THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable
Case No: 432/2016

In the matter between:

ELMARIE SLABBERT
APPELLANT

and

THE MEMBER OF THE EXECUTIVE COUNCIL
FOR HEALTH AND SOCIAL DEVELOPMENT OF
GAUTENG PROVINCIAL GOVERNMENT
RESPONDENT

Neutral citation:
Slabbert v MEC for Health and Social Development, Gauteng
(432/2016) [2016] ZASCA 157 (3 October 2016)

Coram:

Mpati AP, Petse, Willis, Dambuza JJA and Potterill AJA

Heard:

19 September 2016

Delivered:

3 October 2016

Summary: Civil procedure – Compromise agreement made an order of court – Grounds
for rescinding compromise are only fraud or justus error provided the mistake (error)
vitiated true consent and did not merely relate to motive or to the merits of the dispute –
Or mistake common to the parties – Court has no discretion to set aside consent order if
underlying compromise is not set aside – Compromise agreement and consent order
not rescinded.

_____________________________________________________________________

ORDER
______________________________________________________________________
On appeal from: Gauteng Division of the High Court, Pretoria (Molopa-Sethosa J,
sitting as court of first instance).
1. The appeal is upheld with costs including the costs of two counsel.
2. The order of the court a quo is set aside and substituted with the following order:
‘The application for rescission of the order made on 4 May 2015 is dismissed with costs,
including the costs of two counsel.’

______________________________________________________________________

JUDGMENT
______________________________________________________________________

Potterill AJA (Mpati AP, Petse, Willis and Dambuza JJA concurring):

[1] This is an expedited appeal against an order of the Gauteng Division of the High
Court, Pretoria (Molopa-Sethosa J) wherein rescission and the setting aside of a
consent order was granted. The court also mero motu ordered a rescission and the
setting aside of the underlying compromise agreement. The crux of the matter is
whether the rescission and setting aside of the order and agreement are appealable
and were competent in terms of Uniform rule 42 and the common law. The appeal
necessarily lies against both the rescission of the court order and the setting aside of
the compromise agreement. The appeal is with leave of the court a quo.

[2] It is necessary to set out the facts leading up to the conclusion of the
compromise agreement and it being made an order of court. The appellant (plaintiff in
the court a quo), Ms Elmarie Slabbert (Slabbert) in her personal and representative
capacity, issued summons, for payment of damages arising from injuries sustained

before, during and after her son’s birth on 10 May 2003. In the particulars of claim it was
averred that the medical staff of the Edenvale and Johannesburg General Hospitals,
employed by the respondent (defendant in the court a quo), the Member of the
Executive Council for Health and Social Development of the Gauteng provincial
government (MEC), acted negligently resulting in her minor son suffering global hypoxic
ischemic epileptic encephalopathy and brain damage. This, in turn, resulted in her son
suffering the insult, dystonic athetoid quadriplegic cerebral palsy with microcephaly and
convulsions.

[3] After the close of pleadings and pursuant to a pre-trial conference on 7 July
2014, the parties agreed to separate the merits from the quantum. A further pre-trial
conference was held on 21 April 2015 and subsequent thereto the MEC’s counsel
furnished the respondent with a memorandum on the issue of liability. Counsel for the
MEC thereafter received a written instruction from the MEC to settle the issue of liability.
On 28 April 2015 the MEC’s counsel approached Slabbert’s counsel and offered the
following compromise: liability is compromised with the MEC undertaking to pay 90 per
cent of Slabbert’s proved or agreed damages in Slabbert’s personal and representative
capacities. The MEC’s offer of compromise was accepted by Slabbert’s attorney. The
MEC also consented to the costs of Slabbert’s four expert witnesses and costs of senior
and junior counsel. In the rescission application, the MEC chose not to set out any facts
or the basis on which they offered to compromise. Slabbert had, at the time of the
application for rescission, called on the MEC to provide the memorandum motivating
why liability should be conceded, but the MEC refused to do so, relying on privilege. On
4 May 2015, counsel for Slabbert and the MEC attended court where the separation of
quantum and merits and the offer of compromise were made orders of court.

[4] A pre-trial conference on the issue of quantum was held on 21 May 2015 with the
pre-trial minute reflecting that that was the only issue left for determination. The MEC’s
attorney requested Professor Smuts, a Paediatric Neurologist, to provide the MEC with
a medico-legal opinion and report for purposes of quantum. A further pre-trial
conference pertaining to quantum was held on 30 March 2016 with the trial scheduled

to proceed on 18 April 2016. On 13 April 2016, the MEC terminated the mandate of the
State Attorney and her counsel. The record is silent on the reasons for this. The MEC
then appointed the current attorney and counsel.

[5] On the morning on which the trial relating to quantum was to commence, the
MEC delivered an application seeking to rescind the two court orders. The one court
order to be rescinded is not relevant to this appeal, but the other was for rescission of
the court order in terms of which the compromise agreement was made an order of
court.

[6] In the application for rescission the MEC relied on the report of Prof Smuts which
was alleged to contain new evidence that had not been available to her prior to the
conclusion of the compromise agreement. This report also disclosed that Prof Smuts
had treated the minor child. Prof Smuts disclosed to Slabbert that the staff at the
hospitals did not cause the child’s condition. She had not disclosed this opinion to the
MEC. Slabbert had also not disclosed the report of her expert, Dr van Rensburg dated
29 Ocotber 2010 (first report). This report reflected a different opinion on the basal
ganglia to that contained in the expert summary, a discrepancy that required clarification
through cross-examination.

[7] An agreement of compromise creates new rights and obligations as a
substantive contract that exists independently from the original cause.1 The purpose of
a compromise is twofold: (a) to bring an end to existing litigation and (b) to prevent or
avoid litigation.2 When a compromise is embodied in an order of court the order brings
finality to the lis between the parties and it becomes res judicata.3 The court order
changes the terms of a settlement agreement to an enforceable court order – through

1 Road Accident Fund v Ngubane [2007] ZASCA 114; 2008 (1) SA 432 (SCA) para 12.
2 Vena v Port Elizabeth Divisional Council 1933 EDL 75 at 87.
3 Gollach & Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd & others 1978 (1) SA 914
(A) at 922C.

execution or contempt proceedings.4 Thus, litigation after the consent order will relate to
non-compliance with the consent order and not the underlying dispute.

[8] This being said, a transactio (compromise) is made by consent between parties
and like any contract or order of court made by consent, it may be set aside on the
ground that it was fraudulently obtained. It may also be set aside on the ground of justus
error, ‘provided that such error vitiated true consent and did not merely relate to motive
or to the merits of a dispute which it was the very purpose of the parties to
compromise.’5 A compromise agreement may also be set aside if the parties to the
agreement laboured under a common mistake.6 However, a unilateral mistake on the
part of one party that does not flow from a misrepresentation by the other does not allow
for the former party to resile from a consent agreement.7 The question thus is whether
one of these grounds exists for the MEC to resile from the compromise agreement.

[9] The court a quo accepted that there was new evidence that only came to light
after the compromise agreement had been concluded. But for the following reasons,
this factual finding is incorrect. It is common cause that prior to the compromise
agreement Slabbert had served and filed four expert notices and summaries; the MEC
had filed none. Slabbert’s trial bundle with all the records from which these experts
compiled their reports was in the possession of the MEC, since it was at a hospital
under her supervision, prior to the compromise agreement being concluded. It is
unsettling that the deponent to the founding affidavit can aver that there was new
evidence proffered by Prof Smuts that the child suffered intrauterine retardation. This
fact was pertinently raised in the expert summaries of Dr Langenegger, a gynaecologist
and obstetrician; Dr Johan Smith, a neonatologist; and Dr van Rensburg, a neuro-
radiologist. It is similarly untrue that the MEC was unaware of the fact that the umbilical
cord was tied twice around the child’s neck. This was set out in the particulars of claim
and in the expert report of Prof Viljoen. It is also unfounded that the MEC was unaware

4 Eke v Parsons [2015] ZACC 30; 2016 (3) SA 37 (CC) para 31.
5 Gollach (above) at 922H-923A.
6 Tshivhase Royal Council & another v Tshivhase & another [1992] ZASCA 185; 1992 (4) SA 852 (A) at
863.
7 Botha v Road Accident Fund [2016] ZASCA 97 para 9.

that the child was born microcephaly because it is set out in Dr van Rensburg’s expert
summary. The summary notes that the involvement of the white matter of the
intrapartum suggested the presence of a prolonged hypoxic injury at an early
gestational age, probably around the beginning of the third trimester, and therefore
before birth and before labour. He, nevertheless, persisted that despite this the
condition of the child was due to a hypoxic insult at full term when a prior priming injury
was present. Similarly, Dr Langenegger expressly recorded that at 34 weeks gestation,
the intrauterine growth retardation was due to antenatal (prior to birth) neurological
damage. Despite this, he was of the opinion that as a result of the failures by medical
staff of the MEC, the foetus was exposed to partial prolonged hypoxia and acidosis.
This evidence is not new, it is merely evidence which the MEC or her representatives
did not consider properly.

[10] The court a quo was required to apply the Plascon-Evans rule8 in accepting the
version of Slabbert in so far as there was any dispute of fact pertaining to the reduced
foetal movements towards the end of the pregnancy. Prof Smuts, in her report, recorded
reduced foetal movements towards the end of the pregnancy. She was not in
possession of any of Slabbert’s experts’ summaries when she compiled her report.
There was no reference to reduced foetal movements towards the end of the pregnancy
in the records or in the summaries. Prof Smuts did not disclose from where she derived
this information because she did not obtain it first-hand. The reason for this was that
she did not attend to Slabbert during her pregnancy. In answer to Prof Smuts’ averment,
Slabbert stated under oath that this statement by Prof Smuts is factually incorrect as
she detected no decrease in foetal movements towards the end of the pregnancy. In
applying the Plascon-Evans rule, the version of Slabbert was to be accepted and the
court a quo incorrectly found that there was new evidence of reduced foetal movements
towards the end of the pregnancy.

8Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E-635D; Thint
(Pty) Ltd v National Director of Public Prosecutions & others; Zuma & another v National Director of Public
Prosecutions & others [2008] ZACC 13; 2009 (1) SA 1; 2008 (2) SACR 421 (CC) para 8-10; National
Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (1) SACR 361 (SCA) para 26.

[11] In any event, Prof Smuts was at all material times in the joint employ of the
University of Pretoria and the MEC at the Pretoria Hospital (now the Steve Biko
Academic Hospital). When she treated the child, it was in her capacity as a clinician at
the hospital and her records were at all relevant times under the control of and available
to the MEC. The new argument raised by counsel for the MEC that only the records of
Edenvale and Johannesburg hospitals were obtained as being relevant to the cause of
action and that the MEC was unaware of the records at the Pretoria Hospital is factually
incorrect. Slabbert discovered the records of Prof Smuts at the Pretoria Hospital prior to
the compromise agreement being concluded. Even if Slabbert had not discovered these
records, the MEC cannot rely on ignorance of its own records which are under her
control, merely because they were at another hospital.

[12] During the course of argument, the highwater mark for the MEC was the non-
disclosure by Slabbert of the first report by Dr van Rensburg prior to conclusion of the
compromise agreement. This non-disclosure rendered the opinion of Dr van Rensburg
pertaining to the basal ganglia and the timing of the brain injury suspect. In his
supplementary affidavit he explained that when he compiled the first report he assumed
that the minor child was born premature as he was not given details of the course of
Slabbert’s pregnancy or the child’s birth. He recorded that the basal ganglia show
normal volumes on the assumption that the child was born prematurely. Dr Lautenbach
then almost immediately phoned him and informed him that the child was a full term
baby delivered by C-section, that there were signs of foetal distress and that after birth
he required resuscitation. Dr van Rensburg then reviewed his magnetic resonance
imaging (MRI) films and concluded that the basal ganglia appeared shrunken and
smaller than expected for a child born full term. He accordingly removed the first report
from the file and his database.  In February 2015 he was again contacted by Dr
Lautenbach who informed him that there was evidence that the child had suffered from
hypoglycaemia after birth. He then reviewed the MRI films and noticed that the pulvinar
on both sides showed distinct signal increase which is an abnormality associated with
neonatal hypoglycaemia. He included this in his report. This third report was what his
expert summary was based on.

[13] The irony is that Prof Smuts attached the first report to her affidavit; it was thus in
the possession of the MEC, leaving no room for fault to be attributed to Slabbert.  But,
there was no duty on Slabbert to disclose this report; it was no longer in the possession
of Dr van Rensburg and Slabbert did not rely on it. She simply did not rely on it because
the opinion came from an incorrect premise. The explanation proffered for the difference
in the first report and the expert summary pertaining to the basal ganglia is undisputed.
The court a quo erred in not accepting this undisputed version.

[14] There was also no duty on Slabbert to disclose to the MEC that Prof Smuts had
expressed an opinion contrary to that expressed by the expert witnesses engaged by
her. It was the MEC’s duty to investigate the claim and obtain its own expert opinions.
Yet no experts were consulted before the MEC made the offer of compromise pertaining
to the merits. The MEC was in possession of all the relevant clinical records for the
merits in respect of which the involvement of Prof Smuts had been disclosed. This fact
is obvious because Prof Smuts was thereafter approached by the MEC’s
representatives for her historical records and reports for purposes of quantum. The
MEC and her representative’s duty of care must be exercised from the outset. That they
did not consult Prof Smuts pertaining to merits, but only for purposes of quantum, is
indicative of the fact that they did not exercise care in defending the claim, or the
representatives of the MEC made a mistake. If proper attention had been given to the
matter the ‘new evidence’ would have been seen for what it really was – evidence that
had been available – prior to the conclusion of the compromise agreement. This ‘new’
evidence was also thoroughly dealt with by Slabbert’s experts in coming to their
conclusions.

[15] The compromise agreement thus cannot be set aside on the basis of a mutual
error as there was no mutual error. The MEC cannot rely on her own mistake to avoid a

contract which was in any event initiated by her.9 This unilateral mistake accordingly did
not amount to a justus error.  As stated by Christie:10
‘However material the mistake, the mistaken party will not be able to escape from the contract if
his mistake was due to his own fault. This principle will apply whether his fault lies in not
carrying out the reasonably necessary investigations before committing himself to the contract
that is, failing to do his homework’. (Footnote omitted.)

[16] The court a quo was correct that a court cannot ignore facts placed before it, but
these facts must sustain one of the established grounds on which a compromise
agreement can be rescinded. Although a High Court has inherent discretion, it can
never exercise it against recognised principles of substantive law. Our constitutional
dispensation does not afford courts a carte blanche to ignore substantive law and grant
orders couched as being in the ‘interests of justice’. Moreover, certainty and finality are
key elements of justice. Parties to a compromise agreement accept an element of risk
that their bargain might not be as advantageous to them as litigation might have been.
This element of risk is inherent in the very concept of compromise. It, however, does not
afford parties the right to go back on the bargain for unilateral mistakes. Settlement
agreements have as their underlying foundation the benefit of orderly and effective
administration of justice. Courts cannot allow for consent orders to be set aside for
reasons not sanctioned by applicable legal principles.

[17] A court also does not have a discretion to set aside a consent order where there
are no grounds for setting aside the underlying agreement of compromise pursuant to
which the consent order was made. In Botha this court found as follows (para 13):
‘In Theron NO v United Democratic Front (Western Cape Region) & others 1984 (2) SA 532 (C)
at 536G this court held that a court has a discretion whether or not to grant an application for

9 Botha (above) para 11; and Patcor Quarries CC v Issroff and others 1998 (4) SA 1069 SECLD at
1085A-E.
10 R H Christie & G B Bradfield Christie’s the Law of Contract in South Africa 6 ed (2011) at 329-330. See
also these authorities therein cited Wiggins v Colonial Government (1899) 16 SC 425 at 429; Acacia
Mines Ltd v Boshoff 1957 (1) SA 93 (T) at 101H-102B; Diedericks v Minister of Lands 1964 (1) SA 49 (N)
at 57D-H; Springvale Ltd v Edwards 1969 (1) SA 464 (RA) 468 at 470H; Osman v Standard Bank
National Credit Corpn Ltd 1985 (2) SA 378 (C) at 388F-I.

rescission under rule 42(1). But where, as here, the court’s order recorded the terms of a valid
settlement agreement, there is no room for it to do so.’ (Footnote omitted.)

[18] On behalf of the MEC it was argued that the orders granting rescission were not
appealable. The issue of the appealability of the order, irrespective of leave being
granted by the court a quo, is a preliminary issue in any appeal, but in the light of the
context of this matter and my conclusion, it can conveniently be dealt with at this late
stage.

[19] The rescission orders in form appear to be interlocutory and prima facie not of
final effect. On closer examination, the rescission of the compromise agreement is,
however, final in substance and effect. To determine whether an interim order is
appealable regard must be had to the effect of the order rather than its mere appellation
or form.11 In the words of Harms AJA in Zweni v The Minister of Law and Order 1993 (1)
SA 523 (A) at 531J-532A:
‘The emphasis is now rather on whether an appeal will necessarily lead to a more expeditious
and cost-effective final determination of the main dispute between parties and, as such, will
decisively contribute to its final solution.’
The question of the appealability of an order where proceedings have not been finally
determined was discussed in National Director of Public Prosecutions v King [2010]
ZASCA 8; 2010 (2) SACR 146 (SCA) where Nugent JA said the following (paras 50-51):
‘There will be few orders that significantly affect the rights of parties concerned that will not be
susceptible to correction by a court of appeal. In Liberty Life Assosciation of Africa Ltd v Niselow
(in another court), which was cited with approval by this court in Beinash v Wixley 1997 (3) SA
721 (SCA), I observed that, when the question arises whether an order is appealable, what is
most often being asked is not whether the order is capable of being corrected, but rather
whether it should be corrected in isolation and before the proceedings have run their full course.
I said that two competing principles come into play when the question is asked. On the one
hand justice would seem to require that every decision of a lower court should be capable not
only of being corrected but of being corrected forthwith and before it has consequences, while

11 South African Motor Industry Employer’s Association v South African Bank of Athens Ltd 1980 (3) SA
91 (A) at 96H.

on the other hand the delay and inconvenience that might result if every decision is subject to
appeal as and when it is made might itself defeat the attainment of justice.
. . . I pointed out in Liberty Life [Association of Africa Ltd v Niselow (1996) 17 ILJ 673
(LAC)] that while the classification of the order might at one time have been considered to be
determinative of whether it was susceptible to an appeal the approach that has been taken by
the courts in more recent times has been increasingly flexible and pragmatic. It has been
directed more to doing what is appropriate in the particular circumstances than to elevating the
distinction, between orders that are appealable and those that are not, to one of principle.’

[20] In this matter the rescission orders will stand unless upset on appeal.  As these
orders were wrongly granted, they should be corrected forthwith and before the orders
have consequences. The court a quo cannot change the consequences of the orders
because the compromise agreement and consent order would have been laid to rest by
the rescission orders. If the orders are not set aside, the consequences will, in effect, be
to send the parties to ventilate an issue that has been lawfully settled by compromise in
a costly, protracted trial. ‘A compromise once lawfully struck is very powerfully
supported by the law, since nothing is more salutary than the settlement of lawsuits’.12
Accordingly, the rescission of the consent order must be set aside because the court a
quo did not have a discretion to set it aside in circumstances where there was no
justification in law to set aside the compromise agreement. It would, thus, in these
circumstances be appropriate to adjudicate the appeal as the order being appealed
against has final effect.

[21] The following order is made:
1. The appeal is upheld with costs including the costs of two counsel.
2. The order of the court a quo is set aside and substituted with the following order:
‘The application for rescission of the order made on 4 May 2015 is dismissed with costs,
including  the costs of two counsel.’

12 PL v YL 2013 (6) SA 28 (ECG) (also reported Ex parte: PJLG & another; In re PJLG [2013] 4 All SA 41
(ECG)) para 34 citing Ulric Huber Jurisprudence of My Time 3.15.15. (Sir Percival Gane translation),
quoted with approval in Eke (above) para 22. (My emphasis.)

________________
S Potterill
Acting Judge of Appeal

APPEARANCES:

For the Appellant:

N G D Maritz SC (with him M M Lingerfelder)
Instructed by:

Joseph’s Inc, Johannesburg

McIntyre & van der Post, Bloemfontein

For the Respondent:

V Notshe SC (with him N Manaka)
Instructed by:

Diale Mogashoa Attorneys, Pretoria

Honey Attorneys, Bloemfontein