THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 505/2012
Reportable

In the matter between:

ROAD ACCIDENT FUND

Appellant

and

ADVOCATE ELE MYHILL, NO
(SWALIBE MINORS)

Respondent

Neutral citation:
Road Accident Fund v Myhill NO (505/2012) [2013] ZASCA 73
(29 May 2013)

Coram:
Brand, Shongwe and Leach JJA and Willis and Van der Merwe AJJA

Heard:
3 May 2013

Delivered:
29 May 2013

Summary:
Contract ─ rescission of a contract concluded on behalf of a
minor to settle minor’s claims ─ defendant sued not entitled to set-off against
claims brought on behalf of minor by a custodian parent any amount
personally owed to it by the parent ─ settlement concluded on basis of such
set-off and without making any allowance for real prospect of minor requiring
future medical treatment ─ settlement substantially prejudicing minor ─
settlement set aside.

___________________________________________________________________

O R D E R
___________________________________________________________________

On appeal from:
South Gauteng High Court, Johannesburg (Strydom AJ sitting
as a court of first instance):
The appeal is dismissed with costs, including the costs of two counsel.
___________________________________________________________________
J U D G M E N T
__________________________________________________________________

LEACH JA (BRAND and SHONGWE JJA, WILLIS and VAN DER MERWE AJJA
concurring)

[1] The appellant is the Road Accident Fund, an organ of state established under
s 2(1) of the Road Accident Fund Act 56 of 1996, having as its primary function the
provision of compensation to persons injured through the negligent driving of motor
vehicles. The crisp issue arising in this appeal is whether agreements settling the
claims for damages brought against the appellant on behalf of two minors should be
recognised as binding or set aside. The high court held that they should be set
aside, but granted the appellant leave to appeal to this court.
[2]   On 20 March 1997, Ms Seani Swalibe (‘the plaintiff’) and her two children,
Philippine and Lufuno Swalibe,1 respectively aged two years and four months at the
time, sustained bodily injuries when they were run down by a motor vehicle.
According to the plaintiff, the incident occurred on or alongside an unpaved road in
Katlehong as she was walking facing oncoming traffic. She alleges that she was
carrying Lufuno on her back and holding Philippine by the hand when a motor
vehicle, which approached from the rear, moved onto its incorrect side of the road
and collided with them.

1 For convenience I intend to refer to the two minors simply by their first names. No disrespect is
intended.

[3] Both Philippine and Lufuno were hospitalised as a result of head injuries they
sustained in this collision. Not surprisingly, the plaintiff also appears to have been
injured, although the nature and severity of her injuries were not canvassed in the
court a quo. Be that as it may, in due course the plaintiff consulted an attorney,
Ms Cynthia Chabana of Germiston, whom she instructed to claim compensation
from the appellant. Ms Chabana proceeded to complete the prescribed claim forms
in respect of a personal claim of the plaintiff and separate claims by her in her
capacity as mother and natural guardian of Philippine and Lufuno. The claim forms,
together with various supporting documents, including copies of the police accident
report form, plan and key as well as the plaintiff’s police statement and an affidavit
by her explaining the circumstances under which the collision had occurred, were
posted to the appellant on 19 August 1998.
[4] The claims made on behalf of the minors were not unduly substantial, totalling
R57 260 for Philippine and R60 260 for Lufuno. The major item of each claim related
to so-called ‘general damages’, in respect of which R55 000 was claimed on behalf
of Philippine and R60 000 for Lufuno. The balance claimed in respect of each child
was made up of R260 for past hospital expenses, R1 000 for past medical expenses
and a further R1 000 for estimated future medical expenses.
[5]   The claims were dealt with at the appellant’s Randburg branch. On receipt, a
so-called ‘sub-0’ file relating to the plaintiff’s personal claim was opened. Into this
were placed two sub-files, respectively numbered as the ‘01’ and ’02’ files, each of
which related to the claim of one of her children. The claims were then forwarded for
assessment and were allocated for that purpose to Mr Ambrose Dickenson, a senior
claims handler.
[6]    Following the appellant’s standard procedure, Mr Dickenson passed the claims
onto a so-called ‘office’ operating under him for initial assessment. The office he
selected was staffed by a claims handler, Siphiwe Khumalo, and a claims assistant,
Adri Oosthuizen, who proceeded to seek further information from Ms Chabana.  This
led to the office preparing assessments in respect of both Philippine and Lufuno’s
claims. Due to a lack of supporting documentation, no allowance was made for

hospital or medical expenses and the assessments related solely for general
damages. In respect thereof, an amount of R10 000 per child was suggested.
[7] The assessments and all available documents were then returned to
Mr Dickenson for him to deal further with the claims. Agreeing with the assessments,
he authorised Ms Oosthuizen to commence settlement negotiations and to start the
bidding, so to speak, by offering R8 000 in respect of Philippine’s general damages
and R7 000 for those of Lufuno. However, as the merits of the claim had been
assessed on the basis that the plaintiff had been partially to blame for the collision
(an issue to which I shall return in due course) he further instructed that the amounts
offered should be reduced by 30% to cater for the plaintiff’s contributory negligence.
Even though he accepted that the claims of the two minor children could not be
subject to an apportionment, Mr Dickenson testified that it was the appellant’s
standard practice to do so in these circumstances as it eliminated having to
subsequently sue custodian parents for a contribution in respect of amounts paid to
their children.
[8] Accordingly, on 21 April 1999, Ms Oosthuizen wrote to attorney Chabana
offering to settle the children’s claims by paying R5 600 in respect of Philippine
(R 8000  less a 30% deduction of R2 400 in respect of an apportionment) and
R4 900 in respect of Lufuno (R7 000 less a 30% apportionment of R2 100). An
additional sum of R1 350 per claim was offered as a contribution towards the
plaintiff’s costs.
[9] For some inexplicable reason the plaintiff was not called to testify in the court
below to explain what had happened when these offers were received, and one is
left to infer that attorney Chabana probably recommended that they should be
accepted. In any event, on 10 May 1999 the plaintiff, in her capacity as Philippine
and Lufuno’s mother and natural guardian, signed discharge forms accepting the
offers. Pursuant thereto, on 18 May 1999 the amounts concerned were paid to
attorney Chabana.  Unfortunately Philippine and Lufuno derived no benefit from this
as we were informed that attorney Chabana had subsequently disappeared together
with the amounts she had received on behalf of the plaintiff. Sad though that this
may be, it can bear no reflection upon the issues to be decided.

[10] Time passed, and some 10 years later a practising advocate, the respondent,
was appointed as curator ad litem to represent Philippine and Lufuno in civil
proceedings against the appellant. In due course the respondent issued summons,
seeking an order setting aside the settlements and claiming substantial damages for
the two children arising out of their injuries. Inter alia, it was alleged in the summons
that at the time the offers of settlement were made, a sum of R850 000 would have
been fair and reasonable compensation for each child. Before the matter came to
trial the parties agreed that the issue of liability should be determined at the outset
as a separate issue, with the issue of damages standing over for later decision if
needs be. An order to that effect was made, and the trial in the court a quo
proceeded solely in regard to the so-called ‘merits’ of the claim.
[11] In seeking to set aside the settlement agreements, the respondent relied on
three alternative causes of action: first, that the agreements were void or voidable
due to mistake; second, that they were prejudicial to the interests of the two children;
and third, that in making the offers, the appellant had breached a statutory duty to
investigate the nature and extent of the injuries suffered by the children and their
consequences, and to offer them reasonable compensation. The court a quo
appears to have been somewhat sceptical about the sustainability of the first and
third of these, but found in favour of the respondent on the second. The correctness
or otherwise of its decision in that regard was the sole issue debated in the appeal. It
is to this issue that I now turn.
[12] The principles relating to the rescission of a contract concluded on behalf of a
minor are well established and do not need to be dealt with in any detail. Suffice it to
say that the parties were correctly agreed that a contract may be set aside under the
restitutio in integrum if it is shown that it was prejudicial to the minor at the time it
was concluded.2 In that regard, it is necessary to show that the prejudice suffered
was serious or substantial. As Boberg states ‘to succeed in a claim for restitution,

2 See in this regard Van Heerden et al Boberg’s Law of Persons And The Family (2nd ed) pg 724 and
the authorities there collected at footnote 278, and Boezzart Child Law in South Africa pg 30.

the minor must show that the transaction against which he or she objects was
inimical from its inception’.3
[13] Of course in considering the issue of prejudice in a case such as this, a court
must guard against being wise after the event and taking into account factors
unknown at the time the claims were settled. In the present case, at the time the
claims were compromised the only medical information available in regard to the
nature and severity of the children’s injuries and the sequelae thereof was that
contained in the medical report section of the prescribed claim forms and the
children’s hospital records.
[14] The prescribed medical reports in both cases were compiled by a Dr Snide of
the Natalspruit Hospital. He recorded that both children had suffered head injuries
that were ‘serious’. Dr Snide’s competence to assess the severity of head injuries
was questioned on appeal, counsel for the appellant pointing out that he was an
orthopaedic surgeon not a neurosurgeon, and that he had recorded that Philippine
had been unconscious whereas her hospital records reflect that she had been
conscious an hour or so after the injury had been sustained. Dr Snide did not testify,
and there is thus no explanation for this possible contradiction. But more importantly,
there is no reason to think that an orthopaedic surgeon, who is after all a trained
medical specialist, was not able to recognise and evaluate whether a head injury
should be regarded as ‘minor’, ‘fairly severe’ or ‘severe’ ─ those being the three
standard categories set out in the medical report. Moreover Philippine was
hospitalised for ten days after the collision and Lufuno for six days.  These periods at
first blush indicate that their head injuries were by no means insubstantial.
[15] Importantly the hospital records show that after Philippine and Lufuna had
been released from hospital, the plaintiff alleged that both had undergone seizures
on various occasions. This complaint had led to a Dr Levuno examining Philippine in
October 1998, but although he recorded his opinion that whatever fits she might
have had were not related to the accident, subsequent entry in Philippine’s hospital
records of a complaint by the plaintiff that Philippine had twice had seizures throws
some doubt on this. The plaintiff described two incidents, the most recent in August

3 At 724-725.

1998, where a seizure was accompanied by ‘uprolling of the eyeballs.’ According to
the evidence of Ms Adan, a neurophysiologist who testified in the court below, this
was a classic description of a general tonic chronic epileptic seizure. The plaintiff’s
complaint in this regard led to arrangements being made for Philippine to go to an
epilepsy clinic on 14 October 1998 and for her to be booked for an electro-
encephalogram, an examination used to diagnose abnormal activity in the brain
typical of epileptic seizures. Unfortunately her hospital records are incomplete. There
is no report from the epilepsy clinic and it is not known whether Philippine received
the encephalogram or, if she did, what it showed.
[16]   Turning to Lufuno, Dr Snide’s report reflected that she was suffering from
concussion on admission to hospital and that she was referred for neuro-
observation. An impact wound to the occipital area was noted. This is consistent with
the plaintiff’s statement submitted to the appellant that a portion of Lufuno’s scalp
was removed. Whatever Lufuno’s symptoms may have been, it was decided to
perform a CT scan later that day. It showed an infarct in the parietal area of the brain
just behind the frontal lobe where a blood clot obstructing the blood flow in that area
caused the tissue around it to die. It was accepted that a child with a focal injury
such as this would be at a higher risk of developing post-traumatic epilepsy. Indeed
in Lufuno’s case as well, the plaintiff subsequently took her back to the hospital and
complained that she had twice had seizures. Lufuno, too, was booked for an electro-
encephalogram and was to attend the epileptic clinic at the hospital on 14 October
1998. However, as was the case with her sister, the results of these investigations
were not available.
[17] In assessing the general damages of each child at R10 000, Mr Dickenson
and his office were guided by a list of recommended awards for general damages
used by the appellant at the time. In respect of a fracture of the base of the skull, a
sum of R8 640 was suggested in cases with minor after-effects and R10 800 in
cases involving moderately severe after-effects. For a fracture of the parietal area of
the skull, it recommended R9 720 in cases of minor after-effects and R14 040 in the
event of there being moderate after-effects. How these guideline figures had been
arrived at was unexplained.  It is of some relevance that Mr Dickenson did not know
what an infarct was and clearly he did not appreciate the severity of Lufuno’s injury.

He also incorrectly thought that the occiput, the site of Lufuno’s external injury, was
at the front part of her head.
[18] Be that as it may, although the evidence of Mr Dickenson was somewhat
ambivalent about the issue, it appears that possible epilepsy was not taken into
account by the appellant’s staff in the assessment of the children’s general
damages. This is borne out by the appellant’s assessment forms and the failure to
make any allowance in respect of future medical expenses. Indeed appellant’s
counsel was driven to argue that epilepsy had been disregarded as, on the medical
records available to the appellant at the time, it had not been positively diagnosed.
That may be so, but the medical information available indicated, as I have said, that
they had each sustained a head injury that was by no means insubstantial and had
required hospitalisation of some duration. Moreover, not only had Lufuno suffered an
infarct in the brain but the plaintiff had complained that both children had suffered
epileptic seizures. This complaint could not just be ignored for purposes of a
compromise. Post-traumatic epilepsy is a complication wholly consistent with head
injuries such as those the children had suffered. Any reasonable assessment of the
children’s damages should therefore have taken into account that there was a real
possibility that they had developed post-traumatic epilepsy.
[19]   Taking that possibility into account, the amounts of R8 000 and R7 000 offered
as an assessment of the general damages of the two children were not only
substantially less than the appellant’s own assessment of the claims but were, in my
view, wholly inadequate. In reaching that conclusion I am aware that substantial
increases in awards have occurred since 1999 and that it is necessary to consider
what would have been reasonable then and not now. But the amounts offered, even
then, would have been appropriate only for substantially less severe cases, and
certainly not in cases where there were indications of post-traumatic epilepsy.
[20] It is neither necessary nor desirable to deal with the issue of the general
damages any further. Suffice it to say that I am satisfied that the offer to settle
Philippine’s general damages at R8 000 and those of Lufuno at R7 000 was wholly
inadequate and that, had the real possibility of them having suffered epilepsy as a
result of their injuries been taken into account as it should have been, a reasonable

assessment of their damages would probably have substantially exceeded the
appellant’s assessment of R10 000.

[21] The failure to take epilepsy into account is also crucial in a further respect.
The compromise made no allowance in respect of future medical expenses. There
was direct evidence before the court a quo that the cost of treating epilepsy could
amount to R1 000 per month and, that being so, in the event of epilepsy manifesting
itself, the amounts at which the claims were settled would be wholly inadequate.
Even if on the medical information available epilepsy was no more than a real
possibility and not a probability, that does not mean future medical treatment could
be discounted in settling the claims.  It is well established that in actions arising out
of bodily injuries involving prospective loss, a plaintiff is not required to prove on a
preponderance of probability that such loss will in fact occur and a court in assessing
future loss may make a contingency allowance for the possibility of it occurring.4
Moreover, the real possibility of future medical expenses could easily have been
catered for by the appellant providing a certificate in respect of future medical
expenses under s 17(4)(a) of the Act. Indeed, such certificates are tailor made to
deal with any uncertainties that might arise in cases such as this. In the absence of
a certificate or any other provision for the real contingency that future medical
expenses might be incurred  to treat both children for epilepsy in the future, the
settlements were obviously to Philippine and Lufuno’s prejudice.

[22] Then there is the fact that the already parsimonious amounts offered were
reduced by a further 30% to cater for an apportionment against the plaintiff herself.
One does not know on what basis the appellant concluded the plaintiff had been
30% to blame for the collision.  On the plaintiff’s version (that the vehicle swerved
across the road and ran her and the children down from the rear while they were
either close to the edge or indeed off the road) it is hard to see how it could have
been concluded that she had been negligent to any degree. Unfortunately the
appellant’s assessment of the merits of the collision was in the plaintiff’s sub-0 file
and no copy was available in the sub-files of the two injured children that were

4 See Jowell v Bramwell-Jones [2000] 2 ALL SA 161 (A) para 23, Blyth v Van den Heever 1980 (1)
SA 191 (A) at 225E-226B and Burger v Union National South British Insurance Co 1975 (4) SA 72
(W) at 75D-F.

handed in as exhibits in the court below. In addition, for some inexplicable reason
the merits assessment was neither called for nor debated in any detail in the court
below. When asked about it, Mr Dickenson had a vague recall that it had been
based on an allegation that the plaintiff had moved into the road with the children.
But even if such an allegation had been made, its source is a mystery. It is certainly
wholly inconsistent with all the police documentation.  Be that as it may, for present
purposes I am prepared to accept that the 30% apportionment which the appellant
sought to apply was based on a bona fide assessment of the plaintiff’s negligence
and was not merely a groundless attempt on the part of the appellant to reduce the
extent of its liability. Even so, it is another matter whether it was entitled to apply an
apportionment against Philippine and Lufuno’s damages.
[23]   The general principle is trite that in order for set-off to operate between two
parties there should be reciprocal indebtedness which, if both debts are equal, leads
to their mutual discharge or, if they are not equal, to the larger being reduced by the
amount of the smaller.5  It is also trite that individuals in their personal capacities are
treated as different persons from when they act in representative capacities.
Consequently ‘a debt owed by or to a person in his individual capacity cannot be set-
off against a debt owed to or by the same person in a representative capacity
whether as executor, trustee, custodial parent, stakeholder or however’.6
[24]   Despite this, the appellant argued that it had been permissible as an exception
to the general rule for it to set-off any amount it could recover from the plaintiff in her
personal capacity from what it owed her in her capacity as mother and natural
guardian of her two minor children. In advancing this contention the appellant relied
on Voet 16:2:8  the opening passage of which reads as follows: 7
‘Set-off in cases of ─
(i) Guardian’s claim against own debtor and debt of ward. ─ Furthermore a guardian who
sues against his own debtor in his own name is not held liable to suffer set-off of what his
own ward owes to the opponent sued.

5 Blakes Maphanga Incorporated v Outsurance Insurance Company Ltd [2010] 3 All SA 383 (SCA)
para 14.
6 Christie The Law of Contract in South Africa 6th ed at 498.
7 Voet Commentary On The Pandects (Gane’s translation) 16:2:8.

(ii)  Guardian’s claim for debt to ward and his own debt. ─ Nor does what a guardian claims
in the name of his wards from a debtor to the wards undergo set-off of what the guardian
owes in his own personal name to such debtor of the wards.
(iii)  Guardian’s debt to creditor who is also in debt to ward. ─ But if a guardian is sued in his
own name by his own creditor who is likewise a debtor of the ward, the position is rather that
set-off is allowed of that which the guardian owes against that which is owed to his own
ward.’
[25] The appellant relied solely upon Voet’s opinion in (iii) above as authority for
its argument. However, not only does that passage appear to be inconsistent with
the principle set out in (ii), but it flies in the face of the well-established general
principles of set-off just mentioned ─ which are consistent with what is set out in (i)
and (ii). It is therefore not surprising that the principle espoused in (iii) has been the
subject of trenchant criticism. Christie refers to it as being an authority ‘of doubtful
validity’8 while Wessels, in his seminal work on the law of contract, states ‘the debts
are in (such a) case not mutual, and it seems difficult to reconcile the opinion of Voet
with . . .  the general principle’.9  Wessels further points out that Voet’s opinion in this
regard follows that of Faber and that ‘[t]here is no evidence that the Roman-Dutch
Law recognised Faber’s principle.’10
[26]  Wessels suggests that Voet favoured the principle suggested by Faber as
both were of the opinion that its operation would not prejudice a minor.11  It seems to
me, however, that the prejudice to a minor in a case such as the present is obvious;
the amount of an innocent minor’s claim against a defendant would be diminished by
reason of the fault of another. In my view even if the underlying premise on which
Voet and Farber based their opinions reflected the views of their time, it cannot be
regarded as valid today.
[27]  Indeed more than a century ago the author of a case note published in the
South African Law Journal, in  referring to  Voet 16:2:8, commented that ‘when the
tutor on behalf of the ward sues A, A cannot demand that what the tutor personally

8  Christie at 498.
9  Wessels Law of Contract in South Africa (2nd ed) vol 2 § 2517.
10 Referring to Van Leeuwen Censura Forensis 1.4.36.20; Pothier Obligation s 594; Demolombe
Contrats vol 5 n 561.
11 See Gane at 157.

owes him shall be set-off against the claim now made’.12  Similarly Wessels states:13
‘Hence, if a guardian demands a debt due to his ward, the minor’s debtor cannot claim to
set-off what is due to him by the guardian in his own right and not in his capacity as
guardian.’
[28]   Not only has this been accepted as a correct reflection of the law for many
years14 but there seems to me to be no reason in principle why the general rules of
set-off, which exclude a debt owed by or to an individual in his personal capacity
being set-off against a debt owed by or that person in a representative capacity,
should not operate in respect of claims brought by custodian parents on behalf of
their minor children. Not to apply the general rule can only be to the disadvantage of
any such minor. While there do not appear to be any reported decisions advancing
the contrary conclusion, I think the time has now come for this court to put the matter
beyond doubt and to rule that a debtor liable to a minor child, when sued by the
child’s custodian parent, may not set off against its liability to the child any amount
that it may personally be owed by the custodian parent.
[29] That being so, it was impermissible to reduce the appellant’s liability to
Philippine and Lufuno by way of setting off against their claims the alleged personal
liability of the plaintiff to it it arising from contributory negligence on her part, and the
two children were clearly prejudiced by it having done so.
[30] Of course the mere fact that the claims were settled in amounts less than
what they were worth does not in itself lead to the inexorable conclusion that the
settlement agreements should be rescinded. Weighed in the scale must also be the
inherent advantages of compromising a claim. The old adage that a bird in the hand
is worth two in the bush is all too frequently true in respect of litigation which is, by its
very nature, fraught with unforeseen difficulties. All too often the anticipated strength
of a case wilts during the progression of a trial. Not only do witnesses both err and
make unmerited concessions, but the assessment of general damages and future
losses are matters of discretion upon which opinions may validly differ. All in all, the
prediction of the outcome of a claim for damages for bodily injuries is not a matter for

12 South African Law Journal (Vol 20) 1903, 55 at 56.
13 §2515.
14 Cf Exley v Exley 1952 (1) SA 644 (O) at 647A-C.

the fainthearted and is incapable of accurate determination. A value judgment has to
be made and, bearing in mind that a settlement not only does away with the inherent
uncertainties of litigation but also limits the escalation of costs and brings about an
immediate payment rather than one forthcoming at some future, uncertain stage, it is
often best to settle even if the amount offered is less than what is hoped would be
finally awarded.
[31] Nevertheless, despite the advantages attendant upon settling Philippine and
Lufuno’s claims even before the issue of summons, in my view the agreements fall
to be rescinded. The relatively trifling amounts at which the children’s claims were
settled bear no realistic relationship to the measure of their damages, regard being
had to the nature and severity of their injuries and the very real prospect that they
could experience epilepsy in the future. Although a court should always be cautious
in interfering with compromises seriously concluded, there was in my view such
substantial prejudice suffered by Philippine and Lufuno that the agreements cannot
be allowed to stand. Accordingly the court below correctly concluded that they
should be set aside.
[32] The appeal is dismissed with costs, including the costs of two counsel.

______________________
L E Leach
Judge of Appeal

APPEARANCES:

For Appellant:

M Patel (with him J Schwartz)

Instructed by:

Lindsay Keller Attorneys, Rosebank

Matsepes Inc, Bloemfontein

For Respondent:

B Ancer SC (with him A Berkowitz)
Instructed by:
Norman Berger & Partners Inc, Highlands
North, Johannesburg

Lovius, Block Attorneys, Bloemfontein

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:  The Registrar, Supreme Court of Appeal
Date:  29 May 2013
Status:  Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

Neutral citation:
Road Accident Fund v Myhill NO (505/2012) [2013] ZASCA 73
(29 May 2013)

In March 1997 two minor children of Ms S Swalibe were injured when they were run
down by a motor vehicle which had swerved onto its incorrect side of the road. In
due course Ms Swalibe sued the appellant for damages on behalf of her children,
both of whom had sustained severe head injuries. The appellant offered to settle by
paying R5 600 in respect of one child and R4 900 in respect of the other. Probably
on the recommendation of her attorney, in May 1999 Ms Swalibe signed discharge
forms accepting the two offers.

Ten years later, the respondent, a practising advocate, was appointed as curator ad
litem to represent the two minors in civil proceedings against the appellant and, in
due course, he sued for an order setting aside the settlement agreements and
claiming substantial damages for the two children. The high court was called upon
merely to decide whether the settlements should be recognised as binding or set
aside. It set them aside. With leave of the high court, the appellant appealed to the
Supreme Court of Appeal.

The Supreme Court of Appeal found that the two children had been substantially
prejudiced by the settlements. Not only had the amounts offered taken no account of
the real possibility that both children had developed post-traumatic epilepsy, and
were for that reason inadequate, but it also made no provision for future medical
expenses which was a likely contingency. Moreover the amounts offered had been
reduced by the appellant’s assessment that Ms Swalibe herself had been
contributorily negligent in regard to the collision and had set-off an amount against
her children’s claims its assessment of her liability to it. It was contended that this

was permissible by reason of the third paragraph of Voet 16:2:8. The Supreme Court
of Appeal however ruled that the passage relied upon had been based on an
acceptance that no prejudice would be caused to the minors if set-off was to
operate, and that the time has now come to rule that a debtor liable to a minor child,
when sued by the child’s custodian parent, may not set-off against its liability to the
child any amount that it may personally be owed by the custodian.

As a result of the offers that the appellant made failing to take account of the
possibility of the children suffering from epilepsy or any amount in respect of future
medical expenses, and due to the impermissible reduction of the claims by reason of
the apportionment, both children had been substantially prejudiced by their
acceptance. The Supreme Court of Appeal therefore ruled that the high court had
correctly found that the agreement should be set aside and dismissed the appeal.

---ends---