the rationale of the exception - to protect proc dings already
underway at death - has no purchase where, at the date of death, o proceedings
against the party in question were undel'Way at all.
[24] Fourthly, the joinder is, if anything, self-defeating of the plaintiff's case. Far from
rescuing the claim, the post-death joinder is the very fact th t confirms its
abatement as against the NDPP. It also raises a difficulty the p bintiff does not
confront: the joinder order was granted on 12 August 2021, whe I the deceased
was already dead and no executor had been appointed (the letters of executorship
issued only on 10 November 2022). Whether a defendant may ,,ompetently be
joined to a personal action after the plaintiff's death and before an representative
of the estate exists is, to put it no higher, doubtful. I need not deci , e the action on
that footing; it suffices that the joinder cannot bear the weight th plaintiff places
upon it.
upon it.
The attorney's ignorance of his client's death
[25] The plaintiff sought to meet the difficulty by invoking the rule that ao s done in good
faith by an attorney who is ignorant of his clierit's death are valid: ~r attorney was,
on his unchallenged affidavit, unaware of the death until 29 July 022; the notice
20Mtshwene (n 17 above), where a notice of bac se,ved on the defendant within a montJ after the plaintiff's
death did not avail the estate, litis contestatio not having been reached at the date of d th.
of bar of 13 September 2021 was therefore valid; the NDPP w s duly barred;
pleadings closed; and the claim became transmissible.
[26] The general rule, which both parties accept, is that the mandate between client
and attorney - a species of mandate - terminates on the death ,, f the principal.
In Du Toit v Bornman, with reference to Voet 17 .1.15, the cou , confirmed the
general rule and recognised a limited exception where the agent hf S in good faith
carried on the principal's business in ignorance of his death, an ei ception resting
on the protection of third parties who deal with the agent without k owledge of the
death.21
(27] Even granting the exception its fullest scope, it cannot assist t e plaintiff. The
exception concerns the validity of the acts of the agent; it says nothing of the
survival of the rights of the principal. The deceased's persa al claim was
extinguished at his death. The bona fide ignorance of his attorney I ay protect the
formal validity of steps taken vis-a-vis third parties and the i urt; it cannot
preserve, still less revive, a right of action that the substantive law ( tinguished on
21 February 2021. A formally valid notice of bar could not close pleadings on a
claim that no longer existed, nor produce a litis contestatio capa ,:le of rendering
transmissible a claim that had abated months earlier. To hold oth { wise would let
the fortuity of an attorney's ignorance confer on an estate subst tive rights the
law denies it.
[28] It is therefore unnecessary to decide whether the exception extend to the exercise
of a coercive procedural right - the delivery of a notice of bar - at a time when
no executor had been appointed and no person was competent o take litigation
decisions for the estate. Even assuming the notice of bar was not ! n that account
a nullity, it could have no effect on the anterior extinction of the clai . The plaintiff's
reliance on rule 7, and the submission that the NDPP is precluded f lorn challenging
reliance on rule 7, and the submission that the NDPP is precluded f lorn challenging
the attorney's authority, are misplaced tor the same reason: th • point is not a
challenge to the attorney's authority but a matter of law going to e existence of
21 Du Toit v Bornman and Another (cited in the plaintiff's heads as 1992 (4) SA 257 (C)
11
t 261F-H , and in
the fourth defendant's supplemental"} heads as ~99~ (~) SA '1 58 (W}) [NOTE TO CHA BERS·. the parties
cite conflicting references for this decision - to be verified against the law reports]; Voe icommentarius ad
Pandectas 17 .1.15-16; Herbstein & Van Win sen The Civil Practice of the High Courts South Africa 5 ed
Vol 1 at 286.
the claim. As Stransham-Ford holds, where there is no longer a aim, "there [is]
nothing left on which the court [can] pronounce".22
The independent claim of a dependant
[29] Our law recognises an independent action by a dependant - for ej"ampfe, for loss
of support occasioned by a wrongful death - which is not dl i ived from the
deceased's estate and is unaffected by the maxim. That recog ition does not
assist the plaintiff. She sues as executor, advancing the deceased'! own personal
claim for the injury done to him by his arrest, detention and prose9 tion. No claim
for loss of support, and no independent dependant's action, is plJ ded or before
me. The distinction confirms, rather than qualifies, the conclusion the only claim
in issue is the deceased's personal claim, and it is precisely such claim that the
maxim extinguishes on death before litis contestatio.
Prescription
[30] The plaintiffs supplementary heads meet the court's question not I ith the maxim
but with prescription, contending that the claim "remains live because the
deceased lacked knowledge of the identity of the debtor and of the
1
acts giving rise
to the debt, and that the onus to prove the running of prescripti , n rests on the
NDPP.23 Prescription, however, is a different and later question. T e extinction of
the claim with which I am concerned arises not from the lapse of f me under the
Prescription Act but from the death of the claimant before litis cont[ statio. A claim
may be unprescribed and yet have abated by death; the two do I trines operate
independently. Because the claim against the NDPP abated on 21 • ebruary 2021,
it is unnecessary to decide whether it had also prescribed, and I re ain from doing
so. The plaintiffs prescription argument, even if correct, cannot revive a claim
already extinguished by death.
The consequences for the two applications
22Stransham-Fo rd (n 14 above) para 20.
23Section 12(1) and (3) of the Prescription Act 68 of 1969; Gericke v Sach 1978 ( 1) SA 8 • 1 (A) at 828; and,
on the incidence of the onus, President of the Republic of South Africa and Another -v T
11
bani and Others
2025 (2) SA 371 (CC) para 58, relied upon in the plaintiff's supplementary heads.
[31]
[32]
The rule 30 application rests on the premise that the NDPP I as under an
automatic bar from late September 2021 and could not plead withe It the bar being
lifted. The premise fails at every level. When the notice of bar was r elivered there
was no living plaintiff and no extant claim against the NDPP; t f notice could
compel nothing, and there was nothing in respect of which pleadinl, s could close.
Moreover, rule 30 avails only a party who shows prejudice in the conduct of the
cause; an applicant whose underlying claim has been extinguis I ed suffers no
cognisable prejudice from the delivery of a plea, however late. I ether the plea
was in fact out of time does not arise. The application must be dis issed.
The condonation application fares no better. Section 3(4)(b) emp ,lwers the court
to condone the failure to serve the statutory notice only where, amo g other things,
the debt has not been extinguished - and condonation is, as Pr; mier, Western
Cape v Lakay explains, permission to enforce a right.24 Here t e debt - the
deceased's personal claim - has been extinguished, not by pr~~j' ription, but by
death before litis contestatio. To condone the want of notice + uld grant the
plaintiff leave to pursue a claim that no longer exists. That would b • an exercise in
futility, and the application must likewise be dismissed.
(33] In the light of these conclusions 1 do not decide the NDPP's further contentions -
the validity of its joinder, the regularity of service upon it, the a sence of any
amendment of the particulars to plead a case against it, or prescript on. I expressly
leave them open.
The scope of this judgment
{34] Only the two interlocutory applications, each directed at the NDPP, re before me,
and my findings are confined to the claim against the NDPP Whether the
deceased's claims against the first and second defendants ha reached litis
contestatio before his death - the plaintiff contends that pleadings closed against
contestatio before his death - the plaintiff contends that pleadings closed against
those defendants upon a replication, the date of which is not com
1
on cause - is
not a question I am called upon to decide, and I refrain from doing • o. The further
conduct of the action, and the consequences of this judgment for it, I re matters for
the parties and, if necessary, for the trial court.
24Premier, Western Cape v Lakay 2012 (2) SA 1 (SCA) para 25.
Costs
{35] Costs should follow the result. The NDPP employed one counsel, r senior status.
The issues - the transmissibility of personal claims, the ter ination of an
attorney's mandate on death, and the interplay of rules 7, 15, 26, 9 and 30 with
section 3 of the Act - were of sufficient complexity and importanc I to warrant the
fees of counsel being allowed on scale C, as prayed.
Order
{36] In the result the following order is made:
1. The plaintiff's application in terms of rule 30 of the Uniform ules of Court
is dismissed.
2. The plaintiff's application in terms of section 3(4){b) of the Ins itution of Legal
Proceedings against Certain Organs of State Act 40 of 200 is dismissed.
3. The plaintiff is ordered to pay the costs of both application , including the
costs of counsel, such costs to be allowed on scale C as c , ntemplated in
rule 67 A read with rule 69.
Acting Judge of the Hi h Court of South Africa
Gauteng Division, Pretoria
This judgment was prepared and authored by the judge whose name is reflect d above and is
handed down electronically by circulation to the parties· legal representatives e-mail and by
uploading to the electronic file of this matter on Caselines. The date for hand-do n is deemed to
be 17 JUNE 2026.
Appearances
For the plaintiff: Adv M Mlisana with Adv M M Sona
Instructed by: Tl Mothoa Attorneys, Pretoria
For the NDPP (fourth defendant): Adv J F Barnardt SC
Instructed by: The State Attorney, Pretoria
Date of hearing: 8 June 2026
Supplementary heads delivered: 8 and 9 June 2026
Date of judgment: 17 June 2026