THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 730/2021

In the matter between:
MINISTER OF POLICE

FIRST APPELLANT
GEZANI MICHAEL CHABALALA

SECOND APPELLANT
SELLO CHAUKE

THIRD APPELLANT
SIMPHIWE LAURENS DANTI

FOURTH APPELLANT

and

SAMUEL MOLOKWANE

RESPONDENT

Neutral citation: Minister of Police and Others v Samuel Molokwane (730/2021)
[2022] ZASCA 111 (15 July 2022)
Coram:
VAN DER MERWE, SCHIPPERS and MAKGOKA JJA and MUSI and
MAKAULA AJJA
Heard:
13 May 2022
Delivered:
15 July 2022
Summary:  Civil Procedure – s 2(2) of State Liability Act 20 of 1957 –– whether
failure to serve summons against Minister of Police on State Attorney nullified
summons.

___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from: Gauteng Division of the High Court, Pretoria (Van der Schyff J, sitting
as a court of first instance):
The appeal is dismissed with costs, including costs of two counsel where so employed.
___________________________________________________________________

JUDGMENT
___________________________________________________________________

Makgoka JA (Van der Merwe and Schippers JJA and Musi and Makaula AJJA
concurring):
[1] The appeal turns on whether the respondent’s omission to serve a copy of a
summons issued against the first appellant, the Minister of Police (the Minister), on the
State Attorney, rendered the summons a nullity, despite a copy having been served
on the Minister. The Gauteng Division of the High Court, Pretoria (the high court)
concluded that it did not, and dismissed two special pleas raised by the appellants
based on such non-service. The high court subsequently granted the appellants leave
to appeal to this Court.

[2] The factual background is briefly this. On 2 December 2015, Mr Molokwane
(the respondent) instituted action in the high court against the first appellant, the
Minister, the second, third and fourth appellants, in which the respondent claimed
damages arising from alleged wrongful arrest and assault by the second to fourth
appellants on 8 February 2014. It is common cause that the second to fourth
respondents were acting within the course and scope of their employment with the
Minister, and they were, respectively, served with copies of the summons on
8 December 2015. There is no controversy about service on these appellants. It is the
service on the Minister which is at the heart of the appeal.

[3] Service of the process commencing litigation against members of the national
executive, such as the Minister, is governed mainly by s 2(2) of the State Liability Act
20 of 1957 (the State Liability Act). Before its amendment, and at the relevant period
to this matter, that section read as follows:
‘(1) In any action or other proceedings instituted by virtue of the provisions of section 1, the
executive authority of the department concerned must be cited as nominal defendant or
respondent.
(2) The plaintiff or applicant, as the case may be, or his or her legal representative must, within
seven days after a summons or notice instituting proceedings and in which the executive
authority of a department is cited as nominal defendant … has been issued, serve a copy of
that summons… on the State Attorney.’

[4] The above provisions were not complied with, as the respondent caused a copy
of the summons to be served on the Minister at his official place of business,
Wachthuis, 231 Pretorius Street, Pretoria, on 4 December 2015. It was never served
on the State Attorney as prescribed in s 2(2) of the State Liability Act. There was no
appearance to defend by any of the appellants. Consequently, the respondent
obtained default judgment on 4 March 2016 against the appellants, in terms of which
liability and quantum of the claim were separated in terms of rule 33(4) of the Uniform
Rules of Court (the Uniform Rules) and liability was determined in favour of the
respondent against the first, third and fourth appellants on the basis that the
respondent was entitled to recover his full proven or agreed damages against the
appellants. The determination of the respondent’s quantum was postponed sine die.

[5] The order granting default judgment was served on the Minister on 22 March
2016. On 26 March 2018, the respondent lodged an application against the Minister
for the determination of quantum. That application was served on the State Attorney
on 24 August 2018, and on the Minister at his official place of business. The
respondent also served a notice of intention to amend his particulars of claim; the
amended pages to the particulars of claim; and the order granting default judgment on
4 March 2016, as mentioned already. The application for the determination of quantum
was set down for 10 September 2018.

[6] On 29 August 2018, the State Attorney, on behalf of all the appellants, delivered
a notice of intention to oppose that application. On 6 September 2018 the State
Attorney launched an application on behalf of the appellants to stay the application for
the determination of quantum, pending the rescission of the default judgment granted
on 4 March 2016. On 25 November 2019 the respondent abandoned the default
judgment in terms of rule 41(2) of the Uniform Rules. On 13 December 2019 the State
Attorney delivered a notice of intention to defend the action on behalf of the appellants
and subsequently delivered their plea to the respondent’s particulars of claim.

[7] On 3 September 2020 the appellants delivered an amended plea, in which they
raised two special pleas, in the alternative. The main plea was based on non-
compliance with s 2(2) of the State Liability Act, as mentioned already. It was
contended that because there was no service of a copy of the summons on the State
Attorney, the respondent’s summons was a nullity. Alternatively, the appellants
pleaded that in the event it was found that service was effected on the State Attorney
on 24 August 2018 (when the application for determination of quantum against the
Minister was served on the State Attorney) the respondent’s claim had prescribed, as
that occurred more than three years after the respondent’s cause of action arose on
8 February 2014.

[8] The special pleas were placed before the high court by way of a Special Case
and Statement of Facts in terms of rule 33(1) and (2) of the Uniform Rules, which set
out the issues for determination. It was agreed, among other things, that ‘if the
defendants’ special pleas [were] dismissed the trial is to immediately proceed in
respect of the issue of the defendants’ liability.’

[9] The high court considered the purpose of s 2(2) of the State Liability Act, and
reasoned that the non-service on the State Attorney did not render the summons a
nullity. At most, the high court held, the non-service constituted an irregular step, which
could be rectified. It further held that, in any event, the ‘irregular step’ of non-service
became moot when the State Attorney formally placed itself on record on behalf of the
appellants, exchanged pleadings with the respondent’s attorneys, and participated in
a pre-trial conference. The high court concluded that the appellants had failed to

demonstrate that they were prejudiced by non-service on the State Attorney. It
accordingly dismissed the appellants’ special pleas.

[10] In this Court, the submissions on behalf of the appellants were as follows.
Service upon the State Attorney was ‘mandatory’ in terms of s 2(2) of the State Liability
Act, as that provision was ‘couched in peremptory terms by the use of the words “must
within 7 days serve”.’ As the State Liability Act does not make provision for
condonation for non-compliance with the service on the State Attorney, a court had no
power to condone such non-compliance. In the result, the special plea of non-service
should have been upheld. Alternatively, the high court should have found that the
respondent’s action had been extinguished by prescription by the time summons was
served on the State Attorney on 24 August 2015.

[11] The approach to s 2(2) propounded on behalf of the appellants is incompatible
with the approach to the interpretation of similar provisions by our courts. As explained
in All Pay Consolidated Investment Holdings (Pty) Ltd and Others v The Chief
Executive Officer, South African Social Security Agency and Others [2013] ZACC 42;
2014 (1) SA 604 (CC); 2014 (1) BCLR 1 (CC) para 30, the strict mechanical approach
of drawing ‘formal distinctions between “mandatory or peremptory” provisions on the
one hand and “directory” ones on the other, the former needing strict compliance on
pain of non-validity, and the latter only substantial compliance or even non-
compliance, has been discarded’.

[12] The jettisoning of the ‘mechanical approach’ has its origin in Maharaj and
Others v Rampersad 1964 (4) SA 638 (A). After having concluded that the
legislative provision it was concerned with was peremptory, the court went on to
enquire whether it was fatal that it had not been strictly complied with. This Court laid
down the following test at 646C-E:
‘. . .The enquiry, … is not so much whether there has been ‘exact’, ‘adequate’ or ‘substantial’
compliance with this injunction but rather whether there has been compliance therewith. This
enquiry postulates an application of the injunction to the facts and a resultant comparison
between what the position is and what, according to the requirements of the injunction, it ought
to be. It is quite conceivable that a court might hold that, even though the position as it is, is
not identical with what it ought to be, the injunction has nevertheless been complied with. In

deciding whether there has been a compliance with the injunction the object sought to be
achieved by the injunction and the question of whether this object has been achieved, are of
importance.’

[13] In Nkisimane and Others v Santam Insurance Co Ltd 1978 (2) SA 430 (A) at
433H-434A the following was said about the categorisation of statutory requirements
as ‘peremptory’ or ‘directory’:
‘… They are well-known, concise, and convenient labels to use for the purpose of
differentiating between the two categories. But the earlier clear-cut distinction between them
(the former requiring exact compliance and the latter merely substantial compliance) now
seems to have become somewhat blurred. Care must therefore be exercised not to infer
merely from the use of such labels what degree of compliance is necessary and what the
consequences are of non or defective compliance. These must ultimately depend upon the
proper construction of the statutory provision in question, or, in other words, upon the intention
of the lawgiver as ascertained from the language, scope, and purpose of the enactment as a
whole and the statutory requirement in particular…’.

[14] In
Ex
Parte
Mothuloe
(Law
Society,
Transvaal,
Intervening)
1996 (4) SA 1131 (T) at 1132F, it was observed, with reference to Maharaj and other
authorities, that there was a ‘. . .trend in interpretation away from the strict legalistic to
the substantive. . .’. It was emphasised that even though the provisions of an Act are
peremptory, the question needs to be asked whether or not exact compliance
therewith is required. Consequently, the answer will ‘. . . be sought in the purpose of
the statutory requirement which is to be ascertained from its language read in the
context of the statute as a whole’.

[15] The ‘trend’ referred to above was applied in Weenen Transitional Local Council
v Van Dyk 2002 (4) SA 653 (SCA) where it was emphasised that in matters such as
the present, the question is whether there has been compliance with the statutory
provisions viewed in the light of their purpose. This Court trenchantly observed at para
13:
‘… Legalistic debates as to whether the enactment is peremptory (imperative, absolute,
mandatory, a categorical imperative) or merely directory; whether ‘shall’ should be read as
‘may’; whether strict as opposed to substantial compliance is required; … etc may be
interesting, but seldom essential to the outcome of a real case before the courts. They tell us

what the outcome of the court’s interpretation of the particular enactment is; they cannot tell
us how to interpret. These debates have a posteriori, not a priori significance. . . .’

[16] This approach received the imprimatur of the Constitutional Court in African
Christian Democratic Party v Electoral Commission and Others [2006] ZACC 1; 2006
(3) SA 305 (CC); 2006 (5) BCLR 579 (CC) para 25. There, it was held that the adoption
of the purposive approach in our law has rendered obsolete all the previous attempts
to determine whether a statutory provision is directory or peremptory on the basis of
the wording and subject of the text of the provision. The question was thus ‘whether
what the applicant did constituted compliance with the statutory provisions viewed in
the light of their purpose’. A narrowly textual and legalistic approach is to be avoided.
[17] There is also the injunction in s 39(2) of the Constitution, which enjoins courts,
when interpreting any legislation, to promote the spirit, purport and objects of the Bill
of Rights. Thus, where a provision is reasonably capable of two interpretations, the
one that better promotes the spirit, purport and objects of the Bill of Rights should be
adopted.1 The right implicated in this case is that of access to courts, enshrined in s 34
of the Constitution.2 Consistent with this injunction, the interpretation of s 2(2) of the
State Liability Act must be one which promotes this right, by considering the underlying
purpose of the section, rather than merely its text.  This purposive approach is far more
consistent with our constitutional values, than reading the section narrowly and strictly,
as preferred by the appellants.
[18] With these interpretive iterations in mind, I turn to s 2(2) of the State Liability
Act. Its purpose, especially the requirement that a summons   must be served on the
State Attorney within seven days after it was issued, is clearly to ensure that the
relevant ‘executive authority’ (the Minister in this case) is afforded effective legal
representation in the matter by the State Attorney. If the State Attorney provides such
legal representation, in any manner whatsoever, despite it not having been served by

1 Wary Holdings (Pty) Ltd v Stalwo (Pty) and Another [2008] ZACC 12; 2009 (1) SA 337 (CC); 2008
(11) BCLR 1123 (CC) paras 46, 84, 107.
2 Section 34 of the Constitution of Republic of South Africa, 1996 provides:
‘Access to courts
34. Everyone has the right to have any dispute that can be resolved by the application of law decided
in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal
or forum.’

the sheriff within seven days of the process commencing such proceedings, this
purpose would have been served. That would also be the position where, as in the
present case, there was no service on the State Attorney at all. In other words, it is not
so much about how the State Attorney obtained the knowledge of the process
commencing proceedings, as the representation of the party in the legal proceedings
itself.

[19] In the present case, a copy of the summons was served on the Minister. In the
midst of legal and technical arguments advanced on behalf the Minister, there is
deafening silence on the Minister’s part as to what he did with the summons after
receiving it. The critical point, however is that the State Attorney effectively
represented the Minister in this action, by entering appearance to defend the action if
de novo, by filing a plea and by being able to be ready for trial. Thus, the purpose of
the section has been achieved. The Minister’s contention that, despite a copy of the
summons having been served on him, the summons should nevertheless be declared
a nullity solely because it has not been served on the State Attorney, is simply
untenable.

[20] One of the overarching considerations in matters of this nature is prejudice. In
the present case, I am unable to discern any prejudice suffered by the Minister as a
result of non-service of a copy of the summons on the State Attorney. The Minister
has not pointed to any. As I have said he was able to serve a plea in which he
responded to the respondent’s allegations in the combined summons. The absence of
prejudice is also evident from the fact that in the statement containing the agreed facts,
the Minister asserts none. Instead, the parties agreed that in the event the special
pleas were dismissed, the trial would proceed immediately on the issue of liability. To
my mind, this is the clearest indication that the Minister suffered no prejudice.

[21] Furthermore, the respondent’s condonation application for the late service of
his statutory notice in terms of s 3 of the Institution of Legal Proceedings against
Certain Organs of State Act 40 of 2002 (Legal Proceedings Act), was granted. In terms
of s 3(4)(b)(iii) of the Legal Proceedings Act, the court granting such application must
be satisfied, among others, that the organ of state was not unreasonably prejudiced

by the failure which necessitated the condonation application. The application for
condonation was served on the State Attorney, who at that stage, was already on
record on behalf of all the appellants. If ever there was prejudice, one would have
expected the Minister to place the necessary facts before the court to establish it.
Instead, the Minister decided not to oppose the application. It must therefore be
accepted that no prejudice occurred to the Minister.

[22] It remains to consider briefly, the appellants’ alternative special plea of
prescription. As mentioned already, the appellants contended that service on the State
Attorney had occurred more than three years (on 24 August 2018) after the
respondent’s cause of action arose on 8 February 2014. In terms of s 11(d) of the
Prescription Act 68 of 1969 (the Prescription Act), the respondent’s claim would have
prescribed after three years, ie on 7 February 2017. Section 15 of the Prescription Act
provides that the running of prescription shall be interrupted by the service on the
‘debtor’ of any process whereby the creditor claims payment of the debt. There is no
dispute that the Minister is the ‘debtor’ as envisaged in s 15(1) of the Prescription Act.

[23] The respondent’s condonation application for the late service of his statutory
notice in terms of s 3 of the Legal Proceedings Act, was granted.  Similar to the issue
of prejudice as discussed above, in terms of s 3(4)(b)(i) of the Legal Proceedings Act,
the court granting an application for condonation must be satisfied, among others, that
the debt had not been extinguished by prescription. To the extent the high court has
granted the condonation, it, of necessity, found that the respondent’s claim had not
been extinguished by prescription. The issue is thus res judicata, and no longer open
to the appellants to assert it.

[24] The plea of prescription in any event had no merit. It is correct that when this
section is read with s 2 of the Legal Proceedings Act, service on the State Attorney,
instead of the Minister, would have been effective service to interrupt prescription.
However, this does not mean that the State Attorney replaced the Minister as the
‘debtor’. Viewed in this light, service on the Minister, as it happened in the present
case, was effective for the purpose of interrupting prescription. The fact that the
summons has not been served within the prescripts of s 2(2) of the State Liability Act,

does not affect this. For purposes of interrupting prescription, there was service of ‘a
process’ on the Minister. I am fortified in this view by the fact that, where summons is
served without giving the statutory notice in terms of s 3 of the Legal Proceedings Act
within the prescribed period, or at all, such service is nevertheless effective for the
interruption of prescription if condonation is subsequently granted.3

[25] In all the circumstances the high court was correct to dismiss the special pleas.
The appeal must, accordingly, fail.

[26] In the result the following order is made:
The appeal is dismissed with costs, including costs of two counsel where so employed.

__________________
T MAKGOKA
JUDGE OF APPEAL

3 See Minister of Safety and Security v De Witt [2008] ZASCA 103; 2009 (1) SA 457 (SCA) para 18.

APPEARANCES:
For appellants:

H C Janse van Rensburg (with him J J van Rensburg)
Instructed by:

State Attorney, Pretoria
State Attorney, Bloemfontein.

For respondent:

T Odendaal (heads of argument having been
prepared by J P Van den Berg SC and T Cooper)
Instructed by:

Adams & Adams, Pretoria

Honey Attorneys, Bloemfontein.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY

FROM:
The Registrar, Supreme Court of Appeal

DATE:
15 July 2022
STATUS:
Immediate

Please note that the media summary is for the benefit of the media and does not form part of the
judgment of the Supreme Court of Appeal.

Minister of Police and Others v Samuel Molokwane (730/2021) [2022] ZASCA 111 (15 July 2022)
Today, the Supreme Court of Appeal, per Makgoka JA (Van der Merwe, Schippers and Musi and
Makaula AJJA concurring), handed down a judgment dismissing an appeal against an order of the
Gauteng Division of the High Court, Pretoria, which had dismissed two special pleas by the Minister of
Police (the Minister). The respondent, Mr Molokwane, had issued a summons against the Minister and
the second to fourth appellants for damages allegedly suffered due to unlawful arrest and assault by
the second to fourth appellants.
At that time, and before its amendment, s 2(2) of the State Liability Act 20 of 1957 (State Liability Act)
provided that a copy of a summons against the Minister had to be served on the State Attorney within
seven days of it being issued. Mr Molokwane did not comply with this requirement. Instead, he caused
a copy of the summons to be served on the Minister at his official place of business in Pretoria. The
State Attorney became aware of the legal proceedings after default judgment had been obtained against
the Minister. The respondent abandoned the default judgment, whereafter, the State Attorney filed a
notice a notice of intention to defend and a plea. Later, the State Attorney filed a special plea asserting
that the non-service on it, rendered the summons a nullity. Alternatively, it was contended that the
respondent’s claim had become prescribed by the time the State Attorney gained knowledge of the
summons.
The high court dismissed the special pleas on the basis there had been substantial compliance with the
provision, but subsequently granted leave to appeal to the Supreme Court of Appeal.
Before the Supreme Court of Appeal, it was contended on behalf of the Minister that because the
provisions of s 2(2) State Liability Act were couched in ‘peremptory’ terms, non-compliance therewith
was fatal, and rendered the summons a nullity. The Court rejected this submission, and pointed that in
our law, the approach is no longer focussed on whether a statutory provision was peremptory or
directory, but on the purpose of the provision. In the present case, the purpose of s 2(2) of the State
Liability Act was to ensure that the Minister is afforded effective legal representation by the State
Attorney. If the State Attorney provides such legal representation, in any manner whatsoever, despite
it not having been served by the sheriff within seven days of the process commencing such
proceedings, this purpose would have been served.
In the present case, the Court took into consideration that the State Attorney delivered a notice of
intention to defend on behalf of the Minister after it became aware of the legal proceedings; delivered a
plea; participated in a pre-trial conference and expressed his readiness to proceed with the trial in the

event the special plea failed. The Court also considered the fact that the non-service of a copy of the
summons on the State Attorney occasioned no prejudice to the Minister.
As regards the alternative special plea of prescription, the Court found it to be without merit. The Court
pointed out that, for purposes of prescription, service on the Minister would have been effective to
interrupt prescription, albeit not within the prescripts of s 2(2).
Accordingly, the Court dismissed the Minister’s appeal with costs.

***END***