SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)

Not Reportable
Case no: CA&R 68/2023
In the matter between:
HA V[...] N[...] N.O
(obo Estate late JCL T L[...] ) Appellant/Respondent in Cross -Appeal

and

THE MEC FOR HEALTH:
NORTHE RN CAPE PROVINCE Respondent /Appellant in Cross -Appeal

Neutral citation: HA V[...] N[...] N.O (O.B.O Estate Late JCL L[...]) v The MEC for
Health, Northern Cape Province (Case no : CA&R 68/2023 ).
Coram: Tlaletsi JP , Mamosebo ADJP et Lever J
Delivered : 02 May 2025

JUDGMENT

Tlaletsi JP and Lever J

1. The appellant in the main appeal is the Estate of the late J[...] C[...] L[...] T[...]
L[...]. The said estate is represented by its duly appointed executor, Mr HA V[...]
N[...] N.O. The said JCLT L[...] (hereinafter referred to as “J[...]”) passed away on
16 June 2024. Prior to his passing , he was represented in these proceedings by
his mother. For ease of reference, and to avoid confusion owing to the cross -
appeal , the Estate shall be referred to as the “plaintiff” in this judgment. For the
same reasons, the respondent in the main appeal will be referred to as the
“defendant” in this judgment.

2. The original claim was for medical negligence against the defendant arising out
of the mismanagement of J[...]’s birth by servants of the defendant on 11 July
2011, which left him with a brain injury which led to quadriparetic cerebral palsy.
The merits of the plaintiff’s claim were settled on 02 November 2015. The
damages remained to be ascertained, which is what the court a quo dealt with.
O’Bri en AJ, for the court a quo , handed down a judgment dated 01 July 2022.

3. The defendant sought leave to appeal th at judgment. Subsequent to the
application for leave to appeal brought by the defendant, the plaintiff sought: the
reconsideration of the costs order in the 01 July 2022 judgment, due to
information that could not be disclosed to the court before judgment, being the
plaintiff’s secret offer of the 21 October 2019; furthermore, and by way of an
application, an order by virtue of the provisions of section 18(3) of the Superior
Courts Act1, to implement the order granted in the July 2022 judgment pending
the finalisation of any application or petition for leave to appeal and any
subsequent appeal; and a conditional application for leave to appeal. The
defendant opposed these applications as brought by the plaintiff .

4. The section 18(3) urgent application came before Phats hoane DJP on 29
September 2022. The matter stood down until 30 September 2022 , when the
parties took what appears to have been intended as an interim order by consent.

5. The order of 30 September 2022 , taken by consent , provided for what can only
be considered as interim payments to be paid on specified dates totalling some
R6 504 153.00 (six million five hundred and four thousand one hundred and fifty -
three Rand). The said Order also provided the date on which the defendant was

1 10 of 2013.
to file his answering papers in the section 18(3) application as well as the date
that the plaintiff was to file her replying affidavit and inter alia provided for an
expedited date to be arranged with the Judge President for the argument of the
section 18(3) application.

6. The opposing papers in the section 18(3) application , as well as in the
reconsideration of costs application , were subsequently filed. After the replying
affidavits were filed in both applications, the section18(3) application was heard
by O’Brien AJ on 06 -07 December 2022. Judgment in the section 18(3)
application was handed down on 24 February 2023. Judgment in the
reconsideration of costs application was also handed down on 24 February 2023.

7. O’Brien AJ dismissed the section 18(3) application and ordered that each party
pay their own costs. O’Brien AJ further ordered that attorney and own client costs
may not be recovered from the capital amount awarded to the plaintiff.

8. The judgment that dealt with the reconsideration of costs application also dealt
with the defendant’s application for leave to appeal and the plaintiff’s conditional
application for leave to appeal. O’Brien AJ dismissed the reconsideration of costs
application with costs; corrected certain arithmetical problems in the order
dealing with the quantum award; dismissed the defendant ’s application for leave
to appeal the quantum judgment with costs; and dismissed the plaintiff’s
conditional application for leave to appeal with costs.

9. The defendant’s petition for leave to appeal was dismissed by the Supreme
Court of Appeal on 20 July 2023.

10. Following the judgments of O’Brien AJ in both the section 18(3) application and
the reconsideration of costs application, the plaintiff filed an application for leave
to appeal , and the defendant filed a conditional application to cross -appeal.
O’Brien AJ delivered his judgment in these applications for leave to appeal on the
07 December 2023 and made an order with the following effect: leave to appeal
was granted to the plaintiff to appeal the dismissal of the application for the
reconsideration of the costs order with costs; leave to appeal was granted to the
plaintiff to appeal the costs order relating to the dismissal of the plaintiff’s
conditional application for leave to appeal; leave to appeal was also granted to
the plaintiff to appeal the dismissal of its section 18(3) application with costs; and
the defendant was granted leave to cross -appeal in relation to the costs of the
section 18(3) application.

11. These are the appeals currently before this Court . It is evident from the records in
the relevant proceedings that any order this Full Court makes will have no effect
other than on the final liability for costs in the respective applications.

12. Turning now to consider the appeal in respect of the section 18(3) application.
Prior to the enactment of section 18 of the Superior Courts Act , the legal position
regarding the enforcement of orders pending an application for leave to appeal
was governed by the common law.

13. Rule 49(11) of the Uniform Rules , which previously regulated the enforcement of
judgments during the appeal process , has been repealed .2 The common law
position relating to the enforcement of a judgment despite a pending appeal has
been replaced by section 18 of the Superior Courts Act (“the Act”) . Section 18 of
the Act reads as follows:
“18. Suspension of decision pending appeal
(1) Subject to subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation and execution of a decision
which is the subject of an application for leave to appeal or of an appeal , is
suspended pending the decision of the application or appeal.
(2) . . .

2 With effect from 22 May 2015.
(3) A court may only order otherwise as contemplated in subsection (1) or (2),
if the party who applied to the court to order otherwise, in addition proves
on a balance of probabilities that he or she will suffer irreparable harm if
the court does not so order and that the other party will not suffer
irreparable harm if the court so orders.
(4) If a court orders otherwise, as contemplated in subsection (1) -
(i) the court must immediately record its reasons for doing so;
(ii) the aggrieved party has an automatic right of appeal to the next
highest court;
(iii) the court hearing such an appeal must deal with it as a matter of
extreme urgency; and
(iv) such order will be automatically suspended, pending the outcome of
such appeal.
(5) . . . ”

14. The position under the common law has been authoritatively set out by Corbett
JA (as he then was) in the matter of South Cape Corporation (Pty) Ltd v
Engineering Management Services (Pty) Ltd3 (“the South Cape case”). The
intention behind the common law rule was to prevent irreparable harm to the
party seeking to exercise its right to appeal .4

15. It is apparent from the wording of section 18 of the Act that prevention of
irreparable harm to the party seeking to exercise its right of appeal is still the
primary consideration. However, when one examines the differences between
the common law rule and the requirements of section 18(1) as read with section
18(3) of the Act, the current position under section 18 is more onerous on the
party seeking to enforce the relevant order pending the completion of the appeal
process than it was under the common law.5

3 1977 (3) SA 534 (AD) at 544H -545H.
4 South Cape case , above, at 545B.
5 University of the Free State v Afriforum and Another 2018 (3) SA 428 (SCA) para 9 - 11.

16. The position under the common law before section 18 of the Act came to
regulate the position when an order is put into effect whilst an appeal process
was still pending gave the relevant High Court a broad general discretion as to
whether to grant relief or not. This is no longer the case .6

17. Again, under the common law, where there was potential for irreparable harm to
both parties should the order be put into effect before the appeal process was
finalised, the court would weigh up the balance of hardship as one of the factors
to be considered in making the decision relating to the enforcement of the order
pending the finalisation of the appeal.7 This balance of hardship is no longer a
consideration under the provisions of section 18 of the Act. This is evident from
section 18 itself.

18. The probability of success in the contemplated appeal process is not mentioned
anywhere in the wording of section 18 of the Act. However, the SCA has
determined that the prospect of success still plays a role .8

19. Turning now to the requirements to be established under the provisions of
section 18 of the Act for an order that the execution of an order may be put into
effect pending the finalisation of the appeal process.

20. It is evident from the provisions of section 18(1) that a person who seeks to put a
judgment and order into effect before the finalisation of the appeal process must
establish ‘exceptional circumstances’ to depart from the norm of an appeal
process suspending the operation of such order pending the finalisation of the
appeal. Reading section 18(1) together with section 18(3) , the onus of

6 Ntlemeza v Helen Suzman Foundation and Another 2017 (5) SA 402 (SCA) para 20.
7 South Cape case , above fn 3, at 545F - G.
8 University of the Free State v Afriforum and Another ., above fn 5, para 14 – 15.
establishing such ‘exceptional circumstances’ would fall on the applicant. In this
case , for the reasons set out above, referred to as the ‘plaintiff’.

21. In addition to establishing ‘exceptional circumstances’ the applicant must, under
the provisions of section 18(3), establish on a balance of probabilities that it will
suffer irreparable harm if the order being the subject of an appeal is not put into
effect and that the opposing party (the appellant) will not suffer irreparable harm
if such order is put into effect.

22. In developing the law relating to the application of section 18 , Sutherland J (as he
then was) in the case of Incubeta Holdings (Pty) Ltd and Another v Ellis and
Another 2014 (3) SA 189 (GJ)9, set out the position on determining ‘exceptional
circumstances’, and I quote the relevant passages:
“[16] It seems to me that there is indeed a new dimension introduced to the test
by the provisions of s 18. The test is twofold. The requirements are:
• First, whether or not ‘exceptional circumstances’ exist; and
• Second, proof on a balance of probabilities by the applicant of –
o the presence of irreparable harm to the applicant/victor, who wants to put
into operation and execute the order; and
o the absence of irreparable harm to the respondent/loser, who seeks
leave to appeal.
[17] What constitutes ‘exceptional circumstances’ has been addressed by
Thring J in MV Ais Mamas Seatrans Maritime v Owners, MV Ais Mamas, and
Another 2002 (6) SA 150 (C), where a summation of the meaning of the phrase
is given as follows at 156I -157C:
‘What does emerge from an examination of the authorities, however, seems to
me to be the following:
1. What is ordinarily contemplated by the words “exceptional circumstances” is
something out of the ordinary and of an unusual nature; something which is

9 The “Incubeta’s case ”.
excepted in the sense that the general rule does not apply to it; something
uncommon, rare or different; “besonder”, “seldsaam”, “uitsonderlik”, or “in ʼn
hoë mate ongewoon”.
2. To be exceptional the circumstances concerned must arise out of, or be
incidental to, the particular case.
3. Whether or not exceptional circumstances exist is not a decision which
depends upon the exercise of a judicial discretion: their existence or
otherwise is a matter of fact which the Court must decide accordingly.
4. Depending on the context in which it is used, the word “exceptional” has two
shades of meaning: the primary meaning is unusual or different; the
secondary meaning is markedly unusual or specially different.
5. Where, in a statute, it is directed that a fixed rule shall be departed from only
under exceptional circumstances, effect will, generally speaking, best be
given to the intention of the Legislature by applying a strict rather than a
liberal meaning to the phrase, and by carefully examining any circumstances
relied on as allegedly being exceptional.’
[18] Significantly, although it is accepted in that judgment that what is
cognisable as ‘exceptional circumstances’ may be indefinable and difficult to
articulate, the conclusion that such circumstances exist in a given case is not a
product of a discretion, but a finding of fact.
[19] The survey of authorities addressed by Thring J included a broad range of
circumstances, and his summation or compendium appears to be of universal
application. Nevertheless, it seems to me, to be necessary to express caution
about importing from one kind of enquiry into another kind of enquiry an
understanding of a familiar phrase. It is important to appreciate that Thring J was
not addressing the phrase in s 18 of the Superior Courts Act but in the provisions
of section 5(a)(iv) of the Admiralty Regulatio n Act 105 of 1983, which confers a
power on a competent court to direct an examination of various things in order to
procure evidence.
[20] A given phrase in any statutory provision has a function specific to that
provision and to that specific statute and the primary aim of the interpreter is to
discover the function it performs in that specific context. It may perform a
different function in another statute and one must avoid being seduced by
beguiling similarities.
[21] The context relevant to section 18 of the Superior Courts Act is the set of
considerations pertinent to a threshold test to deviate from a default position, ie
the appeal stays the operation and execution of the order. The realm is that of
procedural laws whose p olicy objectives are to prevent avoidable harm to
litigants. The primary rationale for the default position is that finality must await
the last court’s decision in case the last court decides differently – the reasonable
prospect of such an outcome being an essential ingredient of the decision to
grant leave in the first place. Where the pending happening is the application for
leave itself, the potential outcome in that proceeding, although conceptually
distinct from the position after leave is granted, ought for policy reasons to rest
on the same footing.
[22] Necessarily, in my view, exceptionality must be fact -specific. The
circumstances which are or may be ‘exceptional’ must be derived from the actual
predicaments in which the given litigants find themselves. I am not of the view
that one can be sure that any true novelty has been created by s 18 by the use of
the phrase. . . .
[23] . . .
[24] . . . The proper meaning of that subsection is that if the loser, who seeks
leave to appeal, will suffer irreparable harm, the order must remain stayed, even
if the stay will cause the victor irreparable harm too. In addition, if the loser will
not suffer irreparable harm, the victor must nonetheless show irreparable harm to
itself. A hierarchy of entitlement has been created, absent from the South Cape
case test. . ..” (Emphasis supplied. )

23. The SCA in the matter of Tyte Security Services CC v Western Cape
Provincial Government and Others10 took a more nuanced and less formalistic

10 2024 (6) SA 175 (SCA) , (“Tyte Security case ”).
approach to the application of section 18(1) as read with section 18(3) of the Act.
In the Tyte case , it was submitted before the SCA that each of the three
requirements set out in section 18(1) and (3) were distinct, separate and self -
standing. The response to this argument is important.

24. To some extent , the approach taken by the SCA in the Tyte Security case is a
counter point to the approach taken in the Incubeta’s case and some of the other
authorities quoted above. In these circumstances , it is necessary to quote
substantively from the Tyte Security case to understand what is required in the
application of section 18(1) and (3).

25. The relevant passages responding to the argument that the three requirements
that need to be established under the provisions of section 18(1) and (3) are
distinct, separate and self -standing by the SCA in the Tyte case read as follows:
“[10] Whilst there are indeed statements in those judgments that would appear
to support counsel’s fundamental hypothesis, they seem to have been made in
passing. They thus call for closer examination in this matter. An important point
of departure, so it seems to me, is that consideration of each of the so -called
three requirements is not a hermetically sealed enquiry and can hardly be
approached in a compartmentalised fashion.
[11] It is important to recognise that the existence of ‘exceptional
circumstances is a necessary prerequisite for the exercise of the court’s
discretion under s 18. If the circumstances are not truly exceptional , that is the
end of the matter. The application must fail and falls to be dismissed. If, however,
exceptional circumstances are found to be present, it would not follow, without
more , that the application must succeed . . ..
[12] . . .
[13] What constitutes irreparable harm is always depend ent upon the factual
situation in which the dispute arises, and upon the legal principles that govern the
rights and obligations of the parties in the context of that dispute. It was accepted
in Knoop that: ‘the need to establish exceptional circumstances is likely to be
closely linked to the applicant establishing that they will suffer irreparable harm if
the . . . order is not implemented immediately.’ The same, I dare say, can be
said of its counterpart, the absence of irreparable harm to the respondent. In that
sense, the presence or absence of irreparable harm, as the case may be, can
hardly be entirely divorced from the exceptional circumstances enquiry. It would
perhaps be logically incoherent for a court to conclude, on the one hand, in
favour of an applicant that exceptional circumstances subsist, but, on the other,
against an applicant on either leg of the irreparable harm enquiry.
[14] The argument, as I have it, is that , as the language of s 18(3) is clear – it
is for an applicant, in addition to exceptional circumstances, to prove on a
balance of probabilities that it w ill suffer irreparable harm and conversely the
other party would not. A court is thus required to undertake what would be in the
nature of a tick -box exercise by enquiring into and satisfying itself as to the first,
then the second and finally the third, in that order. Unless each box is
successfully ticked, the applicant must fail. Here, so the argument proceeds, the
high court failed to undertake such an exercise; had it done so, it could not
permissibly have ticked the third box, consequently, the s 18 application should
have failed. Even accepting that the legislature has employed the words ‘in
addition [to exceptional circumstances] proves on a balance of probabilities’ in s
18(3), it would be passing strange that , if an applicant comes short in respect of
either the second or third requirements , it would nonetheless still be able to
successfully meet the exceptional circumstances threshold . The use of the words
‘in addition proves’ in s 18(3) ought not to be construed as necessarily enjoining
a court to undertake a further or additional enquiry. The overarching enquiry is
whether or not exceptional circumstances subsist. To that end, the presence or
absence of irreparable harm, as the case may be, may well be subsumed under
the overarching exceptional circumstances enquiry. As long as a court is alive to
the duty cast upon it by the legislature to enquire into, and satisfy itself in respect
of exceptional circumstances, as also irreparable harm, it does not have to do so
in a formulaic or hierarchical fashion .”11 (references omitted ; emphasis supplied )

26. In the Tyte Security case, as can be seen from the passages quoted above, the
SCA recognises the fact that in most cases the irreparable harm would be
subsumed into the ‘exceptional circumstances’. In those circumstances , one
would of necessity rely on the same facts to establish both requirements.

27. It is appropriate to mention at this juncture that the defendant’s cross -appeal in
relation to the costs of the section 18 application is motivated on the basis that
the plaintiff had not established the requirements se t out in section 18(1) as read
with section 18(3). That on such a basis , the court a quo erred in ordering that
each party should pay its own costs. The defendant sought an order setting aside
the order made by the court a quo set out above and sought such orders
substitution with an order that the plaintiff pay the defendant’s costs in the section
18 application on an attorney and own client scale. Alternatively, that the
defendant’s costs be paid de bonis propriis on an attorney and own client scale.
The defendant also sought certain related and ancillary relief in respect of the
costs of such application, which it is not necessary to specify at this point.

28. It further emerged during the oral argument of this appeal that there was an
agreement between the plaintiff and the defendant that the costs of the section
18 application would be awarded on an attorney and own client basis, regardless
of which party was successful in the said section 18 application. This agreement
was not disavowed by either party , and for present purposes , this court accepts
that there was such an agreement.


11 Tyte Security case , above fn 11.
29. The reasoning of O’Brien AJ relevant to the present appeal appears at
paragraphs 32 to 36 , as well as the order he made. It would be useful for present
purposes to quote these passages of the section 18 judgment verbatim.
“32. In this litigation warfare, this court as the upper custodian of J[...], will
consider his interests. Not only in common law but in our constitutional setting,
the rights of individuals are guaranteed, and I am cognisant of that. Therefore, it
is disingenuous to argue that J[...]’s condition has been the same before, during
and after the trial.
33. It is beyond question that the mere fact that J[...] suffers from cerebral
palsy is undisputed and that he needs treatment, which the defendant disputes
only a portion, shows continuous harm that he suffers.
34. However, I have to consider that at least on 13 September 2021 [this date
appears to be a typographical error which will be discussed below ], the agreed
amount was offered. Why this court still had to be saddled with arguments for two
days together with heads of argument, notes and a letter is inexplicable. I shall
regard J[...]’s permanent condition and how this matter has been dealt with after
30 September 2021 (another typographical error in respect of this date), when I
make a costs order.
35. Returning to the application itself, in my opinion, the exceptional
circumstances have fallen away on 30 September 2021 [again a typographical
error concerning this date ] because:
(a) the plaintiff abandoned the relief initially sought;
(b) the parties agreed to an amount totalled R6 504 153.00;
(c) this amount must be used to support J[...];
(d) the registration of the trust and the appointment of a trustee is not an
impediment for the plaintiff’s attorneys to pay any reasonable payments to
satisfy J[...]’s needs, inclusive of treatment, care, aids or equipment that
may arise;
(e) the court order of 1 July 2021 [again a typographical error in respect of the
date of this court order ] grants plaintiff’s attorney the power to make
reasonable payments;
(f) the court order of the 30 September 2021 [again a typographical error in
respect of the date ] does not impede or infringe upon this court’s order
allowing the plaintiff’s attorney to make reasonable payments;
(g) for the above reasons, when the parties agreed to the amount, there was
no reason for the plaintiff to proceed with this application. However, I
accept that an order that the plaintiff pays the cost of this application will
affect the capital amount awarded to J[...], which is not in his interests.
Therefore, I shall make provision in the cost order for such eventualities
(sic).
36. Because I intend to dismiss this application I do not deal with the alleged
new case in reply, and the application to strike out.
37. I make the following order:
(a) the application is dismissed;
(b) each party to pay their own costs;
(c) for the benefit of the taxing master, I direct any attorney and own client
costs may not be recouped from the capital amount awarded to the
plaintiff.”

30. Firstly, to clarify what appear to be typographical mistakes evident from the
judgment of O’Brien AJ in the section 18 judgment quoted above. The date in
paragraph 34 quoted above referring to the first time to offer of a payment of
some R6.5 million can only refer to annexure “JLS2” to the answering affidavit in
which the said offer was made for the first time. The said letter is dated 15
September 2022 and not 13 September 2021. Then in the same paragraph 34 ,
O’Brien AJ refers to the conduct of the section 18 application after 30 September
2021. This can only be a reference to the Order granted by Phats hoane DJP on
30 Sep tember 2022. Then in paragraph 35 of the said judgment , O’Brien AJ
again refers to the exceptional circumstances falling away on the 30 September
2021 , again , this could only have been a reference to the Order of Phats hoane
DJP on the 30 September 2022. Then , in paragraph 35(e) , there is a reference to
a court order dated 1 July 2021. This can only be a reference to O’Brien AJ’s
own judgment on quantum dated 1 July 2022.

31. It is evident that O’Brien AJ was somewhat irritated by the conduct of the parties
in this matter, but O’Brien AJ’s remarks in paragraph 31 of his judgment places
this question beyond doubt, this paragraph reads:
“In my attempt to set out the main facts together with the arguments, I have also
considered all the papers and all the evidence. Burdening to this judgment with
remarks, counter remarks, allegations, counter allegations, gratuitous insults, and
unnecessary arguments is unnecessary. I have considered them all.”

32. A lack of collegiality is indeed to be deplored and regretted. What is required is
collegiality, a pragmatic assessment of the risks inherent in a client’s case,
married to a bona fide effort to curtail litigation in the client’s interest. It may not
always be possible to achieve this, but at least a bona fide effort must be made.
The efforts by both parties to show the other in a bad light did not necessarily
serve their respective client’s best interests. At this point , nothing further will be
said on this subject.

33. Ms Williams SC, who appeared for the defendant , pointed out that O’Brien AJ did
not list his reasons for finding ‘exceptional circumstances’ as required by section
18(4)(i) of the Act . If one reads the passages of O’Brien AJ’s judgment quoted
above , it is evident that he considered the ongoing care and needs of J[...] as
‘exception al circumstances ’ in the particular circumstances of this case.

34. This court would have added that in circumstances such as the present case
where profound personal injury was the basis for the claim, an actuarial
calculation which is based on the need to invest the capital amount in a manner
that would outstrip inflation by 2.5% (two point five per centum) is both an
‘exceptional circumstance ’ and evidence of ‘irreparable harm ’. The SCA in the
Tyte Security case12, establishes that the exceptional circumstances would
usually be based on the same facts as the irreparable harm. The defendant had
not established that he would suffer irreparable harm if the Order were put into
effect. Particularly, in circumstances where the capital sum was to be paid into an
attorney’s trust account and the attorney had given a written assurance that
whatever amount it had succeeded in diminishing the original capital award
would be reimbursed to him. In these circumstances , all of the requirements of
section 18(1) as read with section 18(3) have been established.

35. The Notice of Motion in the section 18 application was issued and served on the
defendant on 13 September 2022. The first offer to pay the interim payment was
only made after the said Notice of Motion was issued and served. The relevant
offer did not tender costs , and this is evident from the letter written on behalf of
the defendant dated 15 September 2022. The Order of Phatshoane DJP makes it
clear that whilst the plaintiff accepted alternative relief on 30 September 2022,
the issue of the cost of launching and prosecuting this application was
unresolved and still very much alive.

36. The comments of O’Brien AJ in the passages quoted above show that this point
relating to the costs being the real live issue for him to consider escaped him. He
erred in not considering the matter before him in that light.

37. Further, O’Brien AJ overlooked the fact that the offer made by the defendant was
only made after the Notice of Motion and Founding papers were drawn up and
served on the defendant. Also, despite the plaintiff abandoning its primary relief
in favour of alternative relief , it does not change the reality that, in essence , the
plaintiff was still substantially successful.


12 Above fn 11.
38. These are indeed the sort of misdirections that entitle this court to substitute its
own discretion for that of O’Brien AJ.

39. The plaintiff has established that there were exceptional circumstances and that ,
on a balance of probabilities , it would have suffered irreparable harm and that the
defendant would not suffer irreparable harm. Having regard to the agreement
between the parties that whoever succeeded in the section 18 application , costs
would be awarded on an attorney and own client basis, costs will be awarded on
that scale.

40. For the very same reasons, the defendant’s cross -appeal stands to be dismissed
with costs.

41. In relation to costs of this appeal , both parties employed Senior Counsel with a
junior. In these circumstances , it is appropriate that costs that are not awarded
on an attorney and own client scale be taxed on scale C.

42. We now proceed to the appeal against the reconsideration of costs judgment and
order. To recap, t he plaintiff is appealing against th e court a quo ’s dismissal of the
application for the reconsideration of the cost order made in the main judgment
on 01 July 2022. The reconsideration application has its genesis from a secret
offer that the plaintiff made to the defendant on 21 October 2019 with a view to
settle the quantum of damages , the liability of which was already settled as far
back as 02 November 20 15.

43. The offer made to the defendant was for the latter to pay an amount of R18 000
000 as J[...]’s proven or agreed damages flowing from the brain injury suffered at
birth. The defendant did not accept this offer. It however, made four without
prejudice counter offers which were not accepted by the plaintiff on behalf of
J[...]. In the result and pursuant to a trial , the court a quo ordered the defendant
to pay an amount of R19 117 017 -42 as the plaintiff’s proven damages .

44. The reconsideration application was dismissed on 24 February 2023 by the court
a quo . In essence , the plaintiff sought an order that the defendant bear those
costs which are irrecoverable by the plaintiff in terms of the party and party costs
order which the court a quo ordered on 01 July 2022. Such costs are to cover the
period from 21 October 2019, being the date on which the secret offer was made ,
until the final judgment of the court a quo on 01 July 2022.

45. The grounds of appeal upon which the judgment and order of the court a quo is
appealed are threefold. First, that the court a quo did not afford the parties,
particularly the plaintiff as the losing party , an opportunity to be heard, especially
where the court intended to dismiss the reconsideration application.

46. Secondly, that the applicable legal principles ought to have caused the court to
exercise its discretion in favour of the plaintiff. Lastly, the public interest dictates
that secret offers to settle be encouraged to address the cases that have flooded
courts , effectively stifling the right of access to court s.

47. In the judgment , the court a quo remarked that the main ground the plaintiff
requested the court to reconsider the cost order is that the defendant’s conduct
did not accord with the required ethical considerations. In that regard , the plaintiff
contended, the defendant conducted the trial with irrelevant , insulting, unduly and
lengthy cross -examination of the plaintiff ’s expert witnesses. Further, the
defendant ’s attitude when its special defense fell flat , was obstructive concerning
the claw- back provision in the trust deed , which underscores the defendant’s
unreasonable conduct.

48. Having referred to the relevant precedent and the evidence, the court a quo held
that it could not be sai d that the defendant acted unreasonably ; that when the
defendant pleaded the public healthcare defen ce, it was fully entitled to it,
moreover, that was after a Constitutional Court decision which opened up the
possibility of a public healthcare defen ce in cases where delictual damages are
claimed. The court a quo acknowledged that the defendant conducted the trial in
an abrasive manner. However , the court a quo held that such conduct is in line
with the nature of our adversarial system . The court accepted that cross -
examination may at times be aggressive and sarcastic , but that does not mean
that it was unreasonable. The court a quo reasoned further that the defendant
was entitled to explore the evidence of the plaintiff’s expert witnesses, which
resulted in the court a quo making specific findings, one of which was the
contingency deductions and the issue of care. In the latter, the court a quo found
that J[...] should not be given 24-hour care at the behest of the defendant. The
court a quo concluded that the vigorous defen ce put up by counsel for the
defendant cannot be described as unreasonable.

49. The plaintiff’s application for the reconsideration of costs is based on what has
become known as the Calderbank principle in our law . At the core of the principle
is the recognition of an offer made by a plaintiff to be treated the same as an offer
or tender made by the defendant in terms of rule 34 of the Uniform Rules . The
real question is why a defendant should not be liable for the plaintiff’s expenses
for not accepting what turns out to be a reasonable offer made by the plaintiff, in
the same way as the plaintiff who refuses to accept a reasonable offer of
settlement made by the defendant. The position is that a plaintiff who presents a
secret offer of settlement to the defendant and ultimately receives an award that
is more than the secret offer , is entitle d to approach the court for a
reconsideration application in terms of which he seeks a n order that the
defendant pay irrecoverable costs from the date the secret offer was made until
the date of the award. The applicability of the Calderbank principle is not in
dispute in casu . It is therefore not necessary to discuss the origin of the principle
and how it became part of our law.

50. In AD and Another v MEC for Health and Social Development , Western
Cape 13,the court held that , in principle , Calderbank offers are admissible in
relation to costs and can be disclosed to the court for that purpose after the
judgment has been made .14 Rogers J provided guidance thus:
“As to the effect of a Calderbank offer on costs, the Commonwealth cases
emphasise that a plaintiff who has made such an offer is not entitled to
attorney/client costs merely because he made a secret offer which was less than
what the court awarded. The court must consider whether the defendant
behaved unreasonably, and thus put the plaintiff to unnecessary expense, by not
accepting the offer or making a reasonable counter -offer. Factors mentioned in
the Commonwealth cases are whether the defendant has engaged reasonably in
attempting to settle; whether the plaintiff was offering a fair discount based on a
realistic assessment of the case rather than holding out for the best conceivable
outcome; whether the plaintiff allowed the defendant a reasonable time to
consider the offer; the extent of the difference between the amount of the offer
and the amount of the award; and the nature of the proceedings and resources of
the litigants .”15

51. We emphasise that reconsideration of the order of cost is not there for the taking .
An applicant is required to make out a case for such an order to be granted.
Factors to be considered precedent to the order are as set out in AD and Another
v MEC for Health referred to above. The list is not exhaustive . It all depends on
the circumstances of each case.

52. The public interest factor in the use of Calderbank offers was recognized by this
court in Du Toit NO obo Nkuna v Road Accident Fund 16 where Phatshoane
DJP held:

13 2017 (5) SA 134 (WCC) - (“AD and Another v MEC for Health ”).
14 Ibid para 60.
15 Ibid para 61.
16 (CA&R45/2023) [2024] ZANCHC 78; [2024] 4 All SA 476 (NCK) (23 August 2024).
“The use of Calderbank offers by plaintiffs is important in the context of the wider
public interest to conserve and not waste public resources on unnecessary
litigation. There is no rational basis upon which a plaintiff ought to be denied
access to the benefits of a secret tender more so where the trial turns arduous
and protracted. To risk promoting intransigence by a defendant with deep
pockets in the face of a reasonable offer from a plaintiff by refusing to attach any
effect to such an offer would not be in the public interest and certainly would
defeat the dictates of justice and fairness as a plaintiff may be discouraged to
pursue a legitimate case because of the risk of irrecoverable costs were it to be
successful. The plaintiffs’ use of secret offers should not be stifled but
encouraged. In the judgment of this Court in DC Arends and Another v Member
of the Executive Council for the Department of Health: Northern Cape Provinc e it
was held that consideration of the plaintiff’s secret or Calderbank offer to settle
ought to be infused in the Court’s power to regulate its own process and that the
public policy and public interest consideration which form the basis for penalising
a plaintiff with costs, for not accepting a defendant’s reasonable offer, must
logically find application where a defendant fails to accept a plaintiff’s reasonable
offer to settle. The view expressed in Arends remains valid”17.

53. The parties agree that they were entitled to make written and/or oral submissions
before the court a quo and that they were not given that opportunity . This failure
to afford the parties the opportun ity to be heard is a misdirection on the part of the
court a quo . On this basis alone this court’s intervention is warranted to set the
order in that regard aside .18 It is notable that though the court a quo referred to
the relevant authority in reconsideration of cost applications, it, however,
misdirected itself in its approach in considering the application. The court a quo
based its decision on the conduct of the defendant during the trial. The reasoning
lost sight of the fact that the application is based on the failure to accept an offer

17 Ibid para 9.
18 Transvaal Industrial Foods Ltd v B.M.M. Process (Pty) Ltd 1973 (1) SA 627 (A) at 628 - 629D ; see also
Motswai v Road Accident Fund 2014 (6) SA 360 (SCA ) para 59.
of settlement which later turned out to have been reasonable . If the offer was
accepted there would not have been any need for a protracted trial that the
plaintiff had to be subjected to.

54. The finding that the court a quo misdirected itself and that its order is to be set
aside, would ordinarily require that the matter be referred to the court a quo for
reconsideration . The parties are, however, of the view that referring the matter
back to the court a quo would cause unnecessary delay and add additional costs
to them. They correctly stated that this court is in as good a position as the court
a quo was to determine the matter.

55. In our view , it would not be in the interest of justice to re fer the matter back to the
court a quo. It would also be inappropriate to refer the matter back to the court
that has already expressed an opinion in the application by dismissing the
application . The appeal s before us are about costs , and the reconsideration
application is closely linked to the other matters to be determined by thi s court.
This court will therefore step into the position of the trial court and consider the
reconsideration application afresh. The reasoning of the court a quo in dismissing
the application would be, because of the misdirection and fundamental irregularity
it committed19, not be of relevan ce to the enquiry .

56. It is important to mention that a lot has happened between the time the
application for reconsideration was launched and the hearing of the appeal.
Some of the legal proceedings and processes that were pending at the time when
the reconsideration application was decided by the court a quo have now been
concluded. This aspect is important because it would have a bearing on some of
the c riticisms raised by the parties. Chief among these issues is the fact that the
judgment of the court a quo is no longer t he subject matter of an application for
leave to appeal . The defendant ’s application for leave to appeal was refused. The

19 Serfontein v Bosch 1930 OPD 75 at 78; Shenker v Additional Magistrate, Wynberg; SA v Shenker 1965
(3) SA 121 (C ); See also Brian Kahn Inc v Samsudin 2012 (3) SA 310 (GSJ) .
subsequent petition to the Supreme Court of Appeal has been dismissed . The
quantum has now finally been determined.

57. There is one application that requires determination before we traverse the merits
of the appeal on the reconsideratio n application. That is the application to lead
further evidence on appeal by the defendant. The application i s founded on the
affidavit by Mr Stratford John Lembo e, who is the defendant’s attorney of record.
The purpose of the application is for this court to accept the affidavit of Mr du Toit .
Mr du Toit is a practicing actuary whose report was attached to the a nswering
affidavit of Mr Steyn in opposition to the reconsideration application. The affidavit
was attached without a confirmatory affidavit of the author. The plaintiff objected
to this procedure adopted by the defendant.

58. Section 19(b) of the Superior Courts Act 10 of 2013 empowers this court , when
sitting as a court of appeal , to, in addition to any power as may specificall y be
provided in any other law , receive further evidence. The following requirements
must be met for the court to admit further evidence on appeal:
(a). There should be some reasonably sufficient explanation, based on
allegations which may be true, why the evidence which is sought to be led
was not led at the trial.
(b). There should be prima facie likelihood of the truth of the evidence.
(c). The evidence should be materially relevant to the outcome of the trial. 20
It has been held that the party who seeks leave to adduce further evidence must
satisfy the court that it was not due to any remissness or negligence on the
party’s part that the evidence in question was not adduced before the court
below.21 Every case must be decided on its own merit . Importantly, leave to allow

20 Herbstein and Van Winsen: Civil Practice of the High Courts and the Supreme Court of Appeal of South
Africa (5th Edition - Jutastat e -publications , 2009) Ch39 – p1241 -1242. (and the authorities cited therein).
21 South African Land Arrangements CC and others v Nedbank Limited [2015] JOL 33330 (SCA) para 9;
see also De Aguiar v Real People Housing (Pty) Ltd 2011 (1) SA 16 (SCA) para 11.
a party to lead further evidence on appeal is an exceptional remedy which is
sparingly granted by the courts .22

59. The only explanation why the defendant did not file the affidavit by the actuary is
that it relied on the procedure that was followed in AD and Another v MEC for
Health and Social Development , Western Cape23. The defendant contends that
in terms of the procedure in th at matter , no affidavit by an actuary was filed , and
as such , it was not necessary for the affidavit by Mr du Toit to be filed. The
defendant is requesting that the affidavit be admitted at this stage in so far as it
may be necessary .

60. Reading the reference to the AD v MEC matter , there is no mention by the
learned Judge that it is not a requirement that an actuary’s repo rt be filed with an
affidavit by the author. It is trite that an exp ert report cannot just simply be filed
without an affidavi t by the expert witness disclosing his/her qualifications, his /her
expertise, the metho d used and confirming the authenticity and truthfulness of the
document alleged to have been prepared by him /her. Mr Lemboe does not meet
any of the requirements for the defendant to be granted leave to lead further
evidence. He does not explain why he could not obtain the affidavit when the
document was filed. We find merit in Mr De Waal’s submission that the evid ence
to be introduce d raises a substantial dispute of opinion between the actuaries .
There is a difference of opinion a s to whether the calculations solely based upon
CPI is the correct approach. This approach is to be contrasted with the report by
Ms Barnard , who suggests that it is oversimplification to simply compare the
original offer of R18M adjusted with CPI with the R19,17 M award in July 2022 , as
Mr du Toit has done . She suggested a different methodology which does not rely
on the lump sum. She takes the aw ard and breaks it down into different heads of
damages and calculates how each would be when the offer was made. The gist
of the dispute is whether the secret offer is valued more than the final award

22 O’ Shea NO v Van Zyl and Others N NO 2012 (1) SA 90 (SCA) para 9 (and the authorities cited therein).
23 2017 (5) SA 134 (WCC), par a 65.
when it was given by the court a quo . To resolve this dispute , more evidence will
have to be presented. Mr De Waal contended that the evidence sought to be led
is inadmissible and immateri al because Ms Bar nard had already made the
calculation on the amount that Mr du Toit gives an opinion on. For the above
reasons , the leave to lead further evidence on appeal is refused.

61. The defendant resisted the reconsideration application on several grounds , which
boil down to the following . First, it was contended that the plaintiff failed to show
that the secret offer made on 21 October 2019 was less tha n the award made on
1 July 2022. It was contended that the plaintiff was required to place an actuarial
report as evidence before the court to show what the secret offer was worth when
the award was made.

62. Secondly, it was contended that when the secret off er was made , the defendant
was inter alia still relying on the public healthcare defence . In terms of the public
healthcare defence, the defendant had offered to provide future healthcare for
J[...] at the local Robert Mangaliso Hospital. However, that defence was
according to the defendant ‘torpedoed ’ when J[...] was moved from Kimberl ey to
Bloemfontein. As a result, the defendant could not guarantee healthcare for J[...]
in another provin ce. Because of this move , the public health care defence was
abandoned.

63. The third reason advanced is that the period given to the defendant to accept the
secret offer was unreasonable as only two days were allowed before the offer to
settle w ould lapse. Finally, the defendant contended that the secret offer was
more than the award of the court a quo.

64. It is not disputed that the letter containing the secret offer meets the requirements
of being classified as such. It is furthe r common cause that the offer therein made
was not accepted by the defendant , and as a result , the trial on quantum had to
proceed for a substantial period . These common cause facts open the way for us
to consider the grounds relied upon by the defendant in challenging the
reconsideration application.

65. The first challenge is that the defendant was not given sufficient time (spatium
deliberandi ) to consider the secret offer . The secret offer was served on 2 1
October 2019 and was to expire on 23 October 2019 at 13: 00. According to the
defendant , the period was too short , and as a result , there was no offer to accept
after the expiry time. There is no merit to this contention. It was open to the
defendant if it genuinely wanted to consider the offer to have engaged the plaintiff
and requested an extension of time if it was too short. This was possible since the
notice “invited the defendant to make any reasonable counteroffer or to engage in
negotiation with the plaintiff on any reasonable alternative basis of settlement . .
.”. Instead of acting on the invitation , the defendant elected to proceed with the
trial, which was to run for 29 days . It is in our view senseless that if the defendant
was open to considering settlement proposals, he would reject the offer because
of not being given enough time to consider it. It would have been prudent to
weigh the short spatium with the risk of a protracted trial costs the defendant
would be exposed to should the offer be found reasonable. In addition, the first
counteroffer made by the defendant was only two years later (22 October 2021 ).

66. This conduct is, in our view , not consistent with a party open to settl ing the matter
at the first avail able opportunity. It is also not open to the defendant to claim that
the period given was too short when it did not accept the offer. Of importance, the
offer was made two days before the trial was to start. By th at time, the parties
were well prepared and ready for the trial. Both parties, by then, knew the case of
the other and the nature and extent of the evidence to be tendered. It would
therefore have been easier to weigh the risk of a full-blown trial against the offer
made in the settlement and to make a counteroffer.

67. It was open to the defendant to have pursued the public health care defence
against the plaintiff’s claim. The enquiry is not whether the defendant believed
that the public health care defence had merit or would ultimately succeed .
Rejecting a settlement offer on the basis that a particular defence would
ultimately succeed is a risk undert aken by the defendant by proceed ing to trial . If
the defence is unsuccessful , such a defendant is not immune from being ordered
to pa y costs pursuant to a reconsideration of costs application. This will be the
case particularly where there was no attempt to engage in a meaningful
settlement process for a period of two years.

68. The main contention why the defendant seeks to persuade us to dismiss the
reconsideration application is that the plaintiff has not shown that the s ecret offer
was less than the award that was grante d. In this regard , the defendant is relying
on the actuarial report by Mr G du Toit attached to the answering affidavit. By this
court not accepting the report by Mr du Toit , we are left with the fact that the
secret offer was R 18 000 000, and the award of the court a quo is R19 117 017 -
42. The secret offer is exceeded by the award. As regards the AD v MEC
argument raised by the defendant, we do not believe that Rogers J la id an
inflexible rule that in Calderbank offers the court should always take into account
the time -value of money. What the learned Judge meant is that the time-value of
money is ‘one consideration in assessing whether the defendant acted
unreasonably in refusing to accept an offer.’ For the reasons set out above , the
plaint iff’s application for reconsideration should have succeeded in the court a
quo.

69. The relief sought by the plaintiff is fully set out in the notice of appeal. We are,
however, of the view that the plaintiff is entitled to attorney and client co sts for the
period from 21 October 2019 , when the secret offer was made , to 01 July 2022 ,
when the award was issued by the court a quo . As regards the co sts on appeal ,
we order costs on party and party on scale C of the Rules.

70. In the result , the following order is made :

1. The appellant’s appeal is upheld;
1.1. In these circumstances the order of the court a quo in the section 18
application is set aside and replaced with the following:
(a). “The plaintiff succeeds to the extent agreed in the order dated 30
September 2022.
(b). The defendant is ordered to pay the costs of the plaintiff’s application in
terms of section 18(3) of Act 10 of 2013 on the scale as between
attorney and own client, such costs to include the reserved costs
pertaining to 29 and 30 September 2022, the costs consequent upon
the employment of two Counsel, the travelling and accommodation
costs of Counsel if any, and the costs of drafting heads of argument
(main heads of argument and heads of argument in reply.”
1.2. Further, it is ordered that:
(c). The defendant is to pay the costs of this appeal, such costs to include
the costs of employing two Counsel where two Counsel were in fact
employed. Such costs are to be taxed on scale C.
(d). The defendant’s cross -appeal on the costs of the section 18 application
is dismissed.
(e). The defendant is to pay the costs of the cross -appeal, such costs to
include the costs of employing two Counsel where two Counsel were in
fact employed. Such costs are to be taxed on scale C.
2. The order of the court a quo dismissing the appellant’s application for
reconsideration of costs, is set aside and substituted with the following order :
2.1 The in troductory portion of paragraph 5 of the order of the court a quo
dated 1 July 2022 be and is substituted with the following introductory
portion:
“5. The defendant shall pay the plaintiff’s reasonable taxed or
agreed party and party costs of the action pertaining to the
issue of quantum up to and including 21 October 2019, and
from 22 October 2019 to 1 July 2022 he shall be liable for
such costs on the scale as between attorney and client, on
the High Court scale, which costs shall include but not be
limited to the following. ”

2.2 Paragraph 5.5 of the order of the court a quo dated 1 July 2022 be and
is
substituted with the following:
“5.5 The wasted costs occasioned by the postponement of the
trial on 16 March 2021 that was set down for hearing from 8
March 2021 onwards.”

2.3 The words “on the scale as between party and party” in paragraph 5.15
of the order of the court a quo dated 1 July 2022 be and are deleted so
that it reads:
“5.15 the wasted costs occasioned by the standing down and the
postponement of the trial that was set down from 25
October 2021 , including preparation for the trial and the
costs incurred from 25 October 2021 up to 29 October 2021
(both days included). ”

2.4 The respondent be and is ordered to pay the appellant’s costs of the
reconsideration application on the party and party scale C. Such costs
include the costs consequent upon the employment of two counsel
where two counsel were so employed.

L.P TLALETSI L.G LEVER
JUDGE PRESIDENT JUDGE
NORTHERN CAPE DIVISION NORTHERN CAPE DIVISION



I concur


MAMOSEBO ADJP
NORTHERN CAPE DIVISION


APPEARANCES:
On behalf of the Appellant : Adv. WP De Waal SC
Assisted by Adv. CH Botha
On the instruction of: ELLIOTT MARIS ATTORNEYS

On behalf of the Respondent : Adv Williams SC
On the instruction of: STATE ATTORNEY, KIMBERLEY