In a recent judgement, the Constitutional Court ruled that not knowing that you can institute a civil claim against a state institution does not delay prescription. In basic terms, “prescription” refers to the role that passage of time plays in ending certain rights. The court found that claimant (Mr. Sinethemba Mtokonya) is legally not allowed to institute a claim against the Minister of Police for unlawful arrest, detention, and assault on the basis that his claim had prescribed.

In 2010, Mtokonya was arrested by the SAPS and detained for five days, despite the law stating that he should’ve appeared in court within 48 hours of being arrested.  It wasn’t until 2013 (3 years later) that Mtokonya issued a claim against the Minister of Police to recover damages for being detained unlawfully, after his neighbour, who happens to be a lawyer, informed him that the SAPS’ conduct was unlawful.  By then, however, the “window period” to take legal action against a body of the State had expired.

It’s important to note that it is well within your rights to sue an organ of the State, but you are required to:

• Give written notice of your intention to institute legal action against the particular body (e.g. Minister of Health and Welfare, Minister of Police) within six months of the claim arising. The notice must be delivered to the person by hand or by email. Then, after 90 days after the notice;
• Start legal proceedings against the relevant state organ within three years of the claim arising.

If you don’t give the required six months’ notice and you have good reasons for not doing so, you can apply to the court for condonation. This means you ask the court to allow you to continue with the claim even though it has officially prescribed/lapsed because you had good reasons for failing to give notice. Do note: simply not knowing that you can institute a claim won’t delay prescription.

Remember, always consult a legal expert to guide you along the way.