Akhona Kosi v Minister of Police

The appellant instituted action in the Zwelitsha Magistrate’s Court for damages arising from his alleged unlawful arrest and detention by members of the South African Police Service on 22 July 2022. He was detained until 25 July 2022 and released without appearing in court. A statutory notice in terms of section 3(1)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 was only served on 22 May 2023, outside the six-month period. The respondent raised a special plea of non-compliance. The appellant then applied for condonation under section 3(4) of the Act, explaining the delay on the basis that he was a lay and unsophisticated person who believed the police or IPID would pursue the matter. The magistrate dismissed the condonation application. The appellant appealed to the High Court.

The appeal was upheld with costs, including costs of two counsel. The magistrate’s order was set aside and replaced with an order condoning the late service of the section 3 notice. The respondent was ordered to pay the costs of the condonation application in the court a quo.

The judgment reaffirms a flexible, justice-oriented approach to condonation under section 3(4) of Act 40 of 2002, especially where litigants are lay and unsophisticated. It confirms that in unlawful arrest and detention claims, a claimant need only allege deprivation of liberty, with the burden resting on the police to justify it. The case underscores the constitutional duty of organs of state, particularly the police, to act lawfully and assist courts in the vindication of fundamental rights.