Sphere v Minister of Police (Appeal) (A211/25) [2025] ZAWCHC 605 (12 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: Western Cape High Court, Cape Town South Africa: Western Cape High Court, Cape Town You are here: SAFLII >> Databases >> South Africa: Western Cape High Court, Cape Town >> 2025 >> [2025] ZAWCHC 605 | Noteup | LawCite sino index ## Sphere v Minister of Police (Appeal) (A211/25) [2025] ZAWCHC 605 (12 December 2025) Sphere v Minister of Police (Appeal) (A211/25) [2025] ZAWCHC 605 (12 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAWCHC/Data/2025_605.html sino date 12 December 2025 IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE DIVISION, CAPE TOWN) Not Reportable Appeal Case No: A211/25 In the matter between: ALETHA SPHERE                                                                              Appellant And MINISTER OF POLICE                                                                       First Respondent DIRECTOR OF PUBLIC PROSECUTION                                          Second Respondent Neutral citation: Coram        : Pangarker J and Mgengwana AJ Heard :         24 October 2025 Delivered :         12 December 2025 Summary: Appeal – Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 – Failure to comply with Section 3(1) and Section 3(2) - Condonation - Section 3(4) - Failure to comply with section 3(4)(b)(ii) and (iii). Judgment handed down: This judgment is handed down electronically by circulating to the parties or legal representatives by email.  The date for the handing down of the judgment is deemed to be 12 December 2025. ORDER 1. The appeal is upheld with costs. 2. The order of the Cape Town Regional Court is set aside and substituted with the following order: The application for condonation is granted with costs. JUDGMENT MGENGWANA, AJ (PANGARKER, J concurring) Introduction [1] This is an appeal against the Cape Town’s Civil Regional Court’s decision to dismiss a condonation application made by the Appellant in terms of Section 3(4)(b) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 (“the Act”) through a judgment dated 11 July 2025. Chronological background to the application for condonation [2]     On 10 July 2023 the Applicant was allegedly wrongfully and unlawfully arrested by members of the South African Police Services, Milnerton, without a warrant. She was then released on bail on 11 July 2023 as her bail was not opposed. [3]     On 11 September 2024 the Applicant, through her attorneys, addressed a letter of demand to the Minister of Police (“the Minister”) in terms of Section 3(1) read with section (2) of the Act (“the notice”). [4]     Thereafter,  she then caused a Combined Summons to be served on the First Respondent on 17 October 2024 to which the latter’s attorneys, on 15 January 2025, raised a Special Plea of non-compliance with Section 3(1) read together with Section 3(2) of the Act. [5]     The Applicant then delivered a condonation application on 13 February 2025 which was opposed by the First Respondent. [6]     This opposed application was heard on 26 May 2025 and the Regional Magistrate delivered her judgment on 11 July 2025. It is this judgment which forms the subject of this appeal. Findings of the court a quo in the condonation application [7]     The learned Regional Magistrate made the following findings: [7.1] The cause of action which is the subject of the action against the First Respondent arose on 11 July 2023 which is the day after the appellant’s arrest. [7.2] The notice ought to have been served by 11 January 2024. It was only served on 13 June 2024, some five months out of time. [7.3] No explanation was furnished by the Applicant for the lengthy delay. There is also no affidavit from her legal representatives detailing when they were instructed or how the matter progressed. Accordingly, the Appellant (Applicant in the condonation application) failed to establish good cause as contemplated in section 3(4)(b)(ii) of the Act. [7.4] While no specific prejudice was proved by the Respondents, the   courts have recognized that delay inherently prejudices organs of State. [7.5] In view of the Applicant’s failure to satisfy the good cause requirement, it was not necessary to make a final finding on the issue of prejudice. [8]     In her judgment on condonation, the Regional Magistrate held as follows: “ No satisfactory explanation has been provided for the delay. In the absence of a detailed account for the delay and supporting evidence, the Applicant has not discharged the onus of establishing good cause. The Applicant therefore failed to make out a proper case for the relief sought in respect of both matter in terms of which the application has been brought. The Application for condonation therefore stands to be dismissed.” “ Having considered the facts and the legal framework, the Court finds as follows: [1] The debt became due by no later than 11 July 2023. The notice to institute proceedings was delivered on 13 June 2024, (This is factually incorrect, evidence in the court file confirms that the notice was delivered on 11 September 2024.) more than five months out of time. The Applicant’s notice was thus not served within the six-month period contemplated in section 3(2)(a) of the Act. [2]     The Applicant has failed to provide any adequate explanation for the delay and has not established good cause. [3]     The remaining requirements in section 3(4)(b) do not cure the absence of good cause.” [1] “ While no specific prejudice has been proved by the Respondents, the courts have recognized that delay inherently prejudices organs of state. In Mohlomi v Minister of Defence 2002 (3) SA 316 (SCA), the Court observed that compliance with time limits is necessary for efficient litigation and institutional memory. In view of the Applicant’s failure to satisfy the good cause requirement, it is not necessary to make a final finding on the issue of prejudice.” [2] Grounds of appeal [9]     The grounds of appeal advanced by the Appellant are as follows: [9.1] The Regional Magistrate misdirected herself by failing to properly consider the pleadings holistically before her. [9.2] She misdirected herself by conflating the facts and legal issues to be decided which resulted in a miscarriage of Justice of both matters. [9.3] She erred and misdirected herself by her failure to consider the pleadings and relied merely on the Respondents’ oral submissions, and she failed to properly apply the law. [9.4] Furthermore, the Regional Magistrate erred and misdirected herself by her failure to provide cogent and coherent reasons for her judgment, including omitting to consider authorities drawn to her attention and/or why they were distinguishable. Issues for determination [10]   From this Court’s reading of both the Court a quo’s judgment and Notice of Appeal and having considered the arguments on appeal, it is apparent that we are called upon to make a determination on the grounds of appeal, and this would entail a consideration of the Regional Magistrate’s findings on: [10.1] Whether the Appellant had shown, in her application, that good cause exists for her failure to serve on the First Respondent, a notice as required by section 3(1) read with section 3(2) of the Act. [10.2] Whether the Appellant has shown, in her application, that the First Respondent was not unreasonably prejudiced by such failure. [11]   In other words, this Court is called upon to determine whether the Appellant has successfully surmounted the legal hurdles placed by section 3(4)(b)(ii) and (iii) of the Act. In order to make such a determination, this Court is required to lay bare the legal principles regulating condonation applications made in terms section 3(4)(b) of the Act. Applicable legal principles [12]   Section 3(4) of the Act reads as follows: (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. [3] [13]   In dissecting the meaning of ‘ good cause’ Heher JA in Madinda v Minister of Safety and Security [4] ,  a unanimous decision of the Supreme Court of Appeal, cited the following passage by Schreiner JA in Silber v Ozen Wholesalers (Pty) Ltd [5] : “ 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 Gaan 1912 AD 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 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’ court rules), I am of the view that it   holds good for the interpretation of s 3(4)(b)(ii). “Good cause” usually comprehends the prospects of success on the merits of the case, for obvious reasons.” [6] “ ‘ [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… “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]   In elaboration, in Minister of Agriculture and Land Affairs v CJ Rance (Pty) Ltd [7] , Majiedt AJ (as he then was) elaborated as follows : “ [11] As can be seen, s 3(4)(b) circumscribes a court’s power 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, i.e. to serve the statutory notice according to s 3(2)(a) or to serve a notice that complies with the prescripts of s 3(2)(b); and (iii) the organ of State was not unreasonably prejudiced by the failure. These requirements are conjunctive and must be established by the applicant for condonation.” [15]   In Rossouw v Blignaut and Wessels and Another [8] , a very recent reportable judgment of the Supreme Court of Appeal, Makgoka JA, writing for the majority, re-iterated the position regarding condonation applications in terms of section 3(4) of the Act, as follows: “ [55] As to the element of good cause, it entails, among other things, the reasons for the delay, the sufficiency of the explanation offered, the bona fides of the applicant, any contribution by other persons or parties to the delay and the applicant’s responsibility therefor, and prospects of success in the proposed action.” [16] On the issue of prospects of success, the applicant in a condonation application is not expected at this stage to satisfy the Court on a balance of probabilities that her action would succeed [9] . A prima facie case and a bona fide intention in the sense of seeking an opportunity to have the matter tried would suffice. [10] At this stage, the Court of appeal should not seek to critique applicant’s evidence as if it is a trial court. [11] [17]   Furthermore, the majority judgment in Rossouw , said the following when dealing with the issue of unreasonable prejudice: “ [71] The Full Court did not consider this factor at all, since, seemingly, on its view, the applicant had failed to explain the delay between 2017 and 2018. In my view, the Full Court proceeded from the wrong premise in this regard and misdirected itself as a result. T he three jurisdictional factors in s 3(1)(a) should be considered in a balanced approach. None of them should, a priori, be eliminated from the equation simply because the other is weak. As pointed out in Madinda, prospects of success on the merits could mitigate fault.” [12] [18]   At paragraph [82] of Rossouw, Makgoka JA further emphasized that: “ [82] Furthermore, this Court pointed out in Madinda that although the onus to establish the absence of unreasonable prejudice rests on the applicant, whether the grounds of prejudice exist often lies peculiarly within the knowledge of the respondent. Thus, ‘a court should be slow to assume prejudice for which the respondent itself does not lay a basis. What this Court cautioned against is precisely what the high court and the Full Court did. The MEC laid no basis for her assertion that the late delivery of the statutory notice would not cause the department any unreasonable prejudice. Despite this, the two courts below assumed the presence of such prejudice in the   MEC’s favour. They erred in this regard.” Appellant’s principal submissions [19]   The crux of the submissions made by the attorney for the Appellant were as follows: [19.1] That the Appellant’s prospects of success in the main action against the Minister were good.  In support of this submission, the Appellant’s attorney argued that the warrant issued in terms of the Protection from Harassment Act 17 of 2011 (“Harassment Act”) and used in arresting the Appellant on 10 July 2023 was issued maliciously and unlawfully. If it was lawfully issued then it was unlawfully executed in that the, the South African Police Services (“|SAPS”) member who executed same did not follow the prescripts set out in section 11(4) read with section 11(5) of the Harassment Act. [19.2] He submitted further that the SAPS member who executed the warrant had discretion to exercise before arresting the Appellant but he or she failed to do so, hence the Appellant has instituted action proceedings for wrongful and unlawful arrest against the Minister herein. [19.3] Based on prospects of a successful prosecution of the action against the Minister, the Court a quo should have granted condonation. [19.4] In support of his written submissions, he referred the Court to the cases of Madinda and Rossouw which have already been referred to in this judgment. [19.5] Lastly costs should be awarded against the Minister for disrespecting the law. Respondent’s principal submissions [20] Attorney for the Respondent made the following submissions: [20.1] That this Court should refuse to be drawn into making a determination on the validity or invalidity of the issued warrant as this is the preserve of the court that will adjudicate the main action. [20.2] That the Appellant neither gave an explanation for her lengthy delay in filing the notice nor did her legal representative file an affidavit explaining the delay. This failure by both the Appellant and her legal representative to give a satisfactory explanation for the delay was fatal the to Appellant’s application for condonation. Discussion and findings [21]   It is clear from a reading of attorney for the Respondent’s submission that the sole reason why he seeks the dismissal of the appeal, is for the Appellant’s failure to give a satisfactory explanation for her delay in filing the notice. Proof of this, is the submission that this Court should refuse to deal with the issues pertaining to the arrest of the Appellant. [22]   It is clear that attorney for the Respondent never understood the crux and purpose of the submissions made by Appellant’s counsel when he tirelessly dealt with the manner in which the warrant was executed. In our view the Appellant’s attorney made submissions in this regard, it was not in an attempt to challenge the validity of the warrant, as incorrectly submitted by the Respondents attorney but, it was to illustrate that the Appellant has good prospects of success, which is an essential part of the ‘ good cause’ enquiry, in her action against the Minister. [23]   It would seem that the importance/significance of the element of prospects of success in condonation applications was not appreciated by the Respondent’s attorney.  This is despite the fact that he cited the judgment of Webber v Minister of Police in which Montzinger AJ, clearly says that the strength of an applicant’s claim also plays a key role, as strong merits may mitigate procedural failures, while weak merits may negate them. [13] [24]   This was not the only failure apparent from the submissions made by attorney for the Respondent. He also misunderstood the importance of dealing with the issue of unreasonable prejudice while he was better placed to do so. To clarify, he did not highlight any prejudice that might be suffered by the Minister should a condonation application be granted. It is very unfortunate that the shortcomings of the opposition mounted by the attorney for the Respondent were not apparent to the learned Regional Magistrate. [25]   Similarly, from our reading of the Court a quo’s judgment, it becomes palpably clear that she based her decision to dismiss the Appellant’s condonation application solely on the mistaken belief that the latter had failed to furnish the Court with a satisfactory explanation as to why the notice was served out of time. Similarly, the Court a quo’s judgment did not deal with the prospects of success of the Appellant in the main action should condonation be granted when assessing whether ‘ good cause’ has been shown and in this respect, the Regional Magistrate committed an error. [26]   Furthermore, the Regional Magistrate also erred in finding that she was under no obligation to deal with the question of whether the Respondent would suffer unreasonable prejudice as a result of the late delivery of the notice because she had already come to a finding that the explanation given for the delay was unsatisfactory. [27]   Having regard to the above discussion of the authorities related to the legislative requirements for condonation and considering the Court a quo’s judgment, it follows that the Regional Magistrate’s approach and findings are contrary to that espoused in the cases of Madinda v The Minister of Safety and Security [14] and Rossouw v Blignaut and Wessels and Another [15] . We emphasize that the Court a quo’s attention was drawn to the Madinda judgment and the legal principles set out therein but she chose to apply them incorrectly. The case law cited above enjoins the Court hearing a condonation application to also consider the prospects of success of the applicant in the main case when assessing whether the explanation given by the applicant for the delay is satisfactory. [28]   The authorities go further to state that the explanation for the delay may be unsatisfactory but if the prospects of success in the main case are strong and the Respondent has failed to show that it will suffer prejudice if condonation is granted, then the Court should exercise its discretion in favour of the applicant provided the applicant’s claim has not prescribed. [29]   Unfortunately, the judgment of the Regional Magistrate is devoid of these considerations as she does not deal with the issue of prospects of success and the importance thereof in making a determination on whether ‘ good cause’ has been shown, this is despite the fact that the Appellant’s attorney was at pains in demonstrating to the Court a quo that the prospects of success in the main case were high. [30]   It is unfortunate that the Regional Magistrate declined to deal with the issue of prejudice to the Respondent should condonation be granted on the  mistaken belief that failure to satisfy any of the requirements of section 3(4)(b) is fatal to the condonation application. [16] Her failure to deal with all the requirements set out in section 3(4)(b) is a result of this fatal misunderstanding of the legal position. [31]   To compound the slew of errors she committed, the Regional Magistrate referred to Mohlomi v Minister of Defence 2002 SA 316 (SCA) in her judgment in order to buttress her stance on the necessity of complying with time limits for efficient litigation and institutional memory. However, the citation provided by the Regional Magistrate of the case was incorrect.  The only judgment of Mohlomi v Minister of Defence found by this Court has the citation 1997 SA 124 (CC) [17] and that case dealt with whether section 113(1) of the now repealed Defence Act 44 of 1957 which required a litigant who intended to institute a civil claim against the Minister of Defence to notify the Minister in writing within a period of six months from the date on which the cause of action arose, is constitutional or not. The Constitutional Court, in Mohlomi, found that section 113(1) of the Defence Act is unconstitutional as it violated section 22 of the Constitution. It was therefore not appropriate for the Regional Magistrate to make reference to the case of Mohlomi v Minister of Defenc e in the circumstances of this case, as it was not applicable to the issues before her. [32]   In view of the above discussion, the Court a quo misdirected itself when it failed to appreciate that the requirements set out in section 3(4)(b) of the Act are interconnected and should therefore never be applied in isolation from one another. It is thus clear that several errors or misdirection occurred in its consideration of the Appellant’s condonation application, which led to an incorrect finding that the application was dismissed. [33]   This Court therefore finds that the Appellant’s condonation application should have succeeded as she had successfully shown the existence of good cause in her failure to file her notice timeously and she has also successfully shown that the Respondent would suffer no unreasonable prejudice as a result of her failure. [34]   As a result, the appeal succeeds and the order of the Court a quo will accordingly be substituted as set out below. [35]   Lastly, it is noted that the Regional Magistrate, in dismissing the condonation application, also omitted to make an appropriate costs order, notwithstanding the fact that the Appellant sought costs if successful with the application for condonation and that generally, costs followed the result. In my view, given the clarity provided by the authorities discussed above and the legislation on condonation, the opposition was unwarranted and the Appellant was entitled to the costs of the application. Order [36]   In the result, I would grant the following order: [36.1] The appeal is upheld with costs. [36.2] The order of the Cape Town Regional Court is set aside and substituted with the following order: The application for condonation is granted with costs. TJ MGENGWANA Acting Judge of the High Court I agree and it is so ordered. M PANGARKER Judge of the High Court APPEARANCES: For the Appellant: Mphahlwa and Co. Inc. Cape Town Per: Mr Y Mphahlwa For the Respondent:  The State Attorney Cape Town Per: Mr M Dyalivane [1] Par 40 – 39 of Court a quo’s Judgement dated 11 July 2025 [2] Ibid par 28 - 29 [3] Section 3(4) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 [4] [2008] ZASCA 34 ; 2008 (4) SA 312 (SCA) par [11] [5] 1945 (2) SA 345 (A) at 352H-323A [6] Madinda v Minister of Safety and Security 2008 (45) SA 312 (A) at 316J – 317A [7] 2010 (4) SA 109 (SCA) [8] [2025] ZASCA at par [55] – judgment was delivered on 7 October 2025 [9] Rossouw, par [65] [10] Ibid, par [65] [11] Ibid, par [68] [12] Ibid par 71 [13] Webber v Minister of Police (12612/2019) [2024] ZAWCHC 277 (25 September 2024) Para 18 [14] 2008(4) SA 312 (A) at 316J-317A [15] [2025] ZASCA at par [55] -judgment was delivered on 7 October 2025 [16] Paragraph 18 of the Court a quo’s judgement [17] Mohlomi v Minister of Defence 1997 SA 124 (CC) sino noindex make_database footer start