THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

CASE NO: 588/2007

THE MINISTER OF SAFETY AND SECURITY
Appellant

and

AUGUSTUS JOHN DE WITT
Respondent

Neutral citation: Minister of Safety and Security v De Witt (722/2007) 103
[2008] ZASCA (19 September 2008)

Coram:
Brand, Lewis and Ponnan JJA

Heard:
11 September 2008

Delivered:
19 September 2008

Summary:
Section 3(4) of the Institution of Legal Proceedings
Against Certain Organs of State Act 40 of 2002 permits a court to
condone a litigant’s failure to give a valid notice required by s 3(1), prior
to instituting legal proceedings, if the debt has not been extinguished by
prescription, good cause is shown and the debtor is not prejudiced.
Application for condonation may be made by the creditor even after
proceedings have been instituted  if the debt has not prescribed.

ORDER

On appeal from High Court, Cape Town (Eastern Circuit) (Fourie J sitting
as court of first instance).
The appeal is dismissed with costs.
JUDGMENT

LEWIS JA (Brand and Ponnan JJA concurring)
[1] This appeal turns on the interpretation of s 3 of the Institution of Legal
Proceedings Against Certain Organs of State Act 40 of 2002. The Act was
introduced to harmonize periods of prescription of debts owed by organs of
state, and to make provision for a uniform requirement for the giving of notice
in connection with the institution of legal proceedings. It repealed several
statutes that had previously regulated proceedings against various state
bodies such as the police and the defence force.  And it came after a decision
in the Constitutional Court – Mohlomi v Minister of Defence1 -  in which it was
held that s 113(1) of the Defence Act2 was unconstitutional since it made no
allowance for failure timeously to notify the defence force of the intention to
sue it, despite the circumstances.

[2] The Act is meant not only to bring consistency to procedural
requirements for litigating against organs of state but also, it is clear, to render
them compliant with the Constitution. The way in which it seeks to achieve a

1 1997 (1) SA 124 (CC). See also Moise v Greater Germiston Transitional Local Council:
Minister of Justice and Constitutional Development Intervening (Women’s Legal Centre as
amicus curiae) 2001 (4) SA 491 (CC).
2 44 of 1957.

procedure that is not arbitrary and that operates efficiently and fairly both for a
plaintiff and an organ of state is to give a court the power to condone a
plaintiff’s
non-compliance
with
procedural
requirements
in
certain
circumstances. Thus access to courts is facilitated, while at the same time
procedures against large governmental organizations that need to keep their
affairs in order are regulated.

[3] The purpose of having special requirements in place for the institution
of action against a state body is well-recognized and was put thus by Didcott J
in Mohlomi:3
‘Rules that limit the time during which litigation may be launched are common in our
legal system as well as many others. Inordinate delays in litigating damage the
interests of justice. They protract the disputes over the rights and obligations sought
to be enforced, prolonging the uncertainty of all concerned about their affairs. Nor in
the end is it always possible to adjudicate satisfactorily on cases that have gone
stale. By then witnesses may no longer be available to testify. The memories of ones
whose testimony can still be obtained may have faded and become unreliable.
Documentary evidence may have disappeared. Such rules prevent procrastination
and those harmful consequences of it. They thus serve a purpose to which no
exception in principle can cogently be taken.
It does not follow, however, that all limitations which achieve a result so
laudable are constitutionally sound for that reason. Each must nevertheless be
scrutinised to see whether its own particular range and terms are compatible with the
right which s 22 bestows on everyone to have his or her justiciable disputes settled
by a court of law. The right is denied altogether, of course, whenever an action gets

3 Paras 11 and 12. The section in issue there provided for a shortened time period within
which to sue, but the dicta are apposite also to the additional requirement of notice.

barred eventually because it was not instituted within the time allowed. But the
prospect of such an outcome is inherent in every case, no matter how generous or
meagre the allowance may have been there, and it does not per se dispose of the
point, as I view that at any rate. What counts rather, I believe, is the sufficiency or
insufficiency, the adequacy or inadequacy, of the room which the limitation leaves
open in the beginning for the exercise of the right. For the consistency of the
limitation with the right depends upon the availability of an initial opportunity to
exercise the right that amounts, in all the circumstances characterising the class of
case in question, to a real and fair one. The test, thus formulated, lends itself to no
hard and fast rule which shows us where to draw the line.’

[4] As I have said, the way in which the legislature has sought to avoid
drawing a hard and fast rule that may cause undue hardship to a plaintiff is to
make provision for time limits, and notices of intention to sue, but to enable a
court to condone a failure to comply with the requirements. Section 3(4) gives
the court a discretion to condone non-compliance, subject to three
requirements being met.
Section 3 reads:
‘3
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

(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 (2)(a)-

(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.

(4) (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.

(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.
. . . .’

[5] The section has been the subject of interpretation in several cases
already. In particular, the requirements of good cause and absence of
prejudice to the organ of state for condonation to be granted, set out in s
3(4)(b), were discussed by this court in Madinda v Minister of Safety and
Security.4 At issue in this case is a different question: where no notice is given
by the creditor, or where the notice is defective in some respect, but the legal
proceedings are instituted before the expiry of the prescription period, may a
court condone the failure to give notice, or the giving of defective notice, after
the summons or application has been served? The question takes on added
significance where proceedings are served before the prescriptive period has
ended, but notice is served only after that date, or where notice has been
served before the prescriptive period has ended but does not comply with
s 3(2).

[6] The respondent, John de Witt, together with two other men, was
arrested and detained by members of the South African Police Services on 29
May 2004. On 15 June 2004 he was freed on bail. Nearly two years later, on
19 April 2006, De Witt’s attorneys sent a letter to the Minister advising of his
intention to sue for wrongful arrest and detention. On 29 May 2006 the
National Commissioner of Police rejected the notice since it was not sent

4 (153/ 2007) [2008] ZASCA 34 (28 March 2008) 2008 (4) SA 312 (SCA).

within six months of the date on which the debt became due (s 3(2)(a)).  On 6
February 2007 De Witt and the two men with whom he was arrested and held
issued a summons on the Minister claiming damages. The summons was
served a week later, on 13 February 2007. It is not disputed that the summons
was served before the debt had become prescribed under the Prescription Act
68 of 1969, being served within three years from the date of arrest and
detention.

[7] For some inexplicable reason the failure of one of the other two
plaintifffs to give timeous notice was ‘condoned’ by the Minister. De Witt,
however, met an objection to his summons, the Minister claiming in a special
plea that because no timeous notice had been served before the summons
was served, the claim had prescribed. He thus sought condonation of his
failure to send the notice timeously, and the Cape High Court granted it,
finding that it is open to a plaintiff to seek condonation for non-compliance
with s 3(2) after a summons has been served.

[8] We were referred to a number of decisions of the high courts in which
condonation in similar circumstances was granted.5 The only case of which I
am aware that has found that condonation cannot be granted after a
summons has been served, and when the case is pending, is that of a full

5 Catharina Dauth & others v Minister of  Safety and Security & others (per Lacock J) (case
729/2007 Northern Cape High Court, handed down on 23 May 2008); Shirley Marais v
Minister van Veiligheid  en ‘n ander (case 2727/2005 Free State High Court (per Van der
Merwe R) (delivered on 24 October 2006); and Schlebusch v Mohokare Plaaslike
Munisipalitiet (per Van Zyl R) (case 567/2005, delivered on 11 October 2007)

court of the Natal High Court in Legal Aid Board & others v Singh.6 I shall
return to the reasoning in that case briefly.

[9] The argument for the Minister is that decisions granting condonation
after summons has been served, and where no valid notice required in s 3(2)
has been given, do not have regard to the peremptory nature of the wording
of s 3(1). The section expressly refers to notice of intended legal proceedings,
and is peremptory: no legal proceedings may7 be instituted against an organ
of state unless the creditor has given notice in writing of his or her intention to
sue, or unless the organ of state has consented in writing to the institution of
legal proceedings without notice, or despite a defective notice. Second, s 3(2)
provides that the notice must be served on the organ of state within six
months from the date on which the debt became due. These peremptory
words, it is argued, have the consequence that condonation cannot be
granted unless a valid, timeous notice is served before a summons purporting
to interrupt prescription can be effective.

[10] In my view, the argument loses sight of the purpose of condonation: it
is to allow the action to proceed despite the fact that the peremptory
provisions of s 3(1) have not been complied with. Section 3 must be read as a
whole. First, it sets out the prerequisites for the institution of action against an
organ of state: either a written notice or consent by the organ of state to
dispense with the notice. Second, it states the requirements that must be met
in order for the notice to be valid. And third, it states what the creditor may do

6 Per Theron J, Kruger J and Radebe AJ concurring: case no 14939/05, handed down on 25
August 2008.
7 The Afrikaans text uses ‘kan’ instead of ‘mag’.

should he or she have failed to comply with the requirements of subsecs (1)
and (2): he or she may apply for condonation for the failure. Thus either a
complete failure to send a notice, or the sending of a defective notice, entitles
a creditor to make the application. Even this is qualified: it is only ‘if an organ
of state relies on a creditor’s failure to serve a notice’ that the creditor may
apply for condonation. If the organ of state makes no objection to the absence
of a notice, or a valid notice, then no condonation is required. In fact,
therefore, the objection of the organ of state is a jurisdictional fact for an
application for condonation, absent which the application would not be
competent.

[11] It follows that where no notice at all is given by the creditor, and the
organ of state relies on the failure, the creditor can nonetheless apply for
condonation. A fortiori, if the notice is sent out of time, condonation may be
granted. The argument that the application for condonation must precede the
issue and service of summons (and that if it does not the summons is
ineffective) is unpersuasive. It should also be borne in mind that where no
notice is given, the organ of state’s objection will in all likelihood only be made
for the first time after proceedings have been instituted.

[12] The very purpose of the provision allowing condonation is to give a court
a discretion to determine whether the organ of state can rely on non-
compliance, whatever form that may take. If this were not so, as was pointed
out by Somyalo AJ in Moise,8 the requirement of written notice as a

8 Above, para 13

precondition to the institution of legal proceedings would be in itself an
absolute bar to such proceedings and would constitute a real impediment to
the claimant’s access to court. Indeed, a blanket bar to the amelioration by a
court of the hardship worked by an inflexible precondition to the institution of
proceedings could hardly survive constitutional scrutiny.

[13] The discretion may only be exercised, however, if the three criteria in s
3(4)(b) are met: that the debt has not been extinguished by prescription (at
issue in this case); that good cause exists for the creditor’s failure; and that
the organ of state has not been unduly prejudiced. The Minister does not rely
on either of the latter two criteria in this appeal.

[14] The conclusion that it is open to a creditor to apply for condonation
after instituting legal proceedings is borne out also by the definition of
‘creditor’ in the Act. A ‘creditor’ means a person who ‘intends to institute legal
proceedings’ or ‘who has instituted such proceedings’. The creditor who has
already instituted proceedings may thus apply for condonation if the organ of
state relies on the creditor’s failure to serve a valid notice before proceedings
are instituted.

[15] The counter argument to this conclusion is that s 3(4)(c) provides that if
an application for condonation is granted the ‘court may grant leave to
institute legal proceedings’. This suggests, it is argued, that condonation
cannot be granted after proceedings have already been instituted. The
argument carries no force, in my view. The application for condonation is just

that. It does not necessarily embody also an application for leave to institute
proceedings. But if it does, then clearly the court may grant such leave. If,
however, proceedings have already been instituted, as in this case, then there
is no need to provide that the court may grant leave. Expressly empowering a
court to grant leave to sue does not impliedly mean that one cannot sue
before applying for condonation.

[16] Further support for the view that complete non-compliance may be
condoned is to be found in the provision that the organ of state may in writing
consent to non-compliance (s 3(1)(b)). It would be extraordinary if the debtor
could in effect condone the creditor’s non-compliance, but not the court.

[17] In Legal Aid Board9 Theron J concluded that because section 3(1) is
couched in peremptory terms, a court has no power to condone a failure to
serve a notice prior to the creditor’s institution of action. Her finding that ‘The
court does not have the power to condone the institution of legal proceedings
in circumstances where the provisions of s 3(1) have not been complied with’
is in my view incorrect. It fails to take into account the purpose of condonation
which is to forgive non-compliance or faulty compliance provided that the
criteria in s 3(4)(b) are met, and does not accord with an earlier statement in
the judgment that s 3(4)(a) ‘confers upon the creditor the right to apply for
condonation of the failure to comply with the provisions of s 3(1).’10

9 Above para 10.
10 Para 9.

[18] Similarly, although the court below correctly found that condonation
should be granted to De Witt for his late service of notice, the court’s
statement that condonation cannot be granted where no notice at all is served
is incorrect. It is not consonant with the wording of s 3 or its purpose.

[19] Finally, the Minister argues that condonation cannot be sought after the
institution of proceedings because of the peremptory wording of s 5 of the Act.
The relevant parts of section 5 read:
‘5
Service of process

(1) (a) Any process by which any legal proceedings contemplated in section 3
(1) are instituted must be served in the manner prescribed by the rules of the court in
question for the service of process.
. . . . .

(2) No process referred to in subsection (1) may be served as contemplated
in that subsection before the expiry of a period of 30 days after the notice, where
applicable, has been served on the organ of state in terms of section 3 (2) (a) (my
emphasis).

(3) If any process referred to in subsection (1) has been served as
contemplated in that subsection before the expiry of the period referred to in
subsection (2), such process must be regarded as having been served on the first
day after the expiry of the said period.’

[20] In my view, s 5 applies only to the normal situation where notice has
been given timeously: the creditor must wait for 30 days before instituting
proceedings. Nothing in the section overrides the court’s power to condone

the failure to give notice at all, nor the giving of defective notice. Where
condonation is warranted s 5 simply does not apply.

[21] In the circumstances, I consider that because De Witt’s summons was
issued and served before the end of the prescriptive period, the court had a
discretion to condone De Witt’s late service of notice on the Minister after the
proceedings were instituted. Since it was not contended before us that De
Witt had not shown good cause for his delay, nor that the Minister was unduly
prejudiced, condonation was correctly granted by the court below.

[22] The appeal is dismissed with costs.

______________
C H Lewis
Judge of Appeal

Appearances:

For Appellant:

R C Hiemstra SC

Instructed by

The State Attorney Cape Town
The State Attorney Bloemfontein

For Respondent:

D L Van Der Merwe

Instructed by

Goussard Attorneys George

Matsepes Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

19 September 2008
STATUS: Immediate
Minister of Safety and Security v De Witt ( [2008] ZSCA
Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal

This appeal concerned the interpretation of s 3 of the Institution of Legal
Proceedings Against Certain Organs of State Act 40 of 2002 . The Act was
passed to make uniform the preconditions to instituting legal proceedings
against state bodies such as the Police Services. Previous legislation
regulating different state bodies had required notice to be given within
prescribed time limits, and had, in certain cases, shortened the prescription
period for debts owed by certain organs of state. Some of these provisions
had been held to be unconstitutional because of their inflexibility.

Section 3(1) of the Act now requires notice to be given within six months of
the date on which the cause of action against the organ of state arises. But s
3(4) allows a court to condone the failure to give notice.  Mr de Witt had been
arrested and detained by the police in May 2004. Two years later he gave

notice to the Minister of Safety and Security that he intended to sue for
wrongful arrest and detention. The Minister rejected the notice since it was out
of time. De Witt nonetheless instituted action against the Minister before the
three-year prescriptive period had elapsed. The Minister objected to the
proceedings on the basis that no notice as required had been given. De Witt
applied for condonation for the late service of notice.

The Cape High Court granted condonation. The Minister appealed on the
basis that condonation cannot be sought after proceedings have been
instituted. Today the Supreme Court of Appeal upheld the finding and
dismissed the appeal. It held that a court may condone failure to give notice,
or the giving of defective notice, after proceedings have been instituted
against an organ of state, subject to the preconditions set out in s 3(4)(b) –
that the debt has not been extinguished by prescription; that good cause for
the failure to give compliant notice exists; and that the organ of state was not
unreasonably prejudiced by the failure.

_________