Member of the Executive Council for Health And Social Development of the Gauteng Provincial Government b Mathebula and Others (2012/22469) [2016] ZAGPJHC 187 (4 July 2016)

Member of the Executive Council for Health And Social Development of the Gauteng Provincial Government b Mathebula and Others (2012/22469) [2016] ZAGPJHC 187 (4 July 2016)

The court found that by appointing the State Attorney to represent it, the applicant created the impression of authority to settle the claim. There was no indication to the first respondent's legal representatives that the settlement was against instructions, and they reasonably believed the State Attorney and counsel had authority. The applicant is thus bound to the settlement agreement on the basis of apparent authority. The application for rescission fails as none of the jurisdictional facts under Rule 42 were established, and no justus error or lack of authority sufficient to vitiate consent was proven. The applicant acted unreasonably in its conduct and is liable for attorney and...

Citation
[2016] ZAGPJHC 187
Parties
Applicant: Member of the Executive Council for Health and Social Development of the Gauteng Provincial Government; Respondent: Mathebula, Agreement on behalf of N S M; Respondent: Lekabe, Kgosi Gustav; Respondent: Phokowane, Khuduga; Respondent: Minister for the Department of Justice & Constitutional Development; Respondent: Sheriff for the District of Johannesburg Central
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
4 July 2016
Case Number
2012/22469
Procedural Posture
Review Application / Application for Rescission of Consent Order
Outcome
Application dismissed with costs on attorney and client scale against the applicant.
Judges
Boruchowitz
Legal Topics
Authority of State Attorney, Consent Judgment, Justus Error, Apparent Authority, Cooperative Government, Rescission of Judgment
Civil Procedure Delict Constitutional Law Authority of State Attorney Consent Judgment Justus Error Apparent Authority Cooperative Government +1 more

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Parties

Member of the Executive Council for Health and Social Development of the Gauteng Provincial Government

Applicant

Mathebula, Agreement on behalf of N S M

Respondent

Lekabe, Kgosi Gustav

Respondent

Phokowane, Khuduga

Respondent

Minister for the Department of Justice & Constitutional Development

Respondent

Sheriff for the District of Johannesburg Central

Respondent

Procedural Posture

Review Application / Application for Rescission of Consent Order

Legal Issues

  1. 1 Whether the State Attorney had actual or apparent authority to settle the claim on behalf of the applicant.
  2. 2 Whether the consent order can be rescinded on grounds of justus error or lack of authority.
  3. 3 Whether the applicant is estopped from denying the authority of its legal representatives.

Ratio Decidendi

The court found that by appointing the State Attorney to represent it, the applicant created the impression of authority to settle the claim. There was no indication to the first respondent's legal representatives that the settlement was against instructions, and they reasonably believed the State Attorney and counsel had authority. The applicant is thus bound to the settlement agreement on the basis of apparent authority. The application for rescission fails as none of the jurisdictional facts under Rule 42 were established, and no justus error or lack of authority sufficient to vitiate consent was proven. The applicant acted unreasonably in its conduct and is liable for attorney and...

Court Disposition

Application dismissed with costs on attorney and client scale against the applicant.

Orders

  • The application is dismissed with costs.
  • The applicant is to pay the first respondent’s costs on the attorney and client scale, including the costs of two counsel.