THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No:  169/09

In the matter between:

MEC FOR ECONOMIC AFFAIRS, ENVIRONMENT                         APPELLANT
& TOURISM:  EASTERN CAPE

v

KLAAS KRUIZENGA                                                          FIRST RESPONDENT
HENQUE 2189 CC t/a WIMRIE BOERDERY                SECOND RESPONDENT

Neutral citation:
MEC for Economic Affairs, Environment & Tourism v
Kruizenga (169/2009) [2010] ZASCA 58 (1 April 2010).

Coram:

Harms DP; Nugent, Cachalia, Leach JJA et Seriti AJA
Heard:

9 March 2010
Delivered:

1 April 2010

Summary:
An attorney has ostensible (apparent) authority to bind the client at a pre-
trial conference convened in terms of rule 37 of the Uniform Rules even if the effect of
the agreement is to settle an opposing party’s claim.

________________________________________________________________

ORDER
________________________________________________________________

On appeal from:  Eastern Cape High Court (Bhisho) (Van Zyl J sitting as court
of first instance).

The following order is made:

‘The appeal is dismissed with costs, including the costs of two counsel.’

________________________________________________________________

JUDGMENT
________________________________________________________________
CACHALIA JA (Harms DP, Nugent, Leach JJA and Seriti AJA concurring):

[1] This appeal deals with the question of an attorney’s ostensible (apparent)
authority to reach agreement at a pre-trial conference convened in terms of rule
37 of the Uniform Rules even if the effect of the agreement is to settle an
opposing party’s claim. The Eastern Cape High Court, Bhisho (Van Zyl J)1 held
that by instructing the State Attorney to defend the action and to brief counsel to
conduct his defence, the appellant represented to the outside world that his legal
representatives had ‘the usual authority that applies to their office’. And by not
informing the respondents that their authority was limited, he ‘must reasonably
have expected that persons who dealt with his agents would believe that they
had the authority to compromise the claims’. So, the court concluded, he was
estopped (prohibited) from denying the authority of his legal representatives to
agree to the settlement.2 The learned judge thus held that the appellant was not

1 MEC for Economic Affairs, Environment and Tourism v Kruisenga 2008 (6) SA 264 (CkHC).
2 Para 69.

entitled to escape the consequences of the agreement which his legal
representatives had made. He also refused the appellant leave to appeal but this
court granted the necessary leave.

[2] The dispute forms part of the litigation in a trial action in which the two
respondents claim damages from the appellant in his representative capacity
arising from an alleged negligent failure of the provincial government’s
employees to take preventative measures to contain a fire. The fire started on
provincial government property under the appellant’s control and spread to the
respondents’ adjoining properties causing extensive damage to their vegetation
and infrastructure.

[3] The factual background and chronology of the present dispute is set out in
the high court’s reported judgment and need not be repeated in detail.3 In
essence the dispute concerns whether the agreements, which the State Attorney
reached with the respondents at two rule 37 pre-trial conferences without the
appellant’s authority, are binding. The minute of the first conference, which was
signed by the parties’ attorneys some six months later, records that the appellant
had conceded ‘the merits of the plaintiff’s case and the only aspect that remains
in dispute between the parties and which remains to be resolved is that of
quantum’. The second conference was held, almost 18 months later, after the
trial judge, on the morning before the trial commenced, enquired from the parties’
legal representatives whether any attempt had been made to settle the dispute
over quantum. The matter then stood down for the parties to consider settlement
proposals. They met the following day. The minute of this meeting, which was
signed by attorneys and counsel for the parties, records the appellant to have
admitted liability for some heads of the damages claimed whilst the dispute over
the remaining heads would proceed to trial. This minute, which incorporated the
earlier agreement, was placed before the judge. The appellant then sought a
postponement of the whole case, which the judge refused in the light of the

3 Paras 1-8.

admissions made. The high court accordingly made an order based on the
admitted liability and postponed the hearing concerning the outstanding issues.

[4] Thereafter, with a view to reopening the provincial government’s case on
the merits, the appellant launched an application to rescind and set aside the
court order and to withdraw the admissions his legal representatives had made
as recorded in the pre-trial minutes. He grounded his application on an allegation
of the existence of a general practice or instruction – but unbeknown to the
respondents or their legal representatives – to the effect that the State Attorney
needed his or the head of department’s express authority to settle or compromise
a claim and concomitantly on the State Attorney’s failure to obtain his specific
authority to concede the merits of the action or to settle certain heads of damage.
(There is no suggestion that counsel, who was instructed to appear for the state,
was aware that the State Attorney lacked authority and for present purposes only
the latter’s authority is in issue.) Although there was a factual dispute concerning
the existence of the general practice the high court approached the matter on the
basis that there was such a practice. And I will likewise do so.

[5] The appellant’s application for rescission was brought under the common
law and not in terms of Uniform rules 31 or 42. Mr Buchanan, who appears for
the appellant, contends that the appointment of attorney and counsel, in itself,
does not give rise to a representation that they have full authority, not only to
conduct the litigation, but to compromise a claim or to consent to judgment
against the client. The law, he submits, requires express – not merely apparent
authority – for this purpose. And so he contends, because the State Attorney
agreed to compromise the claim in conflict with general practice – and that
judgment was granted pursuant thereto – this entitles the appellant to the relief
claimed.

[6] It is important to reiterate what was said at the outset – the issue in this
matter is whether the appellant may resile from agreements made by his

attorney, without his knowledge, at a rule 37 conference. The judgment does not
deal with agreements reached outside of the context of conducting a trial in the
normal course of events. The rule was introduced to shorten the length of trials,
to facilitate settlements between the parties, narrow the issues and to curb
costs.4 One of the methods the parties use to achieve these objectives is to
make admissions concerning the number of issues which the pleadings raise.5
Admissions of fact made at a rule 37 conference, constitute sufficient proof of
those facts.6 The minutes of a pre-trial conference may be signed either by a
party or his or her representative.7 Rule 37 is thus of critical importance in the
litigation process. This is why this court has held that in the absence of any
special circumstances a party is not entitled to resile from an agreement
deliberately reached at a rule 37 conference.8 And when, as in this case, the
agreements are confirmed by counsel in open court, and are then made a
judgment or order of a court, the principle applies with even more force.

[7] It is settled law that a client’s instruction to an attorney to sue or to defend
a claim does not generally include the authority to settle or compromise a claim
or defence without the client’s approval.9 The rule has been applied to a
judgment consented to by an attorney without his client’s authority10 and also
when the attorney did so in the mistaken belief that his client had authorised him
to do so.11 This principle accords with the rule in the law of agency that where an
agent exceeds the express or implied authority in transacting, the principal is not
bound by the transaction.12

4 LTC Harms Civil Procedure in the Supreme Court Issue 39 para B37.2.
5 Rule 37(6)(e).
6 Price NO v Allied-JBS Building Society 1980 (3) SA 874 (A) 882D-H.
7 Rule 37(6).
8 Filta-Matix (Pty) Ltd v Freudenberg & others 1998 (1) SA 606 (SCA) 614B-D.
9 Voet 3.3.18; Ras v Liquor Licensing Board, Area No. 10 Kimberley 1966 (2) SA 232 (C) 237E-F;
Goosen v Van Zyl 1980 (1) SA 706 (O) 709F-H; Bikitsha v Eastern Cape Development Board &
another 1988 (3) SA 522 (E) 527J-528A; 14 Lawsa 2 ed para 305.
10 Ntlabezo v MEC for Education, Culture and Sport, Eastern Cape 2001 (2) SA 1073 (TkHC)
1080-1081.
11 De Vos v Calitz and De Villiers 1916 CPD 465.
12 Francois du Bois et al Wille’s Principles of South African Law 9 ed (2007) p 998; See J.R
Midley Lawyers’ Professional Liability (1992) p 8, who holds the view that while the courts have

[8] But there appears to be some uncertainty in the way this principle has
been applied. Midgley observes that our courts, under the influence of English
law, have distinguished between settlements made outside of and those made
during the course of litigation – and appear to have accepted that the power to
settle a claim is one of the usual and customary powers afforded a legal
representative in the latter instance.13 So, in Mfaswe v Miller,14 an attorney’s clerk
compromised a claim on the day of the trial before the client had arrived at court.
He did so fearing that if the client did not arrive in good time default judgment
may be given against him. Thereafter the client sued his attorney for the full
amount of the original claim. The court said that the clerk had accepted the
compromise ‘in the exercise of the discretion vested in an attorney’.15 And
because he had acted in good faith, and was not negligent, the court held that
the attorney was not liable to the client in damages. Alexander v Klitzke16
provides an interesting example of an attorney’s general authority. The defendant
had alleged that his attorney’s general authority did not empower him to accept
the plaintiff’s tender of settlement, but the court disagreed, saying:

‘The authority of a power of attorney which is filed by the client, to carry his case to final
end and determination, does include authority to make a bona fide compromise in the
interests of his client, and at any rate, if a client wishes to repudiate such a compromise
made on his behalf, then I certainly think that the repudiation should be a timeous one.’17

In Klopper v Van Rensburg,18 in an ex parte application for a temporary interdict
to restrain the sale of usufructuary property, and in answer to a question from the
court, counsel stated that if security were given by the respondent for the value of

sometimes used the terms ‘mandatory’ and ‘agent’ interchangeably to describe the attorney-client
relationship, the preferable view is that when engaged in litigation on a client’s behalf the attorney
is acting as an agent and not merely as a mandatory.
13 J R Midgley ‘The Nature and Extent of a Lawyer’s Authority’ (1994) 111 SALJ 415 p 420.
14 (1901) 18 SC 172.
15 Above p 175.
16 1918 EDL 87.
17 Above at 88.
18 1920 EDL 239.

the property sold, that would meet the case. When the respondent thereafter
tendered security, and the applicant rejected it contending that counsel had no
authority to agree to a tender of security, the court held that he was bound by his
counsel’s offer as the latter ‘was only doing his plain duty (to) his client. He was
making an offer in his client’s best interests, and an offer which . . . he had every
right to make’.19

[9] However, recently, in Hawkes v Hawkes20 the court seemed to adopt a
different approach by placing emphasis on whether the agreement concluded
was in the client’s best interests, rather than on the discretion exercised by the
client’s legal representative. It held that where an advocate gave an undertaking
to the court on behalf of his client without having a mandate to that effect in the
attorney’s absence and contrary to his client’s best interests and also in conflict
with his mandate to oppose an interdict sought against his client the client was
not bound thereby. This approach resonates with the view adopted in Bikitsha v
Eastern Cape Development Board & another,21 where an attorney, before
summons had been issued, without having his client’s consent, advised his
opponent that his client was prepared to waive the ‘prescriptive period’. In
holding the client not bound by his attorney’s waiver, the court noted that ‘for acts
of great prejudice an attorney needs a special mandate’22 and ‘[a] general
mandate does not authorise an attorney to act in a manner adverse to his client’s
interests’.23

[10] The courts have also distinguished the ambit of the authority of attorneys
in private practice from that accorded to the State Attorney holding that the latter
has wider general authority because such authority is derived from statute.24 It
has thus been held that the fact that a senior government official is unaware of

19 Above p 242.
20 2007 (2) SA 100 (SE).
21 Cited above, n 9.
22 At 527I-J.
23 At 528A.
24 Section 3 of the State Attorney Act 56 of 1957.

and has not expressly approved of a settlement concluded by counsel on the
Deputy State Attorney’s instructions does not entitle the government to resile
from the settlement.25 Moult v Minister of Agriculture and Forestry, Transkei26
provides a clearer example of the breadth of the State Attorney’s authority. The
plaintiff sued the government for damages arising out of a motor-vehicle collision
– but out of the twelve-month statutory expiry period. The State Attorney, as in
Bikitsha,27 had previously waived strict compliance with this requirement. The
government alleged that it was not bound by the waiver. Beck CJ, however,
distinguished those cases involving private attorneys, such as Bikitsha, and held
that the waiver ‘was of a kind which Government ordinarily leaves to the
Government attorney to decide’. He found that the State Attorney’s authority
derives from ‘the particular capacity in which the agent has been employed by
the principal and from the usual and customary powers that are found to pertain
to such an agent as belonging to a particular category of agents’.28

[11] To summarise it would appear that our courts have dealt with questions
relating to the actual authority of an attorney to transact on a client’s behalf in the
following manner: Attorneys generally do not have implied authority to settle or
compromise a claim without the consent of the client. However, the instruction to
an attorney to sue or defend a claim may include the implied authority to do so
provided the attorney acts in good faith. And the courts have said that they will
set aside a settlement or compromise that does not have the client’s authority
where, objectively viewed, it appears that the agreement is unjust and not in the
client’s best interests. The office of the State Attorney, by virtue of its statutory
authority as a representative of the government, has a broader discretion to bind

25 Dlamini v Minister of Law and Order & another 1986 (4) SA 342 (D).
26 1992 (1) SA 688 (TkGD) 692H-I.
27 Above para 9.
28 Above at 692H-I citing Botha J in Inter-Continental Finance and Leasing Corporation (Pty) Ltd v
Stands 56 and 57 Industria Ltd & another 1979 (3) SA 740 (W) at 748D.

the government to an agreement than that ordinarily possessed by private
practitioners, though it is not clear just how broad the ambit of this authority is.29

[12] My discussion thus far has been concerned with the limits of an attorney’s
actual authority to bind a client without the latter’s consent. The question arises in
this case is whether a client may be estopped from denying the authority of his
attorney to settle or compromise a claim.30

[13] The issue arose in this court in Hlobo v Multilateral Motor Vehicle
Accidents Fund.31 The case concerned a claimant’s claim for compensation on
behalf of her minor daughter, who had been injured in a motor vehicle accident.
A settlement agreement, which had been preceded by months of negotiation
during litigation, was concluded by Messrs Lowe and De la Harpe, who
respectively acted as attorneys for the claimant and the Fund. De la Harpe
submitted proposals for the final form of the agreement to the Fund. As in this
case, the proposals were recorded in a rule 37 minute. A letter from the Fund’s
claims-handler, confirmed its acceptance of the proposals. And acting on this
confirmation De La Harpe settled the claim. The Fund then sought to have the
agreement set aside on the ground that the agreement concluded between the
parties’ attorneys had been reached on the strength of a communication from the
claims-handler who had no power to authorise the settlement. The court rejected
the Fund’s defence. In the course of its judgment it said the following:

‘What all this shows is that in his dealings with Mr De la Harpe, Mr Lowe would have had
no reason to question his (De la Harpe's) authority. He in fact did not do so. From
Mr Lowe's point of view De la Harpe had at least ostensible authority to conclude the
settlement. All the requirements which must be satisfied before reliance upon ostensible
authority can succeed were satisfied. Respondent had appointed Mr De la Harpe as its
attorney. It was known to it that he was conducting settlement negotiations on its behalf.

29 See Generally J R Midgley ‘The Nature and Extent of a Lawyer’s Authority’ (1994) 111 SALJ
415.
30 Ras v Liquor Licensing Board (above) n 9 at 238G-H.
31 2001 (2) SA 59 (SCA).

It allowed him to do so and in so doing clothed him with apparent authority to settle on its
behalf. The appellant, through her attorney, relied upon the apparent existence of
authority and compromised the claim on the strength of its existence. Absent any other
defence, the settlement is binding upon the respondent. In fact, of course, he had
express authority which it is now sought to repudiate.’32

[14] The facts in Hlobo differ from the present one because there the attorney,
De La Harpe, was found to have had actual authority to conclude the agreement
– a point which Mr Buchanan pressed in argument in an effort to distinguish it.
The passage cited above dealing with De la Harpe’s apparent authority in the
judgment is, I accept, obiter. But, as I will show below, this does not detract from
its persuasive quality. I turn to the present matter.

[15] To establish apparent authority on the provincial government’s part, the
respondents aver that by appointing the State Attorney to defend the action
which necessarily entailed participating in various pre-trial processes, including
pre-trial conferences, it represented that he had authority to settle the claims.

[16] It is well-established that to hold a principal liable on the basis of the
agent’s apparent authority the representation must be rooted in the words or
conduct of the principal, and not merely that of his agent.33 Conduct may be
express or inferred from the ‘particular capacity in which an agent has been
employed by the principal and from the usual and customary powers that are
found to pertain to such an agent as belonging to a particular category of
agents’.34 It may also be inferred from the ‘aura of authority’ associated with a
position which a person occupies, at the principal’s instance, within an
institution.35

32 Hlobo at para 11.
33 NBS Bank Ltd v Cape Produce Co (Pty) Ltd 2002 (1) SA 396 (SCA) 412C-E; Glofinco v Absa
Bank Ltd t/a United Bank 2002 (6) SA 470 (SCA) para 13.
34 Per Botha J in Inter-Continental Finance and Leasing Corporation (Pty) Ltd v Stands 56 and 57
Industria Ltd & another 1979 (3) SA 740 (W) at 748D.
35 Glofinco v Absa Bank Ltd (above) n 34 para 1.

[17] Properly understood the representation from the principal in this case
relates only to the appointment of the State Attorney to defend the claim and to
instruct counsel in this regard. The further conduct relied on is not that of the
principal but of the agent himself and cannot in and of itself bind the principal.
The respondents’ true case is that by appointing the State Attorney to defend the
claim, the appellant represented to them, and they reasonably believed, that the
State Attorney had the usual and customary powers associated with the
appointment.36 These included instructing counsel to defend the claim, to draft
the plea and to attend all pre-trial procedures, including rule 37 conferences. In
other words the appellant represented to the respondents and the outside world
that the State Attorney had the authority not only to conduct the trial but also to
make concessions at the conferences and to conclude the settlement agreement
from which he now wishes to resile.

[18] During argument before us Mr Buchanan did not contend that the State
Attorney had no authority to attend the pre-trial conferences. He could hardly
have done so because such attendance by an attorney, as I have mentioned
earlier, is envisaged in the rule and clearly falls within the usual or customary
functions of an attorney in the litigation process. Instead his argument was that
the State Attorney’s authority was confined to attending the conference and
making certain admissions that may, in his judgment, have been necessary. But,
as I understand the submission, once he agreed to settle the claim, first by
conceding the merits and later by agreeing that his client was liable for certain
heads of the damages claimed, he not only exceeded his actual authority but
also his usual functions.

[19] Unsurprisingly Mr Buchanan had insurmountable difficulty attempting to
defend this assertion. In particular he was not able to draw the line between what
the State Attorney had the authority to agree on and what not. To test the

36 It is not the respondents’ case that by appointing the State Attorney they believed that he had
any wider or additional powers to an attorney in private practice.

assertion, suppose the attorney agreed on making certain factual admissions
without conceding liability in order to curtail the proceedings, which in hindsight
proved to have been a mistake. Realising the error he then attempts to withdraw
these admissions, but the other side refuses to allow him to do so. And faced
with the prospect of continuing the litigation at a disadvantage he agrees to a
settlement. It could hardly be asserted that the admissions fell within his usual
authority but the settlement, which amounts to a string of admissions, not. To test
the assertion further, would the admissions stand if the ‘merits’ were conceded
but not causation? And further, what if causation was conceded but not the
quantum of damages? What these intractable difficulties show ineluctably is that
it is impossible to draw any line between an attorney’s apparent authority to
attend and represent his client at a pre-trial conference and his apparent
authority to conclude agreements or make concessions there.

[20] I accept that, in this matter, by agreeing to the settlement the State
Attorney not only exceeded his actual authority, but did so against the express
instructions of his principal. As opprobrious as this conduct was, I cannot see
how this has any bearing on the respondents’ estoppel defence. 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.37 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 party, who is unaware of
any limitation of authority, and has no reasonable basis to question the attorney’s
authority, is the same.38 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

37 Hlobo para 12; Cf George v Fairmead (Pty) Ltd 1958 (2) SA 465 (A) 471A-D.
38 Cf City of Tshwane Metropolitan Municipality v RPM Bricks 2008 (3) SA 1 SCA para 12.

compromises and settlements. In the respondents’ eyes the State Attorney quite
clearly had apparent authority.39

[21] Mr Buchanan submitted further that to allow the estoppel defence where
an attorney exceeds his or her authority could lead to grave injustices and that
for policy reasons the estoppel defence should not be allowed in these
circumstances. There are two answers to this submission. First, Plewman JA
specifically recognized the competence of the defence in the passage quoted
above in Hlobo, albeit in an obiter dictum. And this court will not lightly depart
from a view it has previously expressed, even if only obiter.40 Secondly, because
estoppel is a rule of justice and equity, it is open to a court to disallow the
defence on this ground.41 It was not suggested that it would be either unjust or
inequitable to allow the defence in the circumstances of this case. Indeed, the
contrary is true. The prejudice to the respondents if the defence is not upheld is
evident – even with the appellant’s tender to pay the respondents’ wasted costs.
The respondents and their counsel prepared for trial on the basis of the
concessions and on the issues which remained in dispute – not on the merits or
on the heads of damages which were agreed upon. Moreover the appellants
have after all this time not even established a defence. To allow the appellant to
resile from these agreements, made over a period spanning 18 months, would
defeat the purpose of rule 37, which encourages settlements, and severely
hamper the conduct of civil trials. It would mean practically that attorneys can no
longer assume that their colleagues are authorised to make important decisions
in the course of litigation without the principal’s independent confirmation. This
cannot be countenanced.

39 Cf A J Kerr The Law of Agency 3 ed (1991) p 149.
40 Steenkamp v South African Broadcasting Corporation 2002 (1) SA 625 (SCA) 629F-G.
41 See generally P J Rabie and J C Sonnekus The Law of Estoppel in South Africa 2 ed (2000)
ch 7; Lord Denning in Moorgate Mercantile Co Ltd v Twitchings [1975] 3 All ER 314 (CA) at 323d-
g said: ‘(Estoppel) . . . is a principle of justice and of equity. It comes to this. When a man, by his
words or conduct, has led another to believe in a particular state of affairs, he will not be allowed
to go back on it when it would be unjust or inequitable for him to do so.’

[22] In the result I conclude that the high court was correct to hold that the
appellant is estopped from denying the authority of the State Attorney to enter
into the agreements in question.42 It follows that the appeal must fail. The order I
make is that the appeal is dismissed with costs, including the costs of two
counsel.

________________
A CACHALIA
JUDGE OF APPEAL

42 MEC for Economic Affairs v Kruizenga (above) n 1 para 69.

APPEARANCES

APPELLANTS:

R G Buchanan SC
Instructed by Wesley Pretorius and Associates,
East London
State Attorney; Bloemfontein

RESPONDENT:

H J van der Linde SC (with him P E Jooste)
Instructed by Jordaan & Pretorius Attorneys,
Plettenberg Bay
Rosendorff Reitz Barry, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
1 April 2010

Status:
Immediate

Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal.

MEC v Kruizenga

[1] The SCA today held that an attorney, who agrees at a pre-trial
conference in terms of rule 37 of the Uniform Rules to settle an opposing
party’s claim without his client’s authority, nevertheless has ostensible
(apparent) authority to bind the client to the agreement. It therefore dismissed
an appeal by the MEC for Economic Affairs, Environment and Tourism in the
Eastern Cape against a judgment of the high court in Bhisho, which had made
the same finding. It also ordered the MEC to pay the costs of the appeal,
including the costs of two counsel.

[2] The dispute formed part of the litigation in a trial action in which the two
respondents claim damages from the appellant in his representative capacity
arising from an alleged negligent failure of the provincial government’s
employees to take preventative measures to contain a fire. The fire started on
provincial government property under the appellant’s control and spread to
the respondents’ adjoining properties causing extensive damage to their
vegetation and infrastructure.

[3] In essence the dispute concerned whether the State Attorney, who had
reached certain agreements on behalf of the MEC with the respondents over
a period of 18 months at two pre-trial conferences convened in terms of rule
37, the effect of which was to settle most of the respondents’ claims, had
bound the MEC by these agreements. The MEC’s legal representatives
argued that the MEC was not bound because the State Attorney was not
authorised to make the agreements. The argument was made on the basis of
the existence of a general instruction that the State Attorney may not settle
any claim without the express authority of the MEC or the head of department.

[4] The SCA held that once the MEC had instructed the State Attorney to
defend the claim, this necessarily included his attending various pre-trial
processes, including pre-trial conferences. The MEC thereby represented to
the respondents that the State Attorney had the authority to settle the claims.
And because the respondents were unaware of any limitation of authority on
the State Attorney, it held that the MEC could not escape the consequences
of these agreements.

[5] The SCA held that to allow the MEC not to be bound by the
agreements, made over a period of 18 months, would defeat the purpose of
rule 37, which encourages settlements, and severely hamper the conduct of
civil trials. It would mean that attorneys can no longer assume that their
colleagues are authorised to make important decisions in the course of
litigation without their client’s authorisation.

[6] It thus held that the MEC was estopped (prohibited) from denying the
State Attorney’s authority to conclude the agreements in question.