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

On 15 November 2012, Sibabalwe Befile was born suffering from spastic quadriplegia cerebral palsy due to alleged substandard care and negligent conduct by employees at Cecilia Makiwane Hospital. The plaintiff, Yonela Befile, sued in both her personal and representative capacities on behalf of her child. On 22 March 2022, the parties entered into a settlement agreement which was made an order of court, wherein the defendants were held fully liable to pay the plaintiff in both her personal and representative capacities for all proven or agreed damages. The defendants were legally represented by both an attorney and counsel throughout. On 16 March 2022, the applicants' legal advisor had issued written authorization to the legal representatives to settle the merits. Subsequently, the parties prepared and signed a statement of agreed facts on 15 April 2024 confirming the settlement. The applicants then sought to rescind the consent order, arguing that they only intended to settle the child's claim and not the mother's personal claim, which they alleged had prescribed. No special plea of prescription had been raised in any of the three pleadings filed by the defendants during the litigation.

• Whether Rule 42(1)(b) of the Uniform Rules of Court permits rescission of a consent order on the basis of alleged patent error or omission
• Whether the alleged error or omission in the order dated 22 March 2022 is attributable to the court or to the parties
• Whether a party can rely on the common law doctrine of justus error to rescind a consent order in the absence of fraud or exceptional circumstances
• Whether a special plea of prescription can be raised for the first time after a matter has been settled by consent order and become res judicata
• Whether section 17(2) of the Prescription Act grants a court discretion to allow prescription to be raised at any stage, including after a consent order has been granted
• Whether allowing rescission would undermine the principle of finality of litigation and res judicata

The application for rescission is dismissed with costs.

A consent order can only be rescinded under Rule 42(1)(b) where there is an ambiguity, patent error or omission attributable to the court itself, not to the parties' agreement. Where parties conclude a settlement agreement that is made an order of court, and both parties were legally represented, the order becomes res judicata and cannot be rescinded merely because one party alleges it did not intend to settle certain aspects of the claim. The discretion granted by section 17(2) of the Prescription Act to allow prescription to be raised at any stage of proceedings does not extend to permitting a special plea of prescription to be raised after a matter has been settled by consent order and become res judicata. Once a court pronounces a judgment or order, it becomes functus officio, and the principle of finality of litigation requires that orders not be lightly set aside. The common law doctrine of justus error permitting rescission of orders can only be invoked in rare and exceptional circumstances, and requires demonstration of fraud or material mistake vitiating consent.

The court observed that allowing the rescission would create a dangerous and slippery precedent that would make consent orders vulnerable to being set aside based on litigants' whims or when they decide to change their minds or legal representatives. The court noted that the interpretation the applicants sought to impute to section 17(2) of the Prescription Act was absurd and would lead to undesirable results. The court commented that where legal representatives have failed to explain whether they had mandate to settle on behalf of their client, it would be contrary to jurisprudence on consent orders to simply accept that they lacked authority. The court also observed that if an error occurred when an order was granted by consent, particularly where a party was represented by both an attorney and advocate, there was very little room for mistakes and any such error should be properly explained in affidavit form.

This case reinforces the fundamental principle of finality of litigation in South African law and the limited circumstances under which consent orders can be rescinded. It clarifies that Rule 42(1)(b) of the Uniform Rules only permits rescission where an ambiguity, patent error or omission is attributable to the court itself, not to the parties' agreement. The judgment emphasizes that once parties have concluded a settlement agreement that has been made an order of court, they cannot subsequently resile from it simply by alleging they did not intend to settle certain aspects of the claim, particularly where they were legally represented and had given written authorization to settle. The case also clarifies the limits of section 17(2) of the Prescription Act, holding that the discretion to allow prescription to be raised at any stage does not extend to matters that have become res judicata through consent orders. It serves as a warning against creating precedents that would make consent orders vulnerable to the whims of litigants who change their minds after settlement. The judgment protects the integrity of settlement agreements and consent orders in medical negligence litigation.