THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

REPORTABLE
Case no:  153/07

In the matter between

THEMBELA MADINDA

APPELLANT

and

MINISTER OF SAFETY AND SECURITY OF
THE REPUBLIC OF SOUTH AFRICA

RESPONDENT

Coram:
NAVSA, MTHIYANE AND HEHER JJA

Heard:
18 MARCH 2008
Delivered: 28 MARCH 2008
Summary: Prescription – limitation of actions – Institution of Legal
Proceedings against certain Organs of State Act 40 of 2002 ss 3(1) and (2) – legal
proceedings against SAPS – failure to give notice of intention to institute such
proceedings within 6 months of date when debt became due – application for
condonation under s 4 – ‘good cause’ and ‘absence of unreasonable prejudice’ –
additional delays unrelated to failure to give timeous notice.

Neutral citation: This judgment may be referred to as Madinda v Minister of
Safety and Security (153/2007) [2008] ZASCA 34 (28 March 2008).

____________________________________________________________________

HEHER JA

HEHER JA:
[1] The appellant is an unemployed woman, aged 32 years, who resides in
Grahamstown. In July 2006 she applied to the High Court for an order in terms of s
3(4) of the Institution of Legal Proceedings against certain Organs of State Act 40 of
2002. She sought condonation of her failure to serve a notice of intention to bring
legal proceedings against the respondent Minister within the period specified in s
3(2)(a) of the Act. The Minister opposed the application.

[2] The legislation is relatively recent and has not been the subject of much judicial
consideration. Section 3 may conveniently be quoted in full:
‘
(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
proceeding[s]─

(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.’

[3] On 26 October 2006 Van der Byl AJ refused the application with costs. He
found that the appellant had not shown good cause for not giving notice timeously.
Nor, it appears, was the learned judge persuaded that SAPS was not unreasonably
prejudiced by the failure. A substantial part of the delay could only be explained by
what he described as ‘complete disinterest in the conduct of her case’ and her
consequent failure to maintain contact with her attorney from May 2005 until 7 July
2006.

[4] The learned judge refused an application for leave to appeal. This Court,
however, granted the appellant such leave.

[5] The appellant’s intended cause of action was a claim for damages arising from
unlawful arrest, detention and assault allegedly perpetrated on her by unidentified
members of the SAPS during the night of Saturday, 11 September 2004. The period
of six months afforded a plaintiff by s 3(2)(a) of the Act would, in the absence of
factors relevant by reason of s 3(3)(a), probably have ended at midnight on 11 March

2005. The statutory notice was sent from Grahamstown to the National
Commissioner in Pretoria by registered post on 19 August 2005. Receipt was
acknowledged (and rejected as not complying with the requirements of s 3(2)(a) of
the Act) in a letter dated 31 October 2005. Section 4(1) of the Act requires such a
notice to be served on the organ by delivering it by hand or by sending it by certified
mail or (subject to s 4(2)) by sending it by electronic mail or transmitting it by
facsimile. Section 7 of the Interpretation Act 33 of 1957 provides that
‘Where any law authorises or requires any document to be served by post, whether the expression
“serve”, or “give”, or “send”, or any other expression is used, then unless the contrary intention
appears, the service shall be deemed to be effected by properly addressing, preparing, and posting a
registered letter containing the document, and, unless the contrary is proved, to have been effected
at the time at which the letter would be delivered in the ordinary course of post.’
I shall assume for present purposes, there being no evidence to the contrary, that there
is no material difference between registered and certified post. If one allows one week
for delivery of post sent from Grahamstown to Pretoria, ie by 26 August 2005, the
notice was about 5½ months outside the prescribed time.

[6] Section 3(4)(b) circumscribes a court’s power to grant condonation by
requiring that it be satisfied that
i)
the debt has not been extinguished by prescription;
ii)
good cause exists for the failure by the creditor, ie to serve the statutory notice
according to s 3(2)(a) or to serve a notice that complies with the prescriptions of s
3(2)(b); and
iii)
the organ of state was not unreasonably prejudiced by the failure.

[7] The Act is an omnibus statute which as the preamble states is intended ‘to
regulate the prescription and harmonise the periods of prescription of debts for which
certain organs of state are liable; to make provision for notice requirements in
connection with the institution of legal proceedings against certain organs of state in

respect of the recovery of debt’. Thus, it brings together and rationalises under one
statutory umbrella provisions which were previously scattered through many statutes.
(These are identified in the schedule of laws amended and repealed.) The relevant
repealed provision in this case was s 57 of the South African Police Services Act, 68
of 1995. That, in turn, was the successor to other provisions limiting actions against
the SAPS which have, from time to time, received consideration by the courts. Such
provisions have been held to be in favour of the police who should accordingly, in so
far as the language permits, receive the protection offered by the section without
imposing an unnecessarily heavy burden on a plaintiff: Minister van Wet en Orde v
Hendricks 1987 (3) SA 657 (A) at 662E-663G. See also Hartman v Minister van
Polisie 1983 (2) SA 489 (A) at 497H-498C; Mohlomi v Minister of Defence 1997 (1)
SA 124 (CC) at para 9. Previously, s 57(5) of the 1995 Act permitted a court to
dispense with an equivalent notice of intention to commence proceedings ‘where the
interests of justice so require’, as to which see Mugwena v Minister of Safety and
Security 2006 (4) SA 150 (SCA) at 155B-C. Before 1995 there was no power of
condonation, a situation deemed to be unconstitutional in relation to analogous
limitation provisions under the Defence Act 44 of 1957 in Mohlomi’s case.

[8] The phrase ‘if [the court] is satisfied’ in s 3(4)(b) has long been recognised as
setting a standard which is not proof on a balance of probability. Rather it is the
overall impression made on a court which brings a fair mind to the facts set up by the
parties. See eg Die Afrikaanse Pers Beperk v Neser 1948 (2) SA 295 (C) at 297. I see
no reason to place a stricter construction on it in the present context.

[9] The first requirement speaks for itself: the court must be satisfied that the
applicant relies on an extant cause of action. That this is so in the present instance has
never been in dispute.

[10] The second requirement is a variant of one well known in cases of procedural
non-compliance. See Torwood Properties (Pty) Ltd v South African Reserve Bank
1996 (1) SA 215 (W) at 227I-228F and the cases there cited. ‘Good cause’ looks at all
those factors which bear on the fairness of granting the relief as between the parties
and as affecting the proper administration of justice. In any given factual complex it
may be that only some of many such possible factors become relevant. These may
include prospects of success in the proposed action, the reasons for the delay, the
sufficiency of the explanation offered, the bona fides of the applicant, and any
contribution by other persons or parties to the delay and the applicant’s responsibility
therefor.

[11] In Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) Schreiner JA said
(at 352H-353A):
‘The meaning of “good cause” in the present sub-rule, like that of the practically synonymous
expression “sufficient cause” which was considered by this Court in Cairn’s Executors v Gaarn,
1912 A.D. 181, should not lightly be made the subject of further definition. For to do so may
inconveniently interfere with the application of the provision to cases not at present in
contemplation. There are many decisions in which the same or similar expressions have been
applied in the granting or refusal of different kinds of procedural relief. It is enough for present
purposes to say that the defendant must at least furnish an explanation of his default sufficiently full
to enable the Court to understand how it really came about, and to assess his conduct and motives.’
Although this passage relates to a different legislative context (viz Rule 46(5) of the
Magistrates’ Courts rules) I am of the view that it holds good for the interpretation of
s 3(4)(b)(ii).

[12] ‘Good cause’ usually comprehends the prospects of success on the merits of a
case, for obvious reasons: Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) at
765D-E. But, as counsel for the respondent stressed, whether that is the case must
depend on the terms of the statute in which it is found. In s 3(4)(b)(ii), there is a

specific link created between the delay and the ‘good cause’. According to counsel’s
submission, no matter how strong an applicant’s case on the merits that consideration
cannot be causally tied to the reasons for the delay; the effect is that the merits can be
taken into account only if and when the court has been satisfied and comes to
exercising the discretion to condone. I do not agree. ‘Good cause for the delay’ is not
simply a mechanical matter of cause and effect. 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. Strong merits may mitigate fault; no merits may render
mitigation pointless.  There are two main elements at play in s 4(b), viz the subject’s
right to have the merits of his case tried by a court of law and the right of an organ of
state not to be unduly prejudiced by delay beyond the statutorily prescribed limit for
the giving of notice. Subparagraph (iii) calls for the court to be satisfied as to the
latter. Logically, subparagraph (ii) is directed, at least in part, to whether the subject
should be denied a trial on the merits. If it were not so, consideration of prospects of
success could be entirely excluded from the equation on the ground that failure to
satisfy the court of the existence of good cause precluded the court from exercising its
discretion to condone. That would require an unbalanced approach to the two
elements and could hardly favour the interests of justice. Moreover, what can be
achieved by putting the court to the task of exercising a discretion to condone if there
is no prospect of success? In addition, that the merits are shown to be strong or weak
may colour an applicant’s explanation for conduct which bears on the delay: an
applicant with an overwhelming case is hardly likely to be careless in pursuing his or
her interest, while one with little hope of success can easily be understood to drag his
or her heels. As I interpret the requirement of good cause for the delay, the prospects
of success are a relevant consideration. The learned judge a quo misdirected himself
in ignoring  them.

[13] The relevant circumstances must be assessed in a balanced fashion. The fact
that the applicant is strong in certain respects and weak in others will be borne in
mind in the evaluation of whether the standard of good cause has been achieved.

[14] 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. Whether a proper explanation is furnished for delays that did not contribute to
the failure is part of the exercise of  the discretion to condone in terms of s 3(4), but it
is not, in this statutory context, an element of ‘good cause’. This is a distinction which
the learned judge did not draw or maintain and I think he was wrong not to do so.

[15] Absence of prejudice has often been regarded as an element of good cause in
the context of earlier legislation. It was, no doubt, also an element in determining
where the interests of justice lay in the terms of s 57 of Act 68 of 1995. But in this
Act the legislature has deemed it appropriate to treat absence of unreasonable
prejudice as a specific factor of which an applicant must satisfy the court. The
identification of separate requirements of good cause and absence of unreasonable
prejudice may be intended to emphasise the need to give due weight to both the
individual’s right of access to justice and the protection of state interest in receiving
timeous and adequate notice.

[16] The structure of s 3(4) is now such that the court must be satisfied that all three
requirements have  been met. Once it is so satisfied the discretion to condone operates
according to the established principles in such matters, as to which see eg United
Plant Hire (Pty) Ltd v Hills 1976 (1) SA 717 (A) at 720E-G.

[17] Approaching the matter according to the structure as I have explained it the

present case resolves itself without difficulty according to its own facts.
[18] As to good cause─
18.1 the appellant set up a prima facie case of assault, unlawful arrest and unlawful
detention (which perhaps overlaps with kidnapping) against the policemen involved.
Although the strength of the case is not decisive, an examination of all the statements
from the docket taken at face value leaves serious questions unexplained about how
and when the appellant could have sustained her injuries other than during the time
which she spent in the police vehicle alone with sgt Kebe and const Gabriel. On this
basis I would evaluate the prima facie case against the policemen concerned as
strong. Her fundamental right is to have her oral evidence and that of her supporting
witnesses evaluated in a fair trial against any admissible opposing testimony that the
defence can produce.
18.2 A factor which is to be considered is that she used the first available
opportunity to assert her determination to see justice done when, on her return home
on the night of 11 September 2004 and despite her parlous physical condition, she
wrote on a piece of paper that the police had assaulted her, enabling her sister to lay a
complaint on her behalf.
18.3 The matter was obviously of importance to her. During the morning of 12
September two police officers arrived with her sister. After her admission to hospital
a police photographer took photographs of her injured face. She stated on oath that
she believed the steps taken on her behalf and by the police would lead to the State
investigating and following up her complaint and claiming damages for her. The
learned judge a quo was dismissive of such a belief:
‘[I]t is in my view unimaginable that any member of the public, no matter his or her illiteracy or
social handicap (of which, incidentally, no information is offered in her founding affidavit), can
ever be under the impression that the police would claim damages on her behalf’.
I do not share that view. Ignorance, inexperience, naivete, and simple lack of
intelligence, individually or in any combination, could it seems to me, conduce to a

reasonable belief that, once a complaint has been laid, the State, with the resources
at its disposal, and as what she described in her reply as ‘the primary agent for the
protection and enforcement of . . . legal rights’, will follow it up; cf Mugwena’s case,
above, at 155H-156E. Indeed there is a provision in the Criminal Procedure Act (s
300(1)) which enables a court to make a compensatory order having the effect of a
civil judgment, so that her belief finds some basis in law as well.
18.4 The appellant was unaware of the requirement of  notice until she approached
an attorney during May 2005, some two months after the statutory period expired.
She was first led to seek help because she saw no apparent progress in the
investigation of her claim. It is significant that her initial reaction was to visit her
local police station to find out what was happening. There she was advised that the
police only investigate complaints with a view to criminal prosecution and that if she
wanted to claim damages she should consult an attorney immediately. She followed
that advice. The overall impression that her affidavit creates is that, despite a long
initial period of physical debility, she at all times harboured a genuine grievance
which she pursued according to a limited comprehension of what was necessary in
order to enforce her legal rights. The fact that, from her final discharge from hospital
in December 2004 until early May 2005, she waited in ill-founded anticipation and
inactivity for some progress in the matter, even if it be a matter for mild
disapprobation, is not sufficient to negate her genuine intention to pursue her claim.
18.5 All in all it seems to me that prospects of success and her explanation for the
initial delay both tend in favour of the appellant.
18.6 The learned judge held against the applicant the delay between May 2005 and
the sending of the notice in August. The uncontested events are as follows:
(a)
During May attorney Dullabh was told of appellant’s desire to claim damages
from the police. She asked him to ascertain what was going on with the investigation.
(b)
Dullabh told her that notice of a civil claim had to be given within 6 months
and that it might be necessary to apply to court, but he needed to obtain a copy of the

investigation docket and the appellant’s medical records in order to assess the
merits and the amount of the claim.
(c)
In July 2005, when Dullabh received these, he called the appellant to a
consultation. He told her a decision had been taken in April 2005 not to prosecute the
officers involved, but that he assessed the prospects of success in a civil action against
the state as reasonable.
(d)
The appellant informed Dullabh that she was still experiencing difficulties with
her jaw and pain in chewing. He told her that, in due course, further medical
examinations would be necessary.
(e)
The appellant instructed Dullabh to send the statutory notice. As we know that
was only sent on 19 August. There is no explanation for the delay of about a month
and a half in this regard.

[19] The summary in the preceding paragraph shows that the appellant consulted an
attorney as soon as could reasonably be expected, given her misconception, and,
having done so, reacted expeditiously and in good faith on his advice. Mr Dullabh
furnished a rational explanation to her for not immediately sending the notice (that
someone else might have acted first and sought information afterwards does not
render it less rational), an explanation which she could not have been expected to
debate with him. Prudence before embarking on a process which may lead to heavy
costs in litigation is to be commended unless the consequences of delay are likely to
damage one’s client’s prospects. I do not think Mr Dullabh had reason to think that he
would be criticised for being careful. The unexplained period (which must lie in the
peculiar knowledge of her attorney) is not of such a degree of seriousness as to
shipwreck her otherwise sound reliance on good cause.

[20] It is also true that, although her attorney received the rejection of the notice in
the middle of October 2005, the appellant did not commence proceedings for

condonation until July 2006. As I have earlier pointed out, unexplained delay which
relates to the period after the notice was de facto  given will ordinarily relate not to
the establishment of good cause but to condonation. The learned judge erred in his
approach in this regard. Nor do I think that such delay can fairly be ascribed to
disinterest on the appellant’s part.

[21] The third leg of s 3(4)(b) required the appellant to satisfy the court that the
respondent had not been unreasonably prejudiced by the failure to serve the notice
timeously. This must inevitably depend on the most probable inference to be drawn
from the facts which are to be regarded as proved in the context of the motion
proceedings launched by an applicant. The approach to the existence of unreasonable
prejudice (not simply any level of prejudice, an aspect which the judgment of the
court a quo blurs) requires a common sense analysis of the facts, bearing in mind that
whether the grounds of prejudice exist often lies peculiarly within the knowledge of
the respondent. Although the onus is on an applicant to bring the application within
the terms of the statute, a court should be slow to assume prejudice for which the
respondent itself does not lay a basis.

[22] The approach of the court a quo in this regard was inconsistent. Early in his
judgment the learned judge noted that ‘it was not seriously contended on behalf of the
respondent that the SAPS was prejudiced by the applicant’s delay’. Despite this he
concluded that the question of prejudice was not a requirement which could be
ignored ‘in the circumstances of this matter’. He relied in this regard on a passage in
CIR v Pick ‘n Pay Wholesalers (Pty) Ltd 1987(3) SA 453 (A) at 469F-G:
‘Human memory is inherently and notoriously liable to error. One knows that people are less likely
to be complete and accurate in their accounts after a long interval than after a short one. It is a
matter of common experience that, during the stage of retention or storage in the memory, perceived
information may be forgotten or it may be modified, or added to, or distorted by subsequent

information. One is aware too that there can occur a process of unconscious reconstruction.’
But that passage dealt with the fallibility of human recollection in giving evidence
long after the event. The case before the judge related to statutory notice of the cause
of action. The appellant had the same rights as any other litigant in relation to when
she issued summons in the matter: she had to do so before her claim prescribed and
the action once instituted would be subject to the usual hazards of litigation including
systemic and other delays. Reliance on delay in bringing an action to trial was thus
irrelevant to the appellant’s default. Likewise, the learned judge’s reliance on
Hartman’s case, above, at 497F-498A was misplaced. Further evidence of such
confusion appears from the following statement in the judgment:
‘Although the investigation in this matter seems to have been completed on 19 October 2004 when
a so-called “warning statement” had been taken from the second of the police officials who was
allegedly involved in the alleged unlawful arrest and assault of the Applicant, it does not necessarily
mean that the Respondent it is and will not be prejudiced by any delay to give the prescribed notice
and to timeously institute the intended action.’ [Emphasis added]

[23] The learned judge continued:
‘In this regard one should have regard to the difficulties which are experienced when witnesses are
confronted with the contents of their police statements (S v Govender and Others 2006 (1) SACR
322 (E)) since, inter alia, police statements are, as a matter of common experience, frequently not
taken with the degree of care, accuracy and completeness which is desirable (S v Xaba 1983 (3) SA
717 (A) at 730B-C) and the purpose of a police statement is to obtain details of an offence so that a
decision can be made whether or not to institute a prosecution, and the statement of a witness is not
intended to be a precursor to that witness’s evidence in court (S v Bruiners en’n Ander 1998 (2)
SACR 432 (SE) at 437h). There is accordingly no assurance that the fallibility of human memory
after the elapse of time will, especially if one bears in mind that police officers are in the course of
various policing duties involved in arrests of thousands of persons, fade when the finer details of a
particular incident that occurred two or more years earlier are canvassed in in-depth questioning.’
However, reference to the inadequacy of police statements hardly seems appropriate
when a court is confronted by an application for condonation for failure to file the

statutory notice within six months, and the evidence shows that all statements were
procured timeously and were directed to ascertaining whether the complaint was well-
founded.
[24] In summary, the learned judge misdirected himself both as to the existence of
unreasonable prejudice and as to its relevance in the context of the application before
him. In argument before us counsel for the respondent did not contend otherwise.

[25] Approaching the question anew, unaffected by the misdirections, I am
persuaded that the appellant achieved the standard set in relation to s 3(4)(b)(iii). The
facts of the matter before the learned judge were the following:
1.
The assault was reported to the police on the night of the alleged happening;
2.
On 13 September 2004 one Yamiso, a friend of the complainant who was in her
company until her ‘arrest’, made an affidavit.
3.
A confirming affidavit was taken from a policeman, sgt Ngqele (to whom
Yamiso reported the complaint) on 13 September.
4.
On 13 September the appellant was photographed in the Settlers Hospital by a
police inspector as part of the investigation into the complaint and he made a
statement concerning his observations on 29 September.
5.
On 15 September a sworn statement was taken from an eyewitness to certain of
the events, Ms Sipokazi Moni, who had also been in the company of the complainant
until the latter’s ‘arrest’.
6.
There is also the first page of a statement by the appellant which, although
bearing no date, seems to have been written by the same person who took Moni’s
statement on 15 September.
7.
A warning statement was taken from one of the two ‘suspects’, const Gabriel,
on 19 October in which he set out his participation in the events in some detail.
8.
There is the first page (undated) of a statement made by the second ‘suspect’,
sgt Kebe, containing a version which purports to excludes the possibility of the

complainant having suffered the injuries while in police custody. It would appear
from the numbering on this document (A8) that it was probably made at some time
before the statement of Bergh (A9).
9.
An affidavit was obtained from an alleged independent eyewitness, Mr Eugene
Bergh, on 8 April 2005. (It appears from the docket that it was on the strength of this
statement that the prosecutor declined to prosecute.) In it he denies seeing any assault
by const Gabriel or sgt Kebe up to the complainant’s removal in the police vehicle.
What of course is significant in that regard is the necessary inference that the
complainant’s serious injuries were most probably sustained after she was taken
away, a matter which, in itself, one might have thought, justified a prosecution.

[26] In regard to the foregoing one may fairly infer that by no later than 8 April
2005 the applicant’s complaint had been fully investigated and statements taken from
all persons whom the investigating officer regarded as material. Taking all the
circumstances into account it is clear that the learned judge should have been satisfied
that the SAPS was not unreasonably prejudiced by the failure to serve the notice
timeously.

[27] The question then arises as to whether condonation should have been granted.
We are by reason of the misdirections entitled to reconsider this question.

[28] By October 2005 the Commissioner had taken an unequivocal stand against
recognizing the notice. But it is clear that the applicant’s attorney did not leave the
matter there, since on 12 January 2006 the State Attorney wrote tersely to him
‘We regret to advise that our instructions from client are to consider the provisions of section
3(2)(a) of Act 40 of 2002.’
Having regard to the provisions of s 3(1)(b) Mr Dullabh was certainly justified in
asking that the State abandon reliance on s 3(2)(a). But when he received that reply it

must have been clear that all hope of concession was past. It was the delay
thereafter until July 2006 which he should have explained but did not. Applications
for condonation should in general be brought as soon after the default as possible.
Thereby possible further prejudice to the other party and misconception as to the
intentions and bona fides of the applicant can be lessened. A delay in making the
application should be fully explained. The failure to do so may adversely affect
condonation or it may merely be a reason to censure the applicant or his or her legal
advisers without lessening the force of the application. I think that the latter is the
correct attitude to take in the present matter in relation to the evaluation of whether
condonation should be granted. Under the present statutory dispensation there is no
time limitation on the institution of action and the appellant had until September 2007
(when her claim would have prescribed) to issue summons. The matter was clearly
very much alive during the first half of 2006 and the State had no reason to think
otherwise. Nor has the respondent suggested that it was prejudiced or misled by the
additional delay.

[29] One is now in a position to assess the combined weight to be attributed to the
three elements of s 3(4)(b)(i) (ii) and (iii) which were established, in the context of
the discretion to grant or refuse condonation. Given the absence of unreasonable
prejudice to the SAPS from the equation and the persuasive, though not flawless,
reliance on good cause, no court exercising a discretion unaffected by the
misdirections which tainted the assessment of the trial judge, would have deprived the
appellant of the opportunity to have her claim tested according to the dictates of law
and justice. Condonation should therefore have been granted. It follows that the
appeal must succeed.

[30] Moreover, the refusal of the Commissioner and the State Attorney to accede to
the request to forego reliance on s 3(2)(a) of the Act and the respondent’s opposition

to the application were not only unwarranted but also unreasonable. The respondent
should therefore pay the costs occasioned by the application. It was common cause
between the parties that the matter was of sufficient magnitude to warrant the
attentions of senior and junior counsel.
[31] The following order is made:
1.
The appeal is upheld with costs including the costs consequent upon the
employment of two counsel.
2.
The order of the court a quo is set aside and replaced with the following:

‘(a)
Condonation is granted  for the applicant’s failure to serve the notice
contemplated in section 3(1)(a) of the Institution of Legal Proceedings against certain
Organs of State Act 40 of 2002 within the period laid down in section 3(2)(a) of the
Act.
(b)
The respondent is to pay the costs of the application including the costs
consequent upon the employment of two counsel’.

__________________
J A   HEHER

JUDGE OF APPEAL

NAVSA JA
)Concur
MTHIYANE JA )