About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2026
>>
[2026] ZANCHC 10
|
|
Arends v Member of the Executive Council for Health, Northern Cape Province (2250/2016) [2026] ZANCHC 10 (30 January 2026)
THE
HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Not Reportable
Case no: 2250/2016
In
the matter between:
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
HEALTH: NORTHERN CAPE PROVINCE
APPLICANT
and
DAVIDENE
CHANELLE ARENDS
RESPONDENT
Case no: 2250/2016
And
in re:
DAVIDENE
CHANELLE ARENDS
APPLICANT
and
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
HEALTH: NORTHERN CAPE PROVINCE
RESPONDENT
Neutral
citation:
Arends v
Member of the Executive Council for Health, Northern Cape Province
(2250/2016) 30 January 2026)
Heard:
5 December 2025
Delivered
:
30 January 2026
ORDER
1.
The application for leave to appeal by the
Member of the Executive Council for Health: Northern Cape Province,
under case No:
2250/2016,
is
dismissed with costs on party and party scale; such costs are to
include the costs consequent upon the employment of two counsel
on
scale B, as set out in rule 67A read with rule 69 of the Uniform
Rules of this Court.
2.
The application for condonation of the late
filing of the application for leave to appeal by Ms
Davidene
Chanelle Arends
(Ms
Arends), under case No:
2250/2016,
is dismissed with costs,
such
costs are to include the costs consequent upon the employment of two
counsel on scale B, as set out in rule 67A read with rule
69 of the
Uniform Rules of this Court.
3.
The application for leave to appeal by Ms
Arends under case No:
2250/2016
is
dismissed with costs on party and party scale; such costs are to
include the costs consequent upon the employment of two counsel
on
scale B as set out in rule 67A read with rule 69 of the Uniform Rules
of this Court.
4.
The defendant is to pay the wasted costs in
respect of the proceedings of 7 November 2025.
JUDGMENT
Phatshoane DJP
Introduction
[1]
Two applications for leave to appeal stand to be simultaneously
adjudicated. They are directed
at t
wo
judgments handed down under case no
2250/2016
on
11
August 2023 (the first judgment) and 31 May 2024 (the second
judgment), respectively. The application for leave to appeal against
the first judgment was filed by the Member of Executive Council for
Health, Northern Cape (MEC), the defendant in the trial court.
The
first judgment concerned
the date on
which interest would accrue on a debt settled by agreement between
the parties, in particular, the capital amount awarded
to Ms
Davidene
Chanelle Arends
,
on
behalf of the minor child (NM), the plaintiff in the trial court.
The
application for leave to appeal against the second judgment was
submitted by Ms Arends.
The second
judgment concerned reconsidering two costs orders made on 15 March
2023 and 11 August 2023, respectively, under the
Calderbank
principle. For convenience, the parties
are referred to by their citations in the action.
The application for
leave to appeal in respect of the first judgment
[2]
The plaintiff’s action for damages against the defendant
arising from the injuries suffered
by NM during his birth was settled
by agreement between the parties. In terms of the consent order dated
15 March 2023, the defendant
was liable to pay the plaintiff on
behalf of NM R20 million, inclusive of the trustees’
remuneration and the costs of creating
the trust, in full and final
settlement of the claim. The amount would be paid in six instalments.
The first instalment of R3.5
million was payable on 31 May 2023, and
the remaining five equal instalments of R3.3 million at the end of
each of the subsequent
five months, with the final payment being on
31 October 2023.
[3]
The only question that stood for determination was whether the
defendant was liable to pay interest
a tempore morae
on the
capital amount of R20 million from 15 March 2023, the date of the
consent order, to 31 October 2023, the date of final payment
or
whether the interest was due and payable only in the event the
defendant defaulted in the payment of the capital amount as ordered.
I found that s 2A(3) of the Prescribed Rate of
Interest Act 55 of 1975 (the PRIA) applied because the debt mainly
consists of the
present value of a future loss. I concluded that
interest shall not commence to run until the date upon which the
quantum is determined
by judgment, arbitration, or agreement. That
determination would, for the purposes of the PRIA, be deemed to be a
judgment debt.
Accordingly, I ordered that the defendant pay interest
on the capital amount from 15 March 2023, the date the consent order
was
issued, to the date of final payment,
at the rate of
10.75% per annum.
[4]
The defendant assails the first judgment on three principal bases.
First, it was contended that
I failed to strike out paragraphs 40 to
42 of the plaintiff’s answering affidavit as they contained
hearsay evidence. Secondly,
that I erred in failing to have regard to
the fact that the defendant is an organ of State obliged to make a
payment within 30
days of the date of the order becoming final in
terms of s 3(3)(
a
)(
i
) of the
State Liability Act 20 of
1957
and thirdly, that I erred in failing to find that the plaintiff
was not entitled to any interest unless the defendant is in default
of payment.
[5]
The reasons for the decision not to strike out the specified
paragraphs are set out in the judgment
and need not be repeated. In
the defendant’s counsel's heads of argument, it is submitted:
“It bears emphasis”
that the court did not take the
hearsay into account. Accordingly, there is no merit in the argument
that I erred in having refused
to strike out the specified
paragraphs. There could never have been any prejudice.
[6]
The defendant accepted that the
State Liability Act does
not regulate
interest on debts due by the State. The manner in which interest was
claimed in the summons was superseded by the
agreement on the
quantum. However, the parties did not agree on the date on which the
interest would commence, necessitating a
separate adjudication of
that issue.
Section 2A(3)
of the PRIA expressly provides that
interest commences to run from the date of any agreement.
[7]
The grounds of appeal are unsustainable on the facts and the law.
Accordingly, there is no reasonable
prospect of a successful appeal.
It is trite that even where
the
court is unpersuaded of the prospects of success, it must still
enquire whether there is a compelling reason to entertain the
appeal.
A compelling reason includes an important question of law or a
discrete issue of public importance that will have an impact
on
future disputes. However, the merits remain crucial and often
decisive.
[1]
[8]
There is no
compelling reason why the appeal
should be heard on the payment of interest. The application does not
raise an important question
of law or a matter of public importance
that will affect future disputes and merit the attention of the Full
Court or the Supreme
Court of Appeal (SCA). The corollary of this is
that the application must be dismissed.
[9]
It was argued for the plaintiff that an award of costs on party and
party scale should follow
the result, including the costs for the
employment of two counsel on scale C. The assessment of the
appropriate scale involves
the exercise of the court’s
discretion, with due consideration of the factors set out in
rule
67A(3)(
b
), which are by no means exhaustive. The issues raised
in the application for leave are not complex. They traverse issues
already
dealt with in the first judgment. Therefore, I am of the view
that costs on scale B would be appropriate.
The application for
leave to appeal in respect of the second judgment
[10] In
the second judgment, the plaintiff sought relief pursuant to a secret
offer to settle that she made on
25 January 2023, that the party and
party costs as contained in the consent order of 15 March 2023 be up
to and include 25 January
2023 and that an award of costs on an
attorney and client scale be made with effect from 26 January 2023
onwards. Therefore, the
key issue for adjudication in the second
judgment was whether the plaintiff was entitled to seek
reconsideration of the costs where
her claim was settled by
agreement, which included an order of costs.
[11]
Relying on the principles enunciated
in
Erasmus
v Santam Insurance Ltd and Another
[2]
I concluded that
acceptance
of an offer encompassing both the claim and costs terminated all
pre-existing entitlements and effectively ended the
litigation
.
As
alluded to in the judgment, it was impermissible for the plaintiff to
invoke a
Calderbank
offer to seek a special costs order after the grant of a consent
order inclusive of costs. I had further found that genuine attempts
to amicably resolve the dispute had been ongoing for quite some time,
characterised by various offers and counteroffers. I was
unpersuaded
that the defendant had displayed unreasonable conduct throughout the
negotiation phase in its independent estimate
of the case's value or
its assessment of the risk of costs should the litigation proceed to
finality. Consequently, the application
for reconsideration was
dismissed with costs.
[12]
The plaintiff’s application for leave was filed on 14 November
2024, approximately six months following the delivery
of the
judgment, whereas the application for condonation was filed a month
thereafter, on 20 December 2024. Both applications are
opposed. The
delay of four and a half months, calculated from the period within
which the application ought to have been delivered,
is inordinate.
The explanation for the delay is wholly unpersuasive. In short, the
plaintiff’s attorney, who deposed to the
founding affidavit in
the application for condonation, intimated there had been some
discussion by the plaintiff’s legal
team regarding whether to
file the application for leave, given the risks involved in pursuing
an appeal. After September 2024,
the legal team reconsidered its
initial position against filing the application. He states:
‘
Our
reconsideration and critical re-assessment of our initial advice
caused us to realise that the presiding judge indeed did not
only
exercise a discretion but actually came to an incorrect conclusion on
certain facts and the application of certain legal principles.’
The
explanation of the delay does not cover the entire duration, set out
the sequence of events bearing upon the delay, or specify
the dates
and times of the said in-depth deliberations regarding whether to
proceed with the applications.
[13]
To determine whether condonation ought to be granted, an assessment
of the plaintiff’s prospects of success would
be required. This
entails a consideration of the plaintiff’s grounds of appeal,
to which I now turn. In the broad framework,
it was contended for her
that I incorrectly summarised the facts pertaining to the settlement
agreement insofar as I concluded
that the parties agreed on the
payment of costs on party and party scale. It was submitted that I
erred in failing to consider
that the true context of the settlement
agreement was the settlement of the quantum against the background of
a draft order prepared
by both parties with two distinct aspects.
First, it includes an agreement on the quantum of the damages
payable, the payment terms,
an acceleration clause, and the
consequences of non-payment. The first part of the consent order, it
was argued, was not subject
to the court’s discretion to
intervene. The second part, so it was contended, was the remainder of
the draft order, always
subject to and intended by the parties to be
subject to the Court’s discretion, part of which was still to
be adjudicated,
namely, the question of interest.
[14]
It was further argued on behalf of the plaintiff that I erred in
failing to consider the plaintiff's waiver of rights.
The onus to
prove the waiver to pursue reconsideration of costs following the
consent order rested on the defendant, and the defendant
had failed
to discharge it. Much was also made that, in another judgment I
authored,
Du
Toit N.O obo Nkuna v Road Accident Fund (Nkuna),
[3]
I had found ‘a difference of a mere R20 000 to be
sufficient for a reconsideration of the costs in that case’.
It
was further argued that this played a prominent role in the legal
advice provided to the plaintiff regarding the risk of an
appeal and
the decision to advise against it.
Nkuna,
it was submitted, impelled the plaintiff to seek condonation and to
file the present application for leave.
[15]
In opposition, the defendant raised no less than five points
in
limine
, which are mostly a repeat of what they argued in the main
application. These were dealt with in the judgment.
[16]
There is no merit in any of the grounds raised. All the terms of the
consent order of 15 March 2023 are preceded by the
caption in this
capital letters: ‘IT IS ORDERED BY AGREEMENT THAT: . . .’.
Clauses 7 and 9 of the said order, by agreement,
deal with the
question of costs. In particular, at Clause 7, it was expressly
agreed that:
‘
The
Defendant shall make payment of the First Plaintiff’s
reasonable taxed or agreed party and party costs on the High Court
scale, which costs shall include, but not limited to, the following:
7.1
The costs consequent upon the employment of two counsel, inclusive of
counsel’s full reasonable day
fees for 13 to 17 and 20 to 22
February 2023 and 13, 14 and 15 March 2023;’
At
Clause 9 of the order by consent, the following terms were plainly
agreed to on the issue of party and party costs:
‘
The
following provisions shall apply with regard to the determination of
the aforementioned taxed or agreed costs:
9.1
The First Plaintiff shall serve the notice of taxation on the
Defendant’s attorney of record;
9.2
The First Plaintiff shall allow the Defendant 30 (thirty) calendar
days to make payment of the taxed costs
from the date of the
settlement or taxation thereof.’
[17]
It is patently incorrect that I misunderstood that the parties did
not agree on the payment of costs on party and party
scale.
Obviously, they did. T
he question of the
plaintiff’s waiver to avail herself of the reconsideration was
not decisive. As stated in the judgment,
the nub of this case lay in
the last agreement concluded between the parties on 14 March 2023,
which led to the consent order of
15 March 2023 and the weight to be
attached to that.
[18]
The law on settlement agreements is well-established. A compromise
(
transactio)
,
whether extra-judicial or embodied in an order of the Court, has the
effect of
res
judicata.
[4]
The
consent order brings finality to the
lis
between
the parties; the
lis
becomes
res
judicata, ‘
a
matter judged’. It changes the terms of a settlement agreement
to an enforceable court order.
[5]
[19]
Nkuna
is manifestly distinguishable. It is not authority for
the proposition that a party can call in aid the
Calderbank
principles when parties had settled the dispute by means of an
agreement. In any event, in
Nkuna
, the trial ran its full
course, and the judgment was handed down in favour of the plaintiff
following the evaluation of the evidence.
In this case, the trial did
not run to its completion but was settled on the capital sum, costs,
and other matters incidental thereto,
save on the question of
interest. This effectively terminated the
lis.
The plaintiff
failed in her bid to invoke the
Calderbank
offer not primarily
because of the purported marginal difference between what the
defendant tendered in response to her second
secret offer. More fatal
to her quest to seek reconsideration of costs was that she had agreed
with the defendant to settle the
costs on party and party scale as
contained in the consent order.
Giving effect to
an agreement freely made is appropriate.
Nothing prevented the
plaintiff, if she wished to rely on that principle, from requesting
the Court to reserve the question of costs
for later adjudication
when granting the agreed order, as she did with the payment of
interest on the capital sum awarded. Instead,
she took a consent
order that settled all the issues.
[20]
As to the reconsideration of costs in respect of the first judgment
(which concerned the interest), it bears repeating
that
the argument on reconsideration of costs in respect of that judgment
attracted a similar reasoning as in the main application
for
reconsideration and had to suffer the same fate. If the question of
interest was self-standing as the plaintiff sought to suggest,
then
it makes no sense that she would invoke the
Calderbank
principle on the first judgment’s cost order as opposed to
seeking leave to appeal against those costs.
[21]
The plaintiff is required to show that the defendant acted
unreasonably in not accepting the plaintiff’s
Calderbank
offer.
[6]
No
unreasonable conduct on the part of the defendant was shown.
[22]
The
applicability
of
the
Calderbank
principle was not disputed
in
Itokolle-Clinix
Private Hospital (Pty) Ltd v MNT obo DORM
[7]
.
There,
SCA confirmed the High Court's decision on appeal, in which the
principle had been invoked. The
Calderbank
offer
and its purpose of curbing unnecessary litigation are recognised
principles not only in the High Courts but also in the SCA.
Nothing
on this aspect requires the attention of the Full Court or the SCA,
nor is there anything in the judgment that disturbs
the application
of the
Calderbank
principle. The law on the effect of a settlement agreement is also
not res nova. It is firmly entrenched.
[8]
[23]
A court of appeal will not lightly interfere with a costs order, let
alone one which was conceived through an agreement
between the
parties, as in this case. The mere fact that a court of appeal might
have made an order that is different from the
high court’s
costs order is not a basis to interfere with the exercise of that
high court’s discretion.
[9]
[24]
The plaintiff did not show 'sufficient cause' warranting the Court's
exercise of discretion in condoning the late filing
of the
application for leave to appeal. The upshot of this is that there are
no reasonable prospects of success on appeal. Stated
otherwise, I am
not swayed that another Court may come to a different conclusion.
Where the prospects of success on appeal are
non-existent, there
would be no point in granting condonation.
[10]
Therefore, the application for condonation and the application for
leave to appeal itself must fail.
[25] The defendant
sought costs on a party and party scale, including costs for the
employment of two counsel on scale C.
One more, I am of the view that
the issues raised in the application were not intricate. They were a
repeat of what was canvassed
in the main application for
reconsideration of costs and dealt with in the second Judgment.
Accordingly, scale B would be appropriate.
The costs of 07
November 2025
[26] The residual
issue concerns the wasted costs for the proceedings of 07 November
2025. The plaintiff argued that the defendant
should bear those
costs, whereas the defendant argued that each party should pay its
own costs. It is so that the defendant did
not, from the outset,
oppose the plaintiff’s application for condonation but did so
on 06 November 2025, the eve of the hearing,
in his heads of
argument. In truth, neither party was prepared to argue the
applications on 7 November 2025. However, the plaintiff
could not
proceed primarily because the defendant made certain allegations in
his heads of argument, which prompted the plaintiff
to request a
postponement to file an affidavit in response. In the end, the
defendant did not persist with the allegations. As
I see it, the
defendant occasioned the postponement. Consequently, he must pay the
wasted costs.
In the result, the
following order is made:
Order:
1.
The application for leave to appeal by the
Member of the Executive Council for Health: Northern Cape Province,
under case No:
2250/2016,
is
dismissed with costs on party and party scale; such costs are to
include the costs consequent upon the employment of two counsel
on
scale B, as set out in
rule 67A
read with rule 69 of the Uniform
Rules of this Court.
2.
The application for condonation of the late
filing of the application for leave to appeal by Ms
Davidene
Chanelle Arends
(Ms
Arends), under case No:
2250/2016,
is dismissed with costs,
such
costs are to include the costs consequent upon the employment of two
counsel on scale B, as set out in rule 67A read with rule
69 of the
Uniform Rules of this Court.
3.
The application for leave to appeal by Ms
Arends under case No:
2250/2016
is
dismissed with costs on party and party scale; such costs are to
include the costs consequent upon the employment of two counsel
on
scale B as set out in rule 67A read with rule 69 of the Uniform Rules
of this Court.
4.
The defendant is to pay the wasted costs in
respect of the proceedings of 7 November 2025.
M V PHATSHOANE
DEPUTY JUDGE PRESIDENT
Appearances
For the
plaintiff:
Adv WP De Waal
SC (with Adv CH Botha)
Instructed
by:
Elliot Maris
Attorneys, Kimberley.
For
the defendant:
Adv RT
Williams SC (with Adv S Mahomed)
Instructed by:
Robert Charles
Attorneys, Kimberley.
[1]
Caratco
(Pty) Ltd v Independent Advisory (Pty) Ltd
2020
(5) SA 35
(SCA) para 2.
[2]
1992
(1) SA 893
(W)
at
895H-896.
[3]
[2024]
ZANCHC 78
;
[2024]
4 All SA 476
(NCK)
.
[4]
Gollach
& Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co
(Pty) Ltd and Others
1978 (1) SA 914
(A) at 922C.
[5]
Eke
v Parsons
2016
(3) SA 37
(CC) para 31.
[6]
Itokolle-Clinix
Private Hospital (Pty) Ltd v MNT obo DORM
(863/2024)
[2025] ZASCA 153
(16 October 2025) para 49.
[7]
Ibid
para
50.
[8]
Eke
v Parsons
2016
(3) SA 37 (CC).
[9]
Itokolle-Clinix
Private Hospital (Pty) Ltd v MNT obo DORM (supra)
para
55.
[10]
Melane
v Santam Insurance Co Ltd
1962 (4) SA 531
(A) at 532D.