Akhona Kosi v Minister of Police

The appellant was arrested without a warrant by members of the South African Police Service on 22 July 2022 at Tshatshu Location, King Williams Town. He was detained at Zwelitsha and King Williams Town Police Stations and released on 25 July 2022 without appearing in court. The appellant, a lay and unsophisticated person, believed the investigating officer or IPID would assist him with pursuing a claim. He consulted attorneys on 3 May 2023 who advised him correctly about his legal rights. A notice to institute legal proceedings was issued on 19 May 2023 and served on 22 May 2023, approximately 10 months after the arrest (4 months late). The appellant instituted action proceedings on 19 June 2023. The respondent raised a special plea of non-compliance with section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, which requires service within 6 months. The appellant applied for condonation of the late service on 20 November 2023. The Zwelitsha Magistrate's Court dismissed the application on 13 March 2024, finding the explanation insufficient and that the appellant had not demonstrated prospects of success.

• Whether the appellant provided sufficient explanation for the delay in serving the notice to institute legal proceedings required by section 3(1)(a) of Act 40 of 2002
• Whether the appellant demonstrated good prospects of success in the main action for unlawful arrest and detention
• Whether the appellant's laymanship and unsophistication constitute sufficient reasons for the delay
• What test should be applied when considering condonation applications under section 3(4) of Act 40 of 2002
• Where the onus lies in cases of alleged unlawful arrest and detention

The appeal was upheld with costs, including costs of two counsel where employed. The order of the Magistrate's Court was set aside and replaced with an order: (a) condoning the late service of the appellant's notice in terms of section 3(1)(a) of Act 40 of 2002; and (b) ordering the respondent to pay costs of the application, including costs of two counsel where employed.

The binding legal principles established are: (1) When assessing condonation for late service of notice under section 3(4) of Act 40 of 2002, courts must properly consider an applicant's laymanship and unsophistication as weighty factors in determining whether the explanation for delay is sufficient, particularly where the delay relates to ignorance of legal requirements. (2) A lay and unsophisticated person cannot reasonably be expected to know the intricate legal requirements of section 3 of Act 40 of 2002 without legal assistance, and their ignorance, inexperience, and naiveté can reasonably lead to beliefs that state authorities (SAPS or IPID) would follow up on their complaints. (3) It is sufficient for a plaintiff to simply plead that they were unlawfully arrested and detained; once this is pleaded and the fact of arrest/detention is established or admitted, the onus shifts to the defendant (state) to justify the deprivation of liberty. (4) The legal purpose of arrest is to bring a person to trial or justice, and where this purpose is not fulfilled (such as when a person is released without appearing in court), the arresting authorities bear the burden of explaining their conduct. (5) In the absence of prejudice to the respondent, technical procedural objections should not be permitted to prevent cases from being decided on their merits.

The court made several non-binding observations: (1) It quoted with approval the principle that police excesses that lead to breaches of the peace should not be allowed lightly. (2) It emphasized that there is a higher duty on the State to respect the law, fulfil procedural requirements, and tread carefully when dealing with rights. (3) The court noted approvingly the principle that the function of public servants is to serve the public and they must not be coy or play fast and loose with the truth, but rather must take the court into their confidence and fully explain facts so informed decisions can be taken in the interests of the public and good governance. (4) The court observed that members of SAPS, like all organs of state, have a constitutional duty under section 165(4) to assist and protect courts to ensure their effectiveness. (5) On costs in condonation applications, the court noted that while costs generally follow the result, this principle applies with full force where an application for condonation under section 3(4) is opposed, as the applicant is seeking permission to enforce a right within prescribed statutory parameters, not merely an indulgence.

This judgment is significant in South African law for several reasons: (1) It clarifies the approach courts should take when assessing condonation applications under section 3(4) of Act 40 of 2002, emphasizing that a fair mind must be brought to the facts and proof on a balance of probabilities is not required. (2) It affirms the importance of considering an applicant's laymanship and lack of sophistication when assessing the reasonableness of their explanation for delay, particularly regarding knowledge of legal requirements and procedures. (3) It reinforces the well-established principle that interference with physical liberty is prima facie unlawful and that once unlawful arrest and detention are pleaded, the onus shifts to the state to justify the deprivation. (4) It emphasizes that technical objections to procedural steps should not be permitted, in the absence of prejudice, to interfere with deciding cases on their merits. (5) It reiterates the constitutional duty on state officials to act lawfully, assist courts, and not frustrate the enforcement of constitutional rights, particularly the right to freedom and security under section 12 of the Constitution. (6) The case serves as a reminder that the purpose of arrest is to bring a person to trial or justice, and failure to achieve this purpose must be explained by the arresting authorities.