Mabaso v National Commissioner of Police and Another

The appellant, Mr Timothy Mabaso, gave written notice in terms of s 3(1)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 to the National Commissioner of Police, indicating his intention to institute a damages claim against the Minister of Police for alleged assault by police officers following his arrest and detention on 20 February 2015. The notice was timeously served within six months and claimed R400 000 in damages. The police did not respond to the notice or subsequent correspondence demanding a decision on liability. Mabaso then applied to the Western Cape High Court for a declaratory order that the respondents were obliged to decide whether to accept, reject or settle the claim prior to litigation, alternatively seeking relief under PAJA to compel such a decision with reasons. The High Court dismissed the application. By the time the appeal was heard, summons had been issued and the action was being defended, rendering the dispute between the parties moot.

The appeal was dismissed. The order of the High Court was amended to read: ‘The application is dismissed with no order as to costs.’

The case authoritatively clarifies that s 3 of the Institution of Legal Proceedings Against Certain Organs of State Act does not impose a duty on organs of state to accept, reject or settle claims, or to provide reasons, prior to litigation. It limits the use of PAJA to compel responses to statutory notices and affirms that the notice requirement exists primarily for the benefit of the state, shaping how organs of state and litigants approach pre-litigation procedures in claims against the state.