THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not Reportable
Case no: 1009/2021

In the matter between:

MINISTER OF POLICE

APPELLANT

and

PIERRE CHRISTO VAN DER WATT

FIRST RESPONDENT
THE SHERIFF, PRETORIA CENTRAL

SECOND RESPONDENT

Neutral citation:
Minister of Police v Van der Watt and Another (1009/2021) [2022]
ZASCA 114 (21 July 2022)
Coram:
PETSE DP and PLASKET and MOTHLE JJA and TSOKA and
SALIE-HLOPHE AJJA
Heard:
19 May 2022
Delivered:
21 July 2022
Summary:

Judgments and orders – compromise agreements made orders of
court – State Attorney conceding merits and quantum against the Minister of Police
against express instructions – State Attorney’s ostensible authority – rescission –
rescission in terms of the Uniform Rule 42(1)(a) – grounds of rescission of agreements
under common law are only fraud and just error or just cause – compromise agreements
not tainted by fraud and just error – no illegality found.

______________________________________________________________________
ORDER
______________________________________________________________________
On appeal from: Gauteng Division of the High Court, Pretoria (Kubushi, Molopa-Sethosa
and Janse van Niewenhuizen JJ concurring, sitting as court of appeal):
The appeal is dismissed with costs, including the costs of two counsel.
The Registrar of this Court is directed to send a copy of this Judgment to the
Minister of Justice and Correctional Services and the Legal Practice Council and draw
their attention of paras 30 and 31 of the judgment.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
Tsoka AJA (Petse DP and Plasket and Mothle JJA and Salie-Hlophe AJA
concurring):

[1] This appeal concerns an unsuccessful application for the rescission of two consent
court orders granted on 22 October 2015 and 10 February 20171 by the Gauteng Division
of the High Court  pursuant to two settlement agreements concluded by the State Attorney
on behalf of the appellant, the Minister of Police (the Minister), and the first respondent’s
legal representatives.

[2] The first respondent is Mr Pierre Christo Van der Watt (Mr Van der Watt) and the
second respondent is the Sheriff: Pretoria Central. Although the second respondent is
cited in this matter as a party, it played no role both in the court below and in this Court.
The Sheriff was cited merely as a party who had executed the warrant of execution
pursuant to the two orders referred to above.

1 The first order was granted by Ledwaba DJP and Louw J granted the second order.

[3] The facts foundational to the appeal are in the main common cause. They are as
follows. At about 20h00 on 3 March 2013, the police were summoned by Ms Elmarie Van
der Watt (Ms Van der Watt) to attend a domestic complaint at Mr Van der Watt’s residence
as the latter was assaulting and threatening to kill the former, his wife. Mr Van der Watt’s
actions traumatised their children who, on arrival of the police, were crying. Ms Van der
Watt reported to the police that her husband was using steroids.

[4] Undeterred by the presence of the police, Mr Van der Watt who was holding a
bottle of alcohol, charged towards the police while hurling insults at them and threatening
to kill his wife. Mr Van der Watt not only threatened to kill his wife in the presence of the
police, but also verbally abused the police including using the offensive 'K . . . word'.

[5] The traumatised Ms Van der Watt requested the police to accompany her to fetch
her clothing in order to leave her husband. While still in the house, Mr Van der Watt
assaulted the police with the result that the police were forced to handcuff him to bring
the situation under control. While going downstairs with the handcuffs Mr Van der Watt
stumbled as he was still wrestling with the police and rolled downstairs. He sustained
injuries. He was then arrested and taken to the police cells. Later, he was taken to hospital
for medical treatment while still under police guard.

[6] Warrant Officer Du Toit laid criminal charges against Mr Van der Watt for assault
and resisting arrest. The latter did not, however, lay criminal charges against the police
for the injuries sustained in the incident. As Ms Van der Watt was financially depended
on her husband, she did not press charges against him. This resulted in the public
prosecutor declining to prosecute Mr Van der Watt as the former formed an opinion that
there were no prospects of conviction. The charges against Mr Van der Watt were
withdrawn. He was then released from custody.

[7] Subsequent to his release from detention on 17 March 2013, Mr Van der Watt
instituted an action for damages against the Minister for unlawful arrest, detention and
assault. The Minister defended the action and was represented by Ms Nangomoso

Qongqo of the State Attorney's office who, on 13 February 2015, wrote a letter to the
Minister advising the Minister that ‘we are of the opinion that we have a case to fight for’.
On the same date, the Minister was advised that Mr Mduduzi Thabethe had been briefed
as counsel and that from then on, he would be handling the matter on behalf of the
Minister.

[8] After the close of the pleadings, the action was enrolled for trial on 22 October
2015. All the Minister’s witnesses who were to testify in resisting Mr van der Watt's claims,
were present in court. On the day of the trial, Ms Qongqo telephoned Colonel Mahube,
the police officer responsible for litigation in the South African Police Service in the North
West Province, for a mandate to settle the issue of liability. Colonel Mahube refused to
give Ms Qongqo the requested mandate as the latter had previously advised that the
police had a good case against Mr Van der Watt’s action.

[9] Notwithstanding the expressed mandate to resist liability, Ms Qongqo and Mr
Thabethe proceeded to settle the issue of liability on the basis that the Minister would be
liable for 50% of Mr Van der Watt's proven damages. A settlement agreement between
the parties was then concluded whereafter Ledwaba DJP was approached to make the
settlement agreement an order of court. On 6 May 2016, surprised by the turn of events,
the Minister, through Colonel O R Sebusho, instructed the State Attorney to apply for
rescission of the order made by Ledwaba DJP on 22 October 2015. At the same time, the
Minister requested Ms Qongqo to hand over the matter to a different attorney in the State
Attorney’s offices as the police were dissatisfied with the manner in which the matter was
handled by Ms Qongqo. Ms Qongqo, however, insisted that she had instructions to
concede liability. Nevertheless, she handed over the file to her superior, Mr Isaac Chowe,
for the file to be given to Ms Mokgale in the State Attorney’s offices.

[10] On 31 May 2016 Ms Qongqo advised Colonel Sebusho that Ms Mokgale had
indicated that she was in no position to take over the matter. In the meantime, the issue
of quantum was enrolled for trial before Louw J. As the parties had settled the issue of
quantum, on 10 February 2017, Louw J made the settlement agreement an order of court.

Prior to the issue of quantum having been settled and the settlement agreement made an
order of court, on 9 January 2017, Mr Van der Watt amended the particulars of claim by
increasing the amount of damages claimed in respect of the head of damages relating to
the assault.

[11] On 10 May 2017, the Minister launched an application in terms of rule 42(1) of the
Uniform Rules of Court for the rescission of the two consent orders concerned, on the
basis that such orders were erroneously sought or granted as contemplated in rule 42(1).
In the alternative, it was asserted that the two court orders were granted as a result of
iustus error.

[12] The application served before Van der Westhuizen AJ. After hearing argument,
the court dismissed the application with costs.

[13] Aggrieved by the dismissal of the application, the Minister launched an application
for leave to appeal the order made. On 25 September 2018, the court dismissed the
application for leave to appeal with costs. In due course, the Minister petitioned this Court
for leave to appeal. On 30 May 2018, this Court granted leave to appeal to the full court
of the Gauteng Division of the High Court. The appeal served before Kubushi, Molopa-
Sethosa and Janse van Niewenhuizen JJ. Again, the Minister was unsuccessful as the
full court dismissed the appeal with costs. The Minister again launched a petition to this
Court for special leave to appeal the order of the full court. On 31 August 2021, this Court
granted the Minister special leave to appeal the order of the full court. This is the appeal
now before us.

[14] The focus of the appeal is the alleged lack of authority of the State Attorney to
conclude the two impugned settlement agreements on behalf of the Minister. The Minister
contended that as Ms Qongqo and Mr Thabethe lacked the requisite  authority to conclude
the two settlements agreements, which were later made orders of the court, the
settlement agreements were void and unenforceable and therefore fell to be rescinded
because, in terms of rule 42(1)(a) of the Uniform Rules, they were erroneously sought or

granted.

[15] Rule 42(1), in relevant part, provides:
‘(1) The court may, in addition to any other powers it may have, mero motu or upon the application
of any party affected, rescind or vary:
(a)    An order or judgment erroneously sought or erroneously granted in the absence of any
party affected thereby;
(b)    . . .
(c)    . . .’

[16] The remedy sought by the Minister in seeking to rescind or vary the two court
orders concerned in terms of rule 42(1)(a), is not available to him. On a proper reading,
rule 42(1)(a) is available only to a party in whose absence the order sought to be
rescinded was either erroneously sought or erroneously granted. Here it is common
cause that the Minister was legally represented by the State Attorney and counsel when
the impugned orders were granted by Ledwaba DJP and Louw J. Thus, on this basis
alone, the appeal falls to be dismissed.

[17] The real issue in this appeal is whether the State Attorney and counsel had
apparent (or ostensible) authority to conclude the settlement agreements that resulted in
the two court orders being made. In the present matter, it is undisputed that when the two
court orders were made, the State Attorney and counsel, on behalf of the Minister, had
no actual authority to compromise the claim against their principal. On the contrary, all
indications are that Ms Qongqo and Mr Thabethe acted contrary to the Minister's express
instructions to resist the claim which were conveyed to them in unequivocal terms by
Colonel Mahube.

[18] In Makate v Vodacom (Pty) Ltd2 the Constitutional Court explained the concept of

2 Makate v Vodacom (Pty) Ltd [2016] ZACC 13; 2016 (6) BCLR 709 (CC); 2016 (4) SA 121 (CC) para 65.

apparent authority as follows:
‘. . .The concept of apparent authority as it appears from the statement by Lord Denning, was
introduced into law for purposes of achieving justice in circumstances where a principal had
created an impression that its agent has authority to act on its behalf. If this appears to be the
position to others and an agreement that accords with that appearance is concluded with the
agent, then justice demands that the principal must be held liable in terms of the agreement. . .’

[19] In this case, the Minister created the impression that the State Attorney and
counsel who represented him at the material times had authority to act on his behalf. Mr
Van der Watt and his counsel were under the impression that the State Attorney and her
counsel had authority to conclude the settlement agreements on behalf of the Minister. It
is undisputed that Mr Van der Watt and his counsel were unaware that the State Attorney
and her counsel had no actual authority, nor has there been any suggestion that Mr Van
der Watt and his counsel committed fraud to induce the Minister's legal representatives
to conclude the impugned compromise agreements. Indeed, before us counsel for the
Minister expressly disavowed any reliance on fraud or any kind of improper conduct on
the part of Mr Van der Watt or his legal representatives. Accordingly, the interests of
justice dictated that the Minister should be held liable in terms of the settlement
agreements.

[20] In MEC for Economic Affairs, Environment & Tourism: Eastern Cape v Kruizenga
and Another3 this Court, dealing with the apparent authority of a legal representative to
bind a client at a pre-trial conference convened in terms of rule 37 of the Uniform Rules,
reasoned that:
‘. . . The proper approach is to consider whether the conduct of the party who is trying to resile
from the agreement has led the other party to reasonably believe that he was binding
himself. Viewed in this way it matters not whether the attorney acting for the principal exceeds his
actual authority or does so against his client’s express instructions. The consequence for the other

3 MEC for Economic Affairs, Environment & Tourism: Eastern Cape v Kruizenga and Another [2010]
ZASCA 58; 2010 (4) SA 122 (SCA) ; [2010] 4 All SA 23 (SCA) para 20.

party, who is unaware of any limitation of authority, and has no reasonable basis to question the
attorney’s authority, is the same. That party is entitled to assume, as the respondents did, that
the attorney who is attending the conference clothed with an ‘aura of authority’ has the necessary
authority to do what attorney’s usually do at a rule 37 conference – they make admissions,
concessions and often agree on compromises and settlements. In the respondents’ eyes the
State Attorney quite clearly had apparent authority.’

[21] In Moraitis Investments (Pty) Ltd and Others v Montic Diary (Pty) Ltd and Others4
(Moraitis) this Court pointed out that the proper enquiry is, however, not to start with the
settlement agreement concluded but to start with the court order made. The court
reasoned that, as long as the court order exist, it cannot be disregarded. It remains valid
and extant until set aside.

[22] In Eke v Parsons5, the Constitutional Court described the effect of court orders
thus:
‘The effect of a settlement order is to change the status of the rights and obligations between the
parties. Save for litigation that may be consequent upon the nature of the particular order, the
order brings finality to the lis between the parties; the lis becomes res judicata (literally, “a matter
judged”). It changes the terms of a settlement agreement to an enforceable court order. . .’
And that :
‘. . . Generally, litigation preceding enforcement will relate to non-compliance with the settlement
order, and not the merits of the original underlying dispute. That means the court will have been
spared the need to determine that dispute, which – depending on the nature of the litigation –
might have entailed many days of contested hearing.’

[23] In the present matter, the lis between the parties, namely the merits and quantum
of the action, as a result of the two court orders, became res judicata. That is the end of
the enquiry as the lis between the parties is no longer alive. It being common cause that

4 Moraitis Investments (Pty) Ltd and Others v Montic Diary (Pty) Ltd and Others [2017] ZASCA 54; [2017] 3
All SA 485 (SCA); 2017 (5) SA 508 (SCA) para 10.
5 Eke v Parsons [2015] ZACC 30; 2015 (11) BCLR 1319 (CC); 2016 (3) SA 37 (CC) paras 31 and 32.

the two court orders were not obtained as a result of fraud on the part of Mr Van der Watt
or his legal representatives, the court orders concerned are thus valid and enforceable.
The full court can thus not be faulted for dismissing the Minister’s appeal on the basis that
the application for rescission of the court orders were not erroneously sought or granted.

[24] The Minister had a second arrow in his bow. Both in the court of first instance and
the full court, the Minister argued that as the settlement agreements were concluded in
the absence of authority, the resultant court orders are invalid and thus ought to have
been set aside. The foundation for this argument was the principle of iustus error.

[25] The Minister’s reliance on the principle of iustus error, is ill founded. As pointed out
in Moraitis, this principle can be relied upon only if the legal consequences of valid
settlement agreements are to be avoided but not where a party, such as the Minister,
contends that, in the absence of actual authority, there were no settlement agreements.

[26] In this Court, as in the full court, the Minister contended that as the two impugned
court orders are inconsistent with the principle of legality, the foundational basis of the
rule of law, they fell to be rescinded. The contention is based on the fact that, firstly, once
the first court order was made, Mr Van der Watt impermissibly augmented his cause of
action, and secondly, on the authority of Kunene and Others v Minister of Police
(Kunene),6 a decision of this Court, the two court orders ought to be rescinded.

[27] In my view, the Minister’s contentions  are devoid of merit. The facts in Kunene are
materially distinguishable from the facts in the present matter. In Kunene it was not merely
an augmentation of the pleaded cause of action, but rather the introduction of a new cause
of action. In the present matter no new cause of action was introduced. What Mr Van der
Watt did was merely to increase the quantum of damages sought under various heads.
In contrast, in Kunene, after the granting of the court order, a new cause of action for

6 Kunene and Others v Minister of Police (260/2020) [2021] ZASCA 76.

assault was introduced after the court had granted an order in relation to the issue of
liability. As a result, this Court found that this should have aroused suspicions that the
State Attorney and counsel had no authority to bind the Minister.

[28] In Kunene, the relevant court order was rescinded based on the fact that it was a
product of a myriad of fraudulent activities by both the State Attorney and her counsel. As
already mentioned, in the present matter there is no suggestion of fraud on the part of the
State Attorney and her counsel.

[29] It is apt to restate what this Court said in Kunene.7 It said:
‘The high court thus correctly concluded that Mr Lekabe did not act in good faith and was intent
on subverting the law and his client’s interests. Such fraudulent conduct is inimical to the rule of
law and cannot form a legitimate basis for the Minister’s liability. No public servant has authority
to subvert the constitutional principles on which the very idea of public confidence is founded.’

[30] Before making the order, it is unfortunately necessary to address one disturbing
issue that emerges from the record. A perusal of the record reveal that Ms Qongqo, the
State Attorney that was assigned to represent the Minister and Mr Thabethe, counsel who
was briefed in the matter, concluded compromise agreements with the respondent's legal
representatives in breach of express instructions from Colonel Mahube, representing the
Minister, to resist the respondent's claim. On the date on which the trial was supposed to
commence the Minister had all his witnesses in attendance in court ready to testify on his
behalf. Instead, the matter did not go on trial but was settled, so it would appear from the
record, against the Minister's express instructions to contest the claim.

[31] How it came about that the Minister's explicit instructions were not carried out and,
in fact, defied is not clear from the record. Be that as it may, this is a matter that warrants
investigation both by the Minister of Justice and Correctional Services on the one hand

7 Kunene and Others v Minister of Police (260/2020) [2021] ZASCA 76 (10 June 2021) para 47.

and the Legal Practice Council on the other with a view to establish where things went
wrong. And in particular whether any disciplinary action needs to be taken against
Ms Qongqo and Mr Thabethe or both. Thus, it behoves this Court to direct that a copy of
this judgment should be brought to the attention of the Minister of Justice and Correctional
Services and the Legal Practice Council for a thorough investigation.

[32] The conclusion reached is that the full court did not misdirect itself in dismissing
the appeal before it. The Minister’s present appeal must thus fail.

[33] In the result, the following order is issued:
The appeal is dismissed with costs, including the costs of two counsel.
The Registrar of this Court is directed to send a copy of this Judgment to the
Minister of Justice and Correctional Services and the Legal Practice Council and draw
their attention of paras 30 and 31 of the judgment.

___________________
M TSOKA
ACTING JUDGE OF APPEAL

Appearances:

For the appellants:

DT Skosana SC (with S Mbhalati)
Instructed by:

S Ngomane Inc, Pretoria

Phatshoane Henney Attorneys, Bloemfontein

For the respondent:

AB Rossouw SC (with J C Van Eeden)
Instructed by:

Gildenhuys Malatji Inc., Pretoria

Pieter Skein Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
21 July 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does
not form part of the judgments of the Supreme Court of Appeal
Minister of Police v Van der Watt and Another [2022] ZASCA 114 (21 July 2022)
Today the Supreme Court of Appeal (SCA) dismissed an appeal from the Gauteng Division of
the High Court, Pretoria (high court). The appeal concerned the unsuccessful application for
the recission of two consent orders granted by the high court pursuant to two settlement
agreements concluded between the State Attorney on behalf of the appellant, the Minister of
Police (the Minister) and the first respondent’s legal representatives.
The cause of action arose from a claim for damages by the First respondent against the Minister
for unlawful arrest, detention and assault in the high court. The matter was defended. The
minister was represented by the office of the State Attorney. On the day of the trial, the police
officer responsible for litigation in the South African Police Service in the North West Province
was phoned by the attorney in question for a mandate to settle the issue of liability. The mandate
was refused, as the police were previously advised that they had a strong case against the first
respondent. Nevertheless, the expressed mandate to resist liability was ignored and the issue of
liability was settled on the basis that the Minister was responsible for 50% of the first
respondent’s proven damages. The settlement agreement in terms of the merits was accordingly
made an order of court. In the meantime, the issue of quantum had been enrolled for trial in the
high court. The quantum was also settled between the legal representatives and the resultant
settlement agreement was also made an order of court.

The Minister launched an application in terms of rule 42(1)(a) of the Uniform Rules of Court
for the rescission of the order made by the high court, and argued that the order was erroneously
sought or granted. In the alternative, it was argued that the orders were granted as a result of
iustus error. The application was dismissed.
Aggrieved by the dismissal, the Minister launched an application for leave to appeal in the high
court. The application was dismissed which prompted the Minister to launch an application for
leave to appeal to this Court, which application focused on the alleged lack of authority of the
State Attorney to have concluded settlement agreements on behalf of the Minister. However,
this Court held that the real issue in the appeal was whether the State Attorney had the
ostensible (apparent) authority to conclude the settlement agreements at all. This Court held
that the Minister created the impression that the State Attorney, at all relevant times, had the
ostensible or apparent authority to act on his behalf, and the first respondent’s counsel were
under the same impression. In fact, counsel for the Minister expressly disavowed any reliance
on fraud or any kind of improper conduct on the part of the first respondent’s legal
representatives. Accordingly, this Court held that, in the interests of justice, the Minister should
be held liable for the settlement agreements; the SCA held that the action between the parties
had become res judicata and that the court orders concerned are valid and enforceable.
In the result, the SCA dismissed the appeal. Furthermore, the SCA directed that paragraphs 30
and 31 of this judgment, which deals with the state attorney’s apparent disregard of the
Minister’s express instructions not to settle the action, be brought to the attention of the
Minister of Justice and Correctional Services as well as the Legal Practice Council.

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