Sizeka Iris Daniso and Others v Minister of Police

The three applicants were plaintiffs in a delictual action against the Minister of Police for damages arising from malicious arrest and detention (Claim A) and malicious prosecution (Claim B). The applicants were arrested on different dates in August and September 2017, and the criminal proceedings against them were terminated on 9 September 2019. Summons was issued on 21 August 2020 and served timeously. The respondent raised a special plea that the applicants had failed to comply with section 3(2)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act, No. 40 of 2002 (ILPACOSA) by not serving statutory notices within six months from the date their claims became due. The applicants sent statutory notices by registered mail on 2 March 2020 (though two notices were dated 3 March 2020 due to typographical error). The applicants brought an application for a declarator that they had complied with ILPACOSA or alternatively for condonation of non-compliance. They contended they only became aware they had claims when they consulted with their attorney on 20 February 2020, and therefore the debt only became due on that date.

• Whether the applicants complied with the notice requirements under section 3(1)(a) and 3(2)(a) of ILPACOSA
• When the debt 'became due' for purposes of the six-month notice period under section 3(2)(a) read with section 3(3)(a) of ILPACOSA
• Whether condonation should be granted under section 3(4) of ILPACOSA for late service of statutory notices
• Whether a typographical error in the date on two notices invalidated compliance with the notice requirements
• What is the appropriate costs order in an application for condonation under ILPACOSA

1. It is declared that the applicants have complied with the notice contemplated in terms of section 3(1)(a) of ILPACOSA in respect of both Claims A and B. 2. The applicants are granted leave to continue with the legal proceedings commenced under case no. 840/2020. 3. Each party shall be liable for their own costs of the application.

For purposes of section 3(2)(a) read with section 3(3)(a) of ILPACOSA, a debt is not 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, and a creditor must be regarded as having acquired such knowledge as soon as they could have acquired it by exercising reasonable care. Where a creditor only becomes aware through legal consultation that they have a claim at all, the six-month notice period runs from the date of obtaining that knowledge, not from the date of the wrongful act. Technical defects such as typographical errors in the date on statutory notices do not invalidate compliance where the substance of the requirement has been met (proper content, timeous dispatch and receipt) and no prejudice results. Applications under section 3(4) of ILPACOSA are for permission to enforce a right, not condonation for non-observance of court procedure, and this distinction is relevant to the approach to costs.

The court observed that the applicants' attorneys' correspondence with the State Attorney was unspecific and did not clearly articulate the basis for their position, giving nothing away about what non-compliance was at stake or why they believed the respondent was being unreasonable. The court noted that while it was technically unnecessary for the applicants to invoke section 3(4)(a) if the debt only became due on 20 February 2020, the declaratory order was nonetheless essential for certainty. The court expressed the view that it would have been equally satisfied to grant condonation for late notice in relation to Claim A on the basis that the requirements of section 3(4)(b)(i)-(iii) were met. The court commented that the State Attorney was obliged to perform due diligence in questioning the validity of notices and could not be expected to divine the applicants' case that the debt only arose upon legal consultation. The court also noted approvingly the dicta from Lakay regarding costs following the result in opposed ILPACOSA applications, though this was not determinative given the specific circumstances of costs being sought on a punitive scale.

This case provides important guidance on the interpretation and application of ILPACOSA, particularly section 3(3)(a) regarding when a debt "becomes due" for purposes of calculating the six-month notice period. The judgment confirms that the ILPACOSA clock only starts running when a creditor obtains knowledge (or could reasonably have obtained knowledge) that they have a claim, not necessarily when the wrongful act occurred. This is particularly significant for unsophisticated litigants who may not immediately realize they have legal claims. The case also clarifies the approach to costs in ILPACOSA applications, distinguishing them from ordinary condonation applications for non-compliance with court rules. It affirms that such applications are for enforcing a constitutional right of access to courts, and costs should not automatically be awarded against applicants even where some non-compliance occurred, provided the organ of state suffered no prejudice. The judgment also demonstrates a practical approach to technical defects (such as typographical errors in dates) where the substance of compliance has been achieved and no prejudice results.