THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 213/2021
In the matter between:

MEMBER OF THE EXECUTIVE COUNCIL FOR THE
DEPARTMENT OF HEALTH, EASTERN CAPE

APPELLANT

and

BABALWA MBOKODI

RESPONDENT

Neutral citation: Member of the Executive Council for the Department of
Health, Eastern Cape v Mbokodi (213/2021) [2022] ZASCA
140 (24 October 2022)
Coram:
DAMBUZA, MOLEMELA and MAKGOKA JJA, GOOSEN
and CHETTY AJJA
Heard:
30 August 2022
Delivered: 24 October 2022
Summary:  Civil Procedure – action for damages for medical negligence – Rule
nisi – whether competent for court to issue rule nisi calling upon a party to show
cause why amounts agreed between legal representatives, without its authority,
should not be made an order of court.

ORDER

On appeal from: Eastern Cape Division of the High Court, Mthatha (Brooks J
sitting as a court of first instance).
The appeal is upheld, with no order as to costs.
The order of the high court is set aside and replaced with the following
order:

‘The rule nisi dated 23 March 2020 is discharged, with no order as to costs.’

JUDGMENT
Goosen AJA (Dambuza, Molemela and Makgoka JJA and Chetty AJA
concurring):

[1] This appeal is against an order of the Eastern Cape Division of the High
Court, Mthatha (the high court), confirming a rule nisi on 30 June 2020, which
was granted on 23 March 2020. The respondent sued the appellant, the Member
of the Executive Council for Health, Eastern Cape (the MEC) in her personal and
representative capacities on behalf of her minor child. She claimed damages
arising from harm caused to the minor child during birth at Mthatha General
Hospital, a public health facility in the Eastern Cape, which falls under the MEC’s
authority.

[2] The action commenced in July 2015. On 15 October 2019 Dawood J issued
an order in terms of which the MEC was held liable for damages suffered by the
respondent in both her personal and representative capacities. The determination

of quantum was postponed to 28 November 2019 ‘for settlement purposes only.’
(My emphasis.)

[3] On 28 November 2019 the matter came before Brooks J, who issued an
order, by agreement, that:
‘1. The matter be and is postponed to 7 February 2020 for settlement purposes.
2. The defendant is directed to serve and deliver its expert reports on quantum on or before
05 December 2019.
3. The parties are directed to conclude joint minutes on 13 December 2019.
4. The parties are further directed to hold a further pre-trial conference on 17 January 2020.’
(My emphasis.)

[4] On 7 February 2020, the matter came before Mbenenge JP. Both parties
were represented. The following order was issued:
‘1. The matter be and is postponed to 23 March 2020 for settlement purposes.
2. The parties are directed to hold a further pre-trial conference on a mutually convenient date.
3. The parties are directed to present to the court the aforesaid pre-trial conference minute on
or before 13 March 2020.’ (My emphasis.)

[5] Following the postponement of the case to 23 March 2020, two pre-trial
conferences were held. The outcome of each was recorded in a minute, the first
dated 16 March 2020 and the second, 19 March 2020.The first minute records
that the parties were represented by attorneys and counsel. In paragraph 3 it is
stated:
‘3. The parties confirm that they are duly authorised to attend the conference to deal with the
business raised therein and agree where agreements are reflected.’

[6] In paragraph 4 it is recorded that after extensive discussions and
negotiations the parties reached agreement on a number of issues. These are set
out in the remainder of paragraph 4 and paragraphs 5 to 9. A reading of the minute

indicates that certain adjustments were to be made to the actuarial calculations
and for this purpose the pre-trial meeting was adjourned to 19 March 2020.

[7] The meeting of 19 March 2020 was a continuation of the earlier meeting.
In paragraph 3 of the minute it is again stated that the attendance of ‘the parties’
is duly authorised. Paragraphs 4 to 8 contain details of the amounts agreed upon
in the computation of damages by the relevant experts. Paragraphs 9 and 10 state:
‘9. The parties agree that the total value of the plaintiff’s claim is the sum of R23 16 489.00
and this sum is fair and reasonable and a compromise for the settlement of the plaintiff’s claim.
10. The parties recorded that the defendant’s legal representative will seek instructions to settle
the plaintiff’s claim on the agreed sum.’

[8] The minute of the pre-trial conference was signed by attorneys for the
plaintiff and the defendant, and filed. On 23 March 2020 the matter came before
Griffiths J, who issued the following order:
‘1. The parties’ legal representatives are in agreement that a sum of R22 716 489.00 represents
a fair and reasonable quantum of damages in respect of Hlelimina Mbokodi and provisional
agreement has been reached that an order incorporating this sum and in the usual ancillary
terms should be granted.
2. The parties’ legal representatives are in agreement that a sum of R450 000.00 represents a
fair and reasonable quantum of damages in respect of the plaintiff in her personal capacity.
3. The defendant’s representatives do not currently have instructions to settle the matter in the
aforesaid sums, now therefore, a rule nisi is issued by agreement calling upon the
Superintendent General of the Department of Health to appear in this Court on
Wednesday, 15 April 2020 at 09h30 and show cause why an order should not be granted in
favour of the Plaintiff in terms of the draft Order attached hereto marked ‘X’.
4. The service of this Order is to be effected on the Office of the Superintendent General
and/or Legal Services of the Defendant by the Defendant’s Attorneys of record, Mr Nqiwa.
5. Failing the appearance of the Superintendent General as aforesaid a final Order will be
issued.

6. The Defendant is to pay the costs relating to today’s proceedings, including costs of two
counsel and witnesses (if any), and the reasonable reservation charges in respect of plaintiff’s
witnesses (if any).’

[9] The Superintendent-General of the Department of Health, Dr Mbengashe,
deposed to an affidavit setting out reasons why the rule nisi should not be
confirmed. On 7 May 2020, the MEC filed a notice of intention to amend the
plea. The proposed amendment envisaged the introduction of a defence in respect
of the quantum of damages along the lines of what has come to be called the
‘public health service’ defence.1 A notice of objection to such amendment was
filed. So too was a replying affidavit responding to the affidavits filed by the
MEC. The return date of the rule nisi was initially extended to 27 May 2020 and
thereafter to 18 June 2020.2 The matter came before Brooks J, who delivered his
judgment on 30 June 2020 confirming the rule nisi and issuing an order in
accordance with the draft that had been annexed to the order of Griffiths J.

[10] Brooks J confirmed the rule on the basis that an agreement had been
reached by the legal representatives, duly authorised, pursuant to a court-directed
settlement process. This appears to have been a reference to the fact that the
matter had previously been postponed ‘for settlement purposes’. He found that
the context in which the rule came to be issued pointed to a firm and binding
agreement as its causa. An important element of the high court’s reasoning
concerned the adoption of a practice, in that court, to deal with persistent failures

1 See Member of the Executive Council for Health and Social Development, Gauteng v DZ obo WZ [2017] ZACC
37; 2018 (1) SA 335 (CC), in which the Constitutional Court left open the possibility of the future development
of the common law ‘once and for all rule’ in relation to delictual claims for payment of damages in respect of
future medical treatment.
2 On 3 April 2020, Norton Rose Fulbright South Africa Inc., who it is common cause were appointed as new
attorneys representing the MEC, wrote to Sakhela Incorporated, representing the respondent. They stated that they
had been appointed but, due to the circumstances of the lockdown, had not yet been able to obtain the case file
from the State Attorney or counsel who had been involved in the matter.  In subsequent correspondence it was
proposed that the case be postponed and the rule nisi extended, in accordance with a Practice Directive which
regulated practice under the constraints of the national lockdown. On 14 April 2020 a notice of substitution of
attorneys was filed.

on the part of the MEC to fully and properly engage with litigation in similar
matters, and the failure to furnish timeous instructions to the State Attorney. I will
touch upon this briefly hereunder. The high court concluded that no reasonable
basis had been demonstrated why the order should not be confirmed.

[11] Brooks J subsequently refused leave to appeal, but on further application,
leave was granted by this Court. In doing so this Court raised the question
whether, in the light of the fact that the legal representative did not have
instructions to agree to the quantum, it was within the power of the high court to
grant the rule nisi. This requires consideration of the rule nisi procedure, in
general, and the nature and effect of the order granted on 23 March 2020.

The rule nisi procedure
[12] A rule nisi is an order issued by a court, at the instance of a party, calling
upon another party or parties to show cause on a stipulated date before that court
why relief, as claimed, should not be granted. The procedure, which derives from
English law, has been employed by our courts for well over a century.3 Its use
and development is underpinned by the principle that a court will not grant relief
which impacts or constrains the rights and interests of a party without affording
that party an opportunity to be heard (audi alteram partem). It is also premised
on the acceptance that the interests of justice require the balancing of rights and
interests to ensure that what is worthy of immediate protection is not prejudiced
by the time it takes to hear all interested parties.

[13] The rule nisi is generally used in ex parte applications. Van Zyl4 explains
that,

3 See Setlogelo v Setlogelo 1914 AD 221; see also Grant-Dalton v Win and Others 1923 WLD 180 at 185.
4 G B Van Zyl, The Judicial Practice of South Africa Vol 1 4 ed at 401.

‘This rule, or order, for after all it is really an order, is granted only on an ex parte application.
This application should be by petition setting forth fully all of the circumstances of the
applicant’s cause of complaint, so as to induce the Court to grant his prayer. He must [show]
a good prima facie cause to entitle him to this rule, and a good reason must be assigned, or
[shown] for the urgency of the application, and why it should be ex parte instead of serving the
respondent with the notice of motion.’

[14] Since those observations were made, the practice relating to rules nisi has
been used in various contexts. The essential character and purpose of the
procedure, however, remains to ensure that (a) notice is given to an affected party;
(b) a prima facie case is made out for the relief sought; and (c) such relief may be
granted unless cause is shown why it should not be granted.5

[15] The authorities demonstrate that the use of the rule nisi procedure and its
adaptation to new circumstances has occurred in a manner consistent with the
principles of procedural law. In each instance, it has occurred in the context of
application proceedings, requiring the granting of a rule nisi to be supported by
evidence which warrants the granting of the rule.

The meaning and effect of the order of 23 March 2020
[16] In this Court, it was accepted that the case was already on the trial roll and
that the postponements were to successive dates on that roll.6 The case was
therefore before the trial court for adjudication of the quantum of the respondent’s
claim. Griffiths J would have had before him the case file for trial. This included

5 Safcor Forwarding (Johannesburg) (Pty (Ltd) v Chairman, National Transport Commission 1982 (3) SA 654
(AD) at 674H-675A; National Director of Public Prosecutions v Mohammed 2003 (4) SA 1 (CC) para 29; Du
Randt v Du Randt 1992 (3) SA 281 (E) at 289E-F; Ex parte St Clair Lynn 1980 (3) SA 163 (W) at 164E-H. It
should be noted that Du Randt was overruled by this Court in MV Snow Delta: Serva Ship Ltd v Discount Tonnage
2000 (4) SA 746 (SCA) para 6. Du Randt held that an interim interdict remains operative in the event of an appeal
noted against an order discharging the rule on the return date. This court held that this is incorrect. The proposition,
that a rule nisi should only be granted where there is sufficient justification in the evidence placed before the court,
was not disturbed. See also Ex parte Saiga Properties (Pty) Ltd 1997 (4) SA 716 (E) at 720G -721A.
6 The judgment of the high court confirms that the matter was postponed from time to time ‘on the trial roll’.

the pleadings, notices qualifying experts and minutes of pre-trial conferences,
including those of 16 and 19 March 2020.

[17] The trial, however, did not commence. No evidence was presented. No
affidavits to support the requested rule nisi were submitted. The introductory
portion of the order issued by Griffiths J states that he considered the documents
filed by the parties and then issued the order in terms acceptable to the legal
representatives who appeared before him. The documents referred to, doubtless,
are those which ordinarily serve before a trial judge, excluding those that would
need to be presented in evidence.

[18] The language employed in paragraphs 1 and 2 of the order is clear and
unequivocal. Those paragraphs are not operative orders. They record facts, and
no more. When read with what follows in the order, they provide a reason for the
issuing of the order. They state that the legal representatives of the parties had, as
between them, reached agreement on the quantification of the claim. In paragraph
3, it was specifically recorded that the MEC’s legal representatives did not have
instructions to settle the claim in those amounts.

[19] The meaning of these paragraphs could not be clearer. They mean that the
agreements recorded in the minutes of 16 and 19 March 2020, were not
agreements reached with authority to bind the MEC. The legal representatives
who appeared on 23 March 2020 had attended those pre-trial conferences. It is in
the light of these statements of fact that the minutes of 16 and 19 March 2020 are
to be read.

[20] In this Court, it was argued, on behalf of the respondents, that the minutes
must be interpreted in their broader context, as part of a sustained process of
discussion and negotiation between representatives who were acting within the

ambit of duly established mandates. On this basis, it was submitted that where it
was recorded that the parties had agreed, this meant an agreement binding the
principals had been reached. The argument, however, lost sight of the express
language employed in the rule nisi and the qualification inserted in paragraph 10
of the minute of 19 March 2020. It is in this language that the nature and effect
of the order of 23 March 2020 is to be found.

[21] Paragraph 10 of the minute records that ‘[t]he parties recorded that the
[MEC’s] legal representative will seek instructions to settle the [respondent’s]
claim on the agreed sum’. The word ‘parties’ as used in that paragraph, and indeed
throughout the minutes, can only refer to the legal representatives. To hold
otherwise would render the paragraph nonsensical. It would mean that the MEC,
having reached agreement on the sum, wished to afford the MEC’s representative
an opportunity to obtain an instruction to agree to what had already been agreed.

[22] The terms of the order issued by Griffiths J indicate that he understood that
the MEC’s legal representatives had reached agreement with their opponents on
the quantification of the respondent’s claim, but that they did not have the
authority to bind the MEC to that agreement. The representatives lacked actual
authority and had asserted the limits of their authority. It was to address this fact
that the rule nisi was issued. As is apparent from the terms of the rule nisi, it
required the Superintendent-General to appear in court on the return date and
show cause why the order should not be made. Provision was made for service of
the order upon the Superintendent-General, and a warning was sounded that upon
failure to appear, a final order would be made.

[23] It is important to highlight that the rule nisi called upon an official of the
principal litigant to show cause why he was not giving instructions in accordance
with the stance adopted by their legal representatives. Put differently, the order

called upon the litigant to explain why the matter was not settled on the terms
contained in the draft order.

[24] Two aspects bear emphasis. The first is that the trial issue concerned the
quantification of the claim. Such quantification would ordinarily involve
determination of the nature, extent and consequences of the harm suffered; the
nature and extent of medical treatment and assistance required in the future to
deal with the consequences of that harm; the reasonable costs of such treatment
and assistance; and the capitalisation and discounting of those costs. In this case
that would have required extensive expert evidence. None of that evidence was
before the court. All that was before the court was an agreement between the legal
representatives as to what was an appropriate assessment of the quantum. The
rule nisi called upon the MEC to show cause why the quantification of loss should
not be decided on the opinion of the legal representatives, without the court being
able to satisfy itself that such determination was a proper basis to decide the case.

[25] The second, and more significant, aspect concerns litigant autonomy. The
order required the litigant to provide some cognisable and reasonable explanation
as to why he should not be bound by that to which his representative had, without
authority, agreed.  It must be borne in mind that on three occasions when the
matter was postponed, on 15 October 2019, 28 November 2019 and 7 February
2020, it was for ‘settlement purposes.’ Brooks J specifically relied upon the fact
that the court had ‘directed’ a settlement process to support his finding that the
State Attorney was mandated and that an agreement had been reached. A court is
not entitled to direct parties to settle a dispute. It is a fundamental feature of our
adversarial system that the parties act autonomously. They are entitled to have
their justiciable disputes adjudicated by independent courts as guaranteed by s 34
of the Constitution. The parties to a dispute are primarily responsible for the
conduct of the litigation. Their access to and use of the courts is subject to

sanction only when it is vexatious or an abuse of process. Apart from the inherent
jurisdiction to protect the dignity of the courts and to impose punitive cost
sanctions for the manner in which litigation is conducted, the settlement of a
dispute is entirely in the hands of the parties.

[26] The granting of the rule nisi was, in these circumstances, neither
procedurally nor substantively within the power of the court. It could not,
therefore, have been confirmed on the return date. For this reason it is not
necessary to deal with the high court’s reasons. However, one aspect, alluded to
earlier, does require comment.

[27] The high court’s criticism of the MEC’s conduct in this matter was
trenchant. It concerned the belated substitution of attorneys and the filing of a
notice of intention to amend the plea. The high court considered that this conduct
was not in good faith. It appears to me that the court’s criticism was not without
cause. The MEC has since abandoned the intention to amend the plea. The high
court observed that the employment of the rule nisi procedure was not unique to
this matter. The learned judge stated that recalcitrance and delay was a feature of
the MEC’s conduct of medical negligence litigation pursued against the
Department. In many instances this involved the failure to give instructions
timeously to their legal representatives. It was this systemic failure that had
necessitated orders such as that issued in the present matter.

[28] It is lamentable that this situation persists despite the high court’s criticisms
raised in similar cases. There can be no doubt that the courts must intervene,
procedurally, to facilitate the finalisation of cases in the face of dilatory, and even
obstructive, conduct on the part of a litigant. However, the procedural
intervention employed in this matter is not appropriate. Rules 37 and 37A of the
Uniform Rules of Court deal extensively with case management of trial actions.

Their purpose is to expedite enrolment and finalisation of cases. If, in the course
of case management the case becomes settled, then an important object will have
been achieved. If it is not settled, for whatever reason, and the plaintiff is ready
to proceed, certification of the matter as trial ready and enrolment on trial would
allow the plaintiff, who is dominus litis, to prosecute their case.  It is then the
function of the trial court to deal with the evidence presented and adjudicate the
case. It is always within the authority of the trial court to deal with a dilatory and
obstructive defendant by way of an appropriate punitive costs order, including
costs de bonis propiis, where necessary.

[29] In the result the appeal must succeed. The MEC did not seek costs on
appeal and accepted that upon discharge of the rule nisi, no order for costs should
be made.

[30] The following order is issued:
1.
The appeal is upheld, with no order as to costs.
2.
The order of the high court is set aside and replaced with the following
order:

‘The rule nisi dated 23 March 2020 is discharged, with no order as to costs.’

_______________________
GG GOOSEN
ACTING JUDGE OF APPEAL

Appearances

For the appellant
P J De Bruyn SC with M Morgan
Instructed by

Norton Rose Fulbright South Africa Inc, Cape Town

Webbers Attorneys, Bloemfontein.

For the respondent
A G Dugmore SC with A Mdeyide
Instructed by

Sakhela Inc. Attorneys, East London

Eugene Attorneys, Bloemfontein.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL
FROM:
The Registrar, Supreme Court of Appeal
DATE:
24 October 2022
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.
Member of the Executive Council for Health, Eastern Cape v B M (213/2021) [2022] ZASCA 140 (24
October 2022)
The Supreme Court of Appeal (the SCA) today upheld an appeal against an order of the
Eastern Cape Division of the High Court, Mthatha (the high court) making a proposed draft
settlement order an order of court.
B M had instituted action against the MEC for Health, Eastern Cape (the MEC) for
damages arising from injuries sustained by her minor child during birth at a public health
facility in the Eastern Cape. In 2019, the MEC had conceded liability and a court order to
that effect was issued. The matter thereafter proceeded to determine the quantum of
damages due to B M in both her personal and representative capacities. Following a series
of pre-trial conferences, the high court issued a rule nisi on 23 March 2020 calling upon
the MEC to show cause on the return date why an order should not be issued in terms of a
proposed settlement order.
The MEC filed affidavits opposing the granting of the order contending, in essence, that
the agreements reached by the legal representatives were conditional upon instructions
being furnished. The high court, on 30 June 2020, rejected this version. It found that the
agreements struck by the legal representatives were firm and binding agreements
concluded in the context of a court-directed settlement process. The agreements finally

disposed of the disputes relating to the quantum of damages due to B M. The high court
therefore confirmed the rule nisi and issued an order as set out in the proposed draft.
In granting leave to appeal the SCA raised the question whether, in the light of the fact that
the MEC’s legal representatives did not have instructions to agree to the amounts included
in the proposed draft order, it was within the power of the court to grant the rule nisi.
The SCA found that, in the light of the statement of fact that the MEC’s legal
representatives were not authorised to agree, it was not within the power of the court to
issue the rule nisi. It was therefore not open to the high court to confirm the rule nisi on the
return date.
The SCA nevertheless lamented the ongoing failure by the MEC in that province, to fully
and properly engage with litigation matters such as the present case. It acknowledged the
necessity for court intervention to address dilatory and recalcitrant conduct by a litigant. It
found, however, that the intervention by the high court in this instance could not be
sustained. The appeal was therefore upheld and the high court’s order was set aside. It was
replaced with an order discharging the rule nisi with no order as to costs.
~~~~ends~~~~