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

The respondents instituted a damages claim of R29,158,000 against the MEC on 22 May 2015 in their capacity as parents and guardians of their minor child, alleging that the child suffered cerebral palsy due to negligence of the MEC's employees during birth. The MEC defended the matter and filed a plea denying liability. The respondents obtained an order in terms of rule 35(1) for discovery of hospital records and ECG records, which the MEC failed to produce. After obtaining a compelling order under rule 35(3), which the MEC also failed to comply with, Van der Linde J granted an order striking out the MEC's defence on 18 April 2017. On 11 November 2018, the eve of the respondents' application for default judgment, the MEC applied to rescind the striking-out order and condone non-compliance. The court of first instance granted the rescission. The respondents successfully appealed to the full court of the Gauteng Division, which set aside the rescission order. The MEC then sought special leave to appeal to the Supreme Court of Appeal.

• Whether a rescission order is appealable or whether it is interlocutory in nature
• Whether special leave to appeal should be granted
• Whether condonation should be granted for various procedural non-compliances including late filing of the notice of appeal, record of appeal, and heads of argument
• Whether the full court erred in hearing an appeal against a rescission order
• What special circumstances exist to warrant intervention by the Supreme Court of Appeal
• What costs order should be made where a successful party has flagrantly violated court rules

1. Condonation granted to the MEC for late filing of the notice of appeal, record of appeal, and application to reinstate the application for leave to appeal and heads of argument. 2. Condonation granted to the respondents for late filing of their heads of argument. 3. The application for leave to appeal reinstated. 4. Special leave to appeal granted. 5. The appeal upheld with the MEC to pay the costs of the appeal, save for the costs of the respondents' late filing of their heads of argument, which are to be borne by the respondents. 6. The order of the full court set aside and replaced with: 'The appeal is struck off the roll with costs'.

A rescission order is interlocutory in nature and not appealable as it does not have final and definitive effect on the rights of parties, but merely returns parties to the position they were in before the order being rescinded was granted. Where a lower court incorrectly holds that a rescission order is appealable contrary to binding precedent, this constitutes a discrete point of law of great importance to the public that offends the doctrine of precedent and invites legal chaos, thereby constituting special circumstances warranting the granting of special leave to appeal. The Zweni triad remains the appropriate test for determining appealability of interlocutory orders, and any deviation must be clearly defined and justified. The 'interests of justice' test does not displace the Zweni requirements but operates within them, and in the case of purely interlocutory orders that determine no definitive rights, it is not in the interests of justice to find such orders appealable. Good prospects on the merits (particularly where special circumstances exist) may compensate for poor explanations for delay in applications for condonation.

The Court observed that ignorance of the rules and procedures of the Court is no excuse for failing to comply with them. The Court noted that the explanations for delays were 'far from satisfactory', 'excessive', and 'woefully inadequate', and that there was 'a disturbing pattern' of non-compliance with court rules both in the high court and in the Supreme Court of Appeal. The Court commented that ordinarily, on such facts regarding poor compliance and inadequate explanations, that would be the end of the matter and the applications would be refused. The Court noted that depriving successful parties of costs can depend on circumstances such as the conduct of parties and their legal representatives, whether a party achieves only technical success, the nature of the litigants and the nature of the proceedings. The Court expressed that this was an appropriate case to mark its displeasure by depriving a successful party of costs due to flagrant non-compliance with court rules.

This case reaffirms the fundamental principle of South African civil procedure that rescission orders are interlocutory in nature and not appealable. It emphasizes the importance of the doctrine of precedent as a manifestation of the rule of law itself, and demonstrates the Supreme Court of Appeal's willingness to intervene where lower courts deviate from binding precedent in a manner that creates legal uncertainty. The case also demonstrates that even where a party is successful on appeal, courts may exercise their discretion to deny costs where there has been flagrant non-compliance with court rules. The judgment provides important guidance on what constitutes 'special circumstances' for purposes of granting special leave to appeal, particularly where a lower court has incorrectly applied or ignored binding precedent. The case reinforces that the Zweni triad remains the appropriate test for appealability of interlocutory orders, and that the 'interests of justice' consideration does not displace this test but operates within it.