MEC for Health, Eastern Cape v Khumbulela Melane and Special Investigating Unit v MEC for Health, Eastern Cape & Khumbulela Melane

Ms Melane sued the MEC for Health for damages of R12,240,000 (later increased to R40,200,000) for brain damage suffered by her child L during labour allegedly due to negligence at All Saints and Nelson Mandela Hospitals. The defendant filed a plea in September 2015. The defendant failed to comply with discovery notices and an order compelling discovery dated 28 August 2017. On 12 September 2017, the defendant's defence was struck out for non-compliance. On 22 May 2018, judgment was granted on liability. On 11 February 2019, judgment on quantum was granted for R34,233,344 plus additional amounts. The defendant was represented on a "watching brief" at both hearings but did not actively participate. The MEC launched a rescission application on 15 July 2019. The SIU launched its own rescission application on 28 July 2020, alleging maladministration by the State Attorney's office in handling the case.

• Whether the orders of 28 August 2017 and 12 September 2017 were erroneously sought or granted due to procedural irregularities
• Whether orders granted in consequence of irregular orders are themselves liable to be set aside
• Whether late delivery of affidavits should be condoned
• Whether the SIU has locus standi to intervene and rescind orders on grounds of maladministration
• Whether the SIU application is moot in light of the MEC's successful rescission
• Whether the SIU should be joined as a second defendant in the main action

1. MEC application succeeds: all orders dated 28 August 2017, 12 September 2017, 22 May 2018 and 11 February 2019 rescinded and set aside; the MEC's plea reinstated; costs in the cause. 2. SIU application dismissed with the SIU to pay Ms Melane's costs of opposition. 3. Parties directed to appear before Van Zyl DJP for case management conference to determine future conduct of the main action.

An order is erroneously granted within Rule 42(1)(a) where there are procedural irregularities in obtaining it. Such irregularities include: obtaining an order on a date different from that specified in the notice; failing to afford the required time period for compliance with orders; and relying on defectively commissioned affidavits without condonation. Where subsequent orders are granted in consequence of an irregular initial order, those subsequent orders have no independent legal existence and must also be rescinded when the initial order is set aside, regardless of whether they are specifically challenged. An application becomes moot and cannot succeed where the relief sought has already been achieved through other proceedings.

The court made several non-binding observations: (1) appearance on a "watching brief" for a party whose defence has been struck out is inconsequential under Rule 42(1)(a) as the rule does not protect litigants who elect to be absent after being afforded due process; (2) parties cannot arrogate to themselves the right to "tacit abandonment of the strict procedures of Rule 6" - time limits in the Rules are based on fairness and avoiding litigation by ambush; (3) the State has "a higher duty...to respect the law to fulfil procedural requirements and to tread respectfully when dealing with rights" per Kirland Investments; (4) the court expressed (without deciding) doubts about previous judgments in the Division questioning SIU's locus standi to intervene on maladministration grounds; (5) it is not necessary to establish good cause for Rule 42(1)(a) to apply, only that an order was erroneously sought or granted.

This case is significant for: (1) illustrating the strict approach courts take to procedural compliance in obtaining default judgments, particularly regarding notice requirements and time periods; (2) establishing that orders obtained in consequence of irregular orders fall away even if not specifically challenged; (3) clarifying the limits of SIU intervention in concluded litigation; (4) emphasizing the State's heightened duty to comply with procedural requirements; (5) demonstrating judicial case management powers to prevent dilatory litigation tactics; and (6) reinforcing that parties cannot contract out of the Rules of Court through informal agreements.