IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION: MTHATHA]
CASE NO. 1174/2016
In the matter between:
THEMBILE MGATYELWA Applicant
and
MINISTER OF POLICE 1st Respondent
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT 2nd Respondent
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS 3rd Respondent
___________________________________________________________________
LEAVE TO APPEAL JUDGMENT
___________________________________________________________________
JOLWANA J
[1] In his application for leave to appeal Mr Mgatyelwa cites a number of reasons
why he contends that this Court was wrong in upholding the third respondent’s
special plea of prescription and ordering him to pay costs. In addition to those
reasons on the basis of which he contends that his appeal has a reasonable
prospect of success, he further contends that there is a compelling reason why his
appeal should be heard.
[2] I do not intend to recite those grounds of appeal in this judgment. I will also not be
regurgitating the reasons for the findings that I made in my judgment. Having
carefully considered the grounds of appeal, I will simply focus on whether the test for
the granting of the application for leave to appeal has been met.
[3] The test for the granting of an application for leave to appeal was considered and
authoritatively restated in Ramakatsa1 as follows:
“… [L]eave to appeal may only be granted where the judges concerned are of the
opinion that the appeal would have a reasonable prospect of succ ess or there are
compelling reasons which exist why the appeal should he heard such as the interests
of justice. This is Court in Caratco concerning the provisions of section 17(1)(a)(ii) of
the SC Act pointed out that if the court is unpersuaded that there are prospects of
success, it must still enquire into whether there is a compelling reason to entertain
the appeal. Compelling reason would of course include an important question of law
or a discreet issue of public importance that will have an effect of future disputes.
However, this Court correctly added that ‘but here too the – merits remain vitally
important and are often decisive. I am mindful of the decisions at the high court level
debating whether the use of the word ‘would’ as opposed to ‘could’ possibly means
that the threshold for granting the leave has been raised. If a reasonable prospect of
success is established, leave to appeal should be granted. Similarly, if there are
some other compelling reasons why the appeal should be heard, leav e to appeal
should be granted. The test of reasonable prospects of success postulates a
dispassionate decision based on the facts and the law that a court of appeal could
reasonably arrive at a conclusion different to that of the trial court. In other words,
reasonably arrive at a conclusion different to that of the trial court. In other words,
the appellants in this matter need to convince this Court on proper grounds that they
have prospects of success on appeal. Those prospects of success must not be
remote but there must exist a reasonable chance of succeeding. A sound rational
basis for the conclusion that there are prospects of success must be shown to exist.”
1 Ramakatsa and Others v African National Congress and Another [2021] ZASCA 31 (31 March 2021).
[4] Mr Mgatyelwa was arrested in 2014 which is the date on which his cause of
action arose. At the very least in 2015 he would have known who was responsible
for the conduct which he alleged was unlawful and injurious to his persona for which
he sought to be recompensed. As indicated in my judgment, in the unlikely event
that he did not know that for the conduct of the prosecutor concerned the third
respondent was liable for the damages claimed, he was told in no uncertain terms by
the second respondent that his debtor was the third respondent as far back as 2018.
I do not think that any other court would find differently on those objective facts.
[5] Whether or not the cause of action is based on common law or on the statute,
that is the National Prosecuting Authority Act 32 of 1998 the prescriptive period
remains three years. Therefore, it matters not that Mr Mgatyelwa’s claim is based on
an alleged breach of a statutory provision as against common law or vice versa. For
the reasons set out in my judgment and having considered the facts and the law, the
submissions made on behalf of Mr Mgatyelwa and in particular, his reasons for
seeking leave to appeal, I am not convinced that a reasonable prospect of success
has been established. On the contrary, I am convinced that no court would arrive at
a decision different to the one I arrived at on the issue of Mr Mgatyelwa having
become aware that for the alleged transgressions of the prosecutor who handled his
criminal matter he became aware that he should sue the third respondent in 2018,
long before March 2024, in particular, prior to Zono AJ’s judgment on the non -joinder
special plea raised by the second respondent. Therefore, he has no reasonable
prospect of success on appeal.
[6] The last issue is whether there exists any compelling reason for this matter to be
considered on appeal. Mr Mgatyelwa contends that there is a compelling reason
why the appeal should be heard. He cites the fact that the special plea of
prescription was determined on basis that he was informed of the identity of the third
respondent through a pleading filed by the second respondent. It is indeed so that
the second respondent raised a special plea of the non -joinder of the third
respondent pointing to the third respondent as being liable for the wrongful actions or
inactions of the prosecutor who prosecuted him in his criminal case or who handled
his criminal matter subsequent to his arrest. The nub of his contention in this
instance is that the court, in determining the special plea of prescription as it did,
engaged in an interpretative exercise of section 12(3) of the Prescription Act based
on a defence pleaded by another party which is the second respondent. He
contends that it is the first time in our jurisprudence that section 12(3) of the
Prescription Act has been interpreted on that basis.
[7] In making this submission it must be that Mr Mgatyelwa takes the view that the
actual interpretation of section 12(3) would differ depending on the circumstances of
each case and not on the existence of actual or constructive knowledge of the
existence of the debt and/or the identity of the debtor. Therefore, how section 12(3)
is interpreted or applied could change depending on a particular factual matrix
regardless of the requisite knowledge as to the debt or the debtor having been
acquired. I disagree. The difficulty with Mr Mgatyelwa’s argument in this regard is
that it is at odds with the legal position on t he interpretation of section 12(3) as
recently confirmed by the Constitutional Court in Tembani2. In that case Rogers J
said:
“Subject to the requisite actual or constructive knowledge by the creditor a delictual
debt becomes “due”, within the meaning of section 12(3) of the Prescription Act and
section 3(2)(a) of the Institution Act once the debtor’s wrongful and deliberate or
2 President of the Republic of South Africa and Another v Tembani and Others 2025 (2) SA 371 (CC) para
85-86.
negligent conduct has caused the creditor to suffer damage. That is when the
creditor is entitled in law to institute action for the recovery of damages.
In terms of section 12(3) of the Prescription Act and section 3(2)(a) of the Institution
Act, this is subject to the qualification that time does not start to run (that is debt is
not deemed to be “due”) until the creditor has actual or constructive knowledge of the
identity of the debtor and the “facts from which the debt arises …”
[8] Once a claimant for damages has actual or constructive knowledge of the debt
and the debtor the source of that knowledge is immaterial to the questio n of when
does the debt become due. Therefore, Mr Mgatyelwa’s contention that the source of
his information bears some relevance on the determination of prescription or the
application of section 12(3) of the Prescription Act is incorrect, unsustainable and
stands to be rejected. Therefore, his application for leave to appeal even on the
basis of a compelling reason for the hearing of the appeal must therefore fail.
[9] In the result the following order shall issue:
1. The application for leave to appeal is refused.
2. The applicant is ordered to pay the costs of the application for leave to appeal on
scale B referred to in Rule 67A of the Uniform Rules of Court.
____________________
M.S. JOLWANA
JUDGE OF THE HIGH COURT
Appearances:
Attorney for the applicant : M. PANGWA
Instructed by : CAPS PANGWA AND ASSOCIATES
MTHATHA
Counsel for the third respondent : A. BODLANI SC
Instructed by : STATE ATTORNEY
MTHATHA
Date heard : 02 July 2026
Date delivered : 20 August 2026