Member of the Executive Council for Health, Eastern Cape Province and Another v Yonela Befile obo Sibabalwe Befile

The respondent, Yonela Befile, instituted an action in her personal capacity and in a representative capacity on behalf of her minor child, Sibabalwe Befile, for damages arising from sub‑standard care and negligence by employees of Cecilia Makiwane Hospital, which resulted in the child being born with spastic quadriplegic cerebral palsy on 15 November 2012. On 22 March 2022, the parties settled the merits of the claim by agreement, and the settlement was made an order of court, holding the defendants fully liable for damages suffered by the plaintiff in both her personal and representative capacities. The applicants (MEC for Health and Head of Department) later brought an application under Rule 42(1)(b) and the common law to rescind or vary that consent order, contending that the order mistakenly included liability for the mother’s personal claim, which they alleged had already prescribed at the time of settlement.

The application for rescission and variation of the consent order dated 22 March 2022 was dismissed with costs.

The judgment reinforces the finality and binding nature of consent orders in South African civil procedure and clarifies the narrow scope of Rule 42(1)(b). It confirms that parties cannot use rescission proceedings to reopen settled merits or introduce a plea of prescription after a matter has become res judicata, absent a court‑attributable error, fraud, or justus error. The case is particularly significant for medical negligence litigation involving state defendants, emphasizing accountability and procedural discipline.