Member of the Executive Council for Health and Social Development of the Gauteng Provincial Government v Motubatse and Another

The respondents, as parents and guardians of their minor child, instituted a damages claim of R29 158 000 against the MEC for Health and Social Development, Gauteng, alleging that negligent conduct by provincial health employees during birth caused the child to suffer cerebral palsy. The MEC defended the claim but failed to comply with discovery obligations under Uniform Rule 35 despite a court order compelling discovery. As a result, her defence was struck out and the respondents were granted leave to apply for default judgment. The MEC then applied for rescission of the striking-out order and for condonation of her non-compliance, explaining that hospital records were still being located and asserting a bona fide defence. The High Court (court of first instance) granted rescission. The respondents successfully appealed this rescission to the full court of the Gauteng Division, which set aside the rescission. The MEC sought special leave to appeal to the Supreme Court of Appeal (SCA), together with condonation for multiple procedural defaults.

Condonation was granted to both parties for late filings. The application for leave to appeal was reinstated and special leave to appeal was granted. The appeal was upheld. The order of the full court was set aside and replaced with an order striking the appeal off the roll with costs. The MEC was ordered to pay the costs of the appeal, except for costs relating to the respondents’ late filing of heads of argument, which were borne by the respondents.

The judgment reaffirms and strengthens South African procedural law by confirming that rescission orders are interlocutory and not appealable. It underscores the continued authority of the Zweni criteria in determining appealability in the Supreme Court of Appeal and cautions against unjustified reliance on a broad 'interests of justice' standard. The case is significant for upholding the doctrine of precedent, preventing procedural uncertainty, and ensuring uniformity in appellate practice.