IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NUMBER: 441&442/2023
Case Number 441 / 2023
REPORTABLE
In the matter between:
AS Applicant
and
THE MINISTER OF HEALTH First Respondent
THE DIRECTOR GENERAL, DEPT OF HEALTH Second Respondent
THE MINISTER OF SOCIAL DEVELOPMENT Third Respondent
AND
Case Number 442 / 2023
B MM First Applicant
JTM Second Applicant
and
THE MINISTER OF HEALTH First Respondent
THE DIRECTOR GENERAL, DEPT HEALTH Second Respondent
THE MINISTER OF SOCIAL DEVELOPMENT Third Respondent
2
___________________________________________________________________
JUDGMENT DELIVERED ELECTRONICALLY ON 19 JUNE 2024
___________________________________________________________________
KUSEVITSKY J
[1] This is an application for costs, with both matters having been consolidated
for hearing and then subsequently withdrawn by the Applicants prior to the hearing
thereof.
Brief background
[2] The consolidated applications1 challenged the constitutionality of sections 303
of the Children’s Act 38 of 2005 (“the Children’s Act”) and Regulation 10(2)(a) of the
Regulations r elating to the Artificial Fertilization of Persons 2 (“the impugned
legislation”). Both applications seek to challenge the constitutionality of the impugned
legislation as a precursor to obtaining further relief. It is apparent from both
applications, that the parties seek to avoid the requirement of securing a surrogate
mother and a court sanctioned surrogate motherhood agreement prior to
commencing artificial fertilisation. The impugned legislation requires potential
parents relying on surrogacy to have children, to secure a surrogate and to obtain a
court sanctioned agreement with the surrogate mother that will carry the child that is
yet to be conceived and carried to term.
1Both matters were issued on 17 January 2023. Case No.442/2023 was brought on an urgent basis
with a set down date of 15 February 2023. Case No. 441/2023 was not brought on an urgent basis
and scheduled for set down on 1 March 2023. On 23 January 2023, the AJP approved the
consolidation of both matters for hearing on 1 March 2023.
2 (GNR.175 of 2 March 2012 Government Gazette No. 35099)
3
[3] In the BMM application, the Applicants raised an urgent constitutional
challenge as a precursor to embryo formation of their sperm with that of the eggs of
a potential donor. They complained that the legislative requirement of having a
surrogate motherhood agreement confirmed by a court prior to the commencement
of any proceedings relating to in vitro fertilization is unconstitutional as it infringes
their rights to dignity, equality and freedom and security of the person and
specifically their section 12(2 ) (a) rights, i.e. the right to make decisions concerning
reproduction.
[4] Similarly, in the AS application, the Applicant raised a constitutional challenge
to the impugned legislation prior to seeking further relief and also sought the right to
commence artificial fertiliz ation of her stored eggs before securing a surrogate
mother.
[5] First and Second Respondents (“the Respondents”), opposed the
applications, averring, inter alia that there was no urgency and also highlighted the
inappropriateness of the constitutional challenge raised in the BMM application and
the constitutional challenge preceding the further relief sought in both applica tions.
The Respondents contend that in the absence of a challenge to section 296 of the
Children’s Act and related sections of the Regulations, the constitutional challenge
sought would serve no purpo se. They aver that in order to achieve the purpose
sought, the Applicants would have had to raise a comprehensive challenge to the
surrogacy legislative scheme. The relief obtained by the Applicants in the BMM
matter, i.e., the permission to proceed with a single extraction of eggs from their
donor, was not the relief sought by the Applicants in this matter. Section 303 of the
4
Children’s Act and section 68(3) of the National Health Act permitted the Applicants
in both matters obtaining relief without the need for raising a constitutional issue. I
raise this upfront in the consideration of whether there may have been partial
success by the Applicant. There has not been.
February 2023 hearing dates
[6] On 15 February 2023, case no. 442/2023 served before me. It was brought on
an urgent basis. At the time, counsel for the Respondents were not aware of case
no. 441/2023 that had been consolidated and accordingly had no instructions
relating to the latter matter.3 The Respondents also highlighted the non-joinder of the
Minister of Social Development. Accordingly, in both matters, on 20 February 2023
an order was granted joining the Third Respondent 4 and granting an amendment to
paragraph 1 of the notice of motion. No order as to costs were granted.
[7] On 22 February 2023, relief in the urgent application of case no. 442/2023
was argued. Interim relief was granted relating to the commencement of the pre -
extraction hormonal treatment of the donor and permitting the practitioners to do a
single extraction of the eggs of the donor on or before the 31 st March 2023 . The
eggs so extracted then had to be immediately cryopreserved. The practitioners were
also prohibited from commencing in vitro fertilization of the donor eggs, which eggs
had to remain cryopreserved until the matter was completed and finalised.
[8] In both matters, the further conduct of the matter was set out. Both
applications were postponed for hearing to the 15 th, 16th and 17th of May 2023. The
3 It is not apparent from the correspondence requesting the consolidation that the letter was copied in
to the State Attorney acting on behalf of the Respondents.
4 The State Attorney abided the decision of the court.
5
Third Respondent was ordered to file its answering affidavit by 27 March 2023 and
the First and Second Respondents were granted leave to file supplementary papers
to their existing answering affidavit by 27 March 2023. The Applicants were required
to file their replying papers by 17 April 2023. 5 Costs were to stand over for later
determination. The Applicants did not comply with the court order. The Respondents
complied with the court order by filing their respective papers timeously.
May 2023 hearing dates
[9] On 17 May 2023, the parties by agreement sought the postponement of the
matters to 5, 6 and 7 September 2023. Subject to a caveat 6, costs stood over for
later determination. Pursuant to the aforesaid order, the Applicants were to f ile their
replying papers on 5 June 2023 and th eir heads of argument before 1 August 2023.
Applicants did not comply with the court order, nor did they seek any extension of
time or make any contact with the Respondents explaining their failure to comply.
The amicus curia application
[10] On the eve of the September hearing , on 21 August 2023, a potential amicus
curiae sought to postpone the scheduled hearing dates so that they could consider
the papers and determine whether they wished to participate or not. The
Respondents indicated that they would oppose the application for admission at this
late stage of the proceedings.
5 Heads of Argument had to be filed by 24 April 2023 (Applicant) and 3 May 2023 (Respondents)
6 Para 6 of the 17 May 2023 provides as follows: “ The issue of costs to stand over for determination
noting that the Applicants in both matters failed to file their replying papers and Heads of argument,
neither in accordance with the court order signed on 23 February 2023 and stamped on 28 February
2023, or at all. Either party may approach this Court for an order of costs if the Applicants withdraw
their matters, singularly or jointly, before the re-scheduled hearing dates.”
6
[11] In this amicus application, Robynne Friedman deposed to an affidavit on
behalf of the Surrogacy Advisory Group NPC (“SAG”). They ostensibly provide free
education, advice and support to all women considering the act of surrogacy and to
persons considering becoming parents through surrogacy. They state that in October
2022, SAG filed an application in the Pretoria High Court challenging the
constitutionality of regulation 10(2)(a). This is the very same regulation that is being
challenged in the main proceedings.
[12] Notably, in relation to these averments, the Court received correspondence
from attorneys Gouse van Aarde Inc. o n 10 May 2023, seeking directions on the
basis, inter alia:
12.1 that in October 2022, “my client”, SAG , filed a constitutional challenge
to regulation 10(2)(a) of the regulations in the Gauteng High Court,
Pretoria;
12.2 that these two applications were filed on 17 January 2023, after their
client had already filed a constitutional challenge in the Gauteng High
Court, Pretoria;
12.3 they could find no issued Rule 1 6A notices at the Western Cape H igh
Court’s notice board, or with the Chief Registrar;
12.4 the State Attorney provided Wha tsapp photographs of both
applications since their emails were offline;
12.5 On 4 May 2023, SAG obtained access to the papers from the
Applicants’ attorney;
7
12 .6 “My client – and other members of the public at large – has the right in
terms of Rule 16A to know on what basis the Western Cape
applications are challenging the impugned provisions , in order to
consider whether to approach the parties, or in the alternative the
Court, to apply to be joined as amicus curia in the Western Cape
applications.” (“own emphasis”)
[13] In the merits, SAG averred that having gone through the papers, it was of the
view that the main proceedings were moot and therefore ‘not justiciable.’
[14] In its opposing affidavit, the R espondents stated that SAG themselves have
not complied with Rule 16A (2) of the Uniform Rules of Court requiring any interested
party wishing to participate in a matter raising constitutional issues to seek the
written consent of all parties to the proceedings within twenty days after the filing of
the affidavit or pleading in which the constitutional issue is first heard. They said that
at no time did SAG seek the consent of the Respondents in the main application as a
amicus curiae. In its reply, SAG averred that the Applicants in the main application,
only put up their Rule 16A notices on or about 18 August 2023. This is seven months
after the main applications were filed. They also averred that the Rule 16A
mechanism relies on the appropriate notice being placed on the court’s notice board.
Without such notice, the timeframes for an amicus curiae application cannot start
running. At this juncture, perhaps this would be an opportune time to revisit the
requirements of this rule.
8
[15] It is trite that any person raising a constitutional issue in an application or
action shall give notice thereof to the registrar at the time of filing the relevant
affidavit or pleading. 7 This notice is peremptory. The registrar shall, upon receipt of
such notice, forthwith place it on a notice board designated for that purpose. 8 The
notice shall be stamped by the registrar to indicate the date upon which it was placed
on the notice board and shall remain on the notice board for a period of 20 days.9
[16] Clearly, there is a reason why the Rule 16A notice must be stamped and
given to the registrar. This is because any interested party, as contemplated in sub -
rule (2), who wishes to participate in the proceedings challenging a constitutional
issue, may, with the written consent of all the parties to the proceedings, given not
later than 20 days after the filing of the affidavit or pleading in which the
constitutional issue was first raised, be admitted therein as amicus curiae upon such
terms and conditions as may be agreed upon in writing by the parties. If written
consent is not obtained, then the interested party may, within five days of the
expiration of the 20-day period as prescribed, apply to court to be so admitted in the
proceedings.10 Furthermore, Rule 16A (5) is contingent on compliance with Rules
16A(2), (3) and (4) and application is required to be made to the court hearing the
application within five days of the twenty -day period prescribed in sub -rule 2. Rule
16A does not make provision for an applicant to apply to a court for admission
without first seeking the written consent of the parties to the proceedings.
7 Rule 16A(1)(a)
8 Rule 16A(1)(c)
9 Rule 16A(1)(d)
10 Rule 16A (5)
9
[17] The purpose of the rule is to enable parties interested in a constitutional issue
to seek to be admitted as amici curiae , or as friend of the Court, because of its
expertise on or interests in the matter before the Court, so that they can advance
submissions in regard thereto.11
[18] Thus, it is evident, that in order for these aforementioned time periods to be
triggered, the Rule 16A notice must be issued and date stamped by the registrar at
the time of the filing of the relevant affidavit or pleading as contemplated in sub -rule
(1)(a). In my view, a failure to have the Rule 16A notice date stamped by the
registrar, would be fatal to the notice. In Phillips v SA Reserve Bank 2013 (6) SA 450
(SCA)12, the court stated the purpose of the rule thus:
“[31] Rule 16A(1)(I) has accordingly to be interpreted in the light of the purpose for which
it was enacted, viz. to bring cases involving constitutional issues to the attention of
persons who may be affected by or have a legitimate interest in such cases so that they
may take steps to protect their interests by seeking to be admitted as amici curiae with a
view to drawing the attention of the court to relevant matters of fact and law to which
attention would not otherwise be drawn ( Shaik v Minister of Justice and Constitutional
Development, supra, at 610H –I (para 24) and In re Certain Amicus C uriae Applications:
Minister of Health v Treatment Action Campaign and Others 2002 (5) SA 713 (CC) (2002
(10) BCLR 1023; [2002] ZACC 13) para 5).”
[19] Although the issue in Phillips was somewhat different 13, that court reiterated
the suggested practice to be followed with regard to compliance with Rule 16A,
being, inter alia, that when the notice, having been prepared in terms of the rule and
11 See in general Hoffmann v South African Airways 2001 (1) SA 1 (CC) at 27H-28B
12 at 459B-D
13 There, what had to be decided was whether a notice which correctly specified the statutory
provisions being attacked without specifying the grounds of the alleged inconsistency , complied with
the rule. Philips at para 55
10
handed to the registrar for the necessary action when the affidavit is filed, that it is
advisable that the notice, when removed from the Court’s notice board after the 20 -
day period has elapsed, be put in the court file and included amongst the necessary
documents which go before a judge.
[20] In casu in both matters, all that forms part of the court record is a signed
notice by the attorney dated 17 January 2023, with no indication that it had either
been served on any of the respondents, or, more importantly, that it had been given
to the registrar and date stamped for the appropriate action at the time the
applications were issued . The consequence for non -compliance has a direct impact
on the further conduct of the matter and so too, costs, and whilst the issue of costs is
not in issue between the Respondents and SAG, the unintended consequence of the
Applicants’ non-compliance resulted in the attendant postponement of the matter. I
will address this in due course.
[21] Needless to say, it is imperative for parties raising constitutional challenges, to
comply with the requisite rules of court in such matters. As stated supra, the
Applicants’ Rule 16A notice seems o nly to have been placed on the C ourt’s notice
board on 18 August 2023. SAG, in reply argued that the time periods for amici curiae
applications can only start running once a valid notice in terms of Rule 16A has in
fact been placed on the court’s notice board. I am in agreement with this contention
since, as I ha ve stated, the intention of the rule is to alert prospective interested
parties of the proposed constitutional challenge. Of course, the situation is different if
in fact interest ed parties are aware of the impending constitutional challenge, such
as was the case in casu, and there was no indication that such notice had been filed
11
with the registrar at the time of issue and had seemingly been been filed late. I am
also in agreement with the sentiments of the authors in Erasmus14 for the approach
to be adopted were there is non -compliance with Rule 16A by a party; Thus, if the
person who raises a constitutional issue fails to give the requisite notice in terms of
Rule 16A, any other party to the proceedings may file such a notice with the registrar
and also give notice to each of the other parties , as well as to all persons who might
have a direct and substantial interest in the issue. This is to ensure that unnecessary
costs are not incurred in resultant postponements and delays of the matter for want
of compliance.
Events leading up to the September 2023 hearing
[22] As I have stated, the amicus application was filed and they sought a
postponement of the September hearings scheduled to commence on 5 September
2023. The matter was duly postponed. In the meanwhile, the Applicants in the main
application did nothing to advance the matters; they did not file any replying papers,
nor did they file any heads of argument. In fact, they were completely silent despite
various attempts by counsel for Respondents to engage with them as to the conduct
of the matter, or to illicit a response to correspondence sent.
[23] On 28 August 2023, the Respondents filed their opposing papers in the
amicus application. The Respondents argue that the Applicants, as they did at the
eleventh hour with respect to the May hearings, finally responded in a letter to the
State Attorney on the 29 August 2023 seeking to withdraw the applications as they
were allegedly rendered moot by certain occurrences, none of which were ever
14 Superior Court Practice, Second Edition, Vol. 2, D1-168
12
communicated to the Respondents. Prior to the stated intention to withdraw their
applications, Applicants failed to comply with any of the court orders obtained in
February or May 2023.
[24] On 31 August 2023, the court was informed that the Applicants in the main
application withdrew their applications and that the only issue requiring adjudication
was costs in relation to the main application and that of the amicus. On 1 September
2023, this Court was informed that the latter application was settled on the basis that
as between SAG and the Respondents, the parties agreed that each party will pay
its own costs. On the 5th of September 2023, SAG filed a notice of withdrawel in the
amicus curiae application.
The conduct of SAG
[25] From the 10 May 2023 correspondence to this Court , it is evident that SAG
was aware of the main applications prior to 10 May 2023 15. They also sought a
directive to inter alia, “exercise its rights to properly consider whether to intervene in
the main application and prepare for same ”. In that same letter, SAG confirmed that
that they were made aware of the main application through the First Respondent’s
answering affidavit filed in the Pretoria application. Thus, from the time that SAG had
access to the papers on 4 May 2023, it waited until the eve of the hearing of the
main application on 5, 6 and 7 September 2023 to file its amicus application, nearly
four months later. Such conduct is to be admonished , since the very role of an
amicus curiae , is to assist the court and not to hinder nor obstruct the litigation
process in a manner that causes unreasonable prejudice to both the Respondents
15 They requested copies of the papers on 20 April 2023; on 26 April 2023 the State Attorney,
because the emails had been down, sent photographs of both the notice of motions via Wattsapp; on
4 May 2023, they obtained access to the papers from the Applicants’ attorney.
13
and inconvenience to the Court. SAG’s conduct regrettably amounted to an absolute
disregard for the court and for the parties and is to be censured in the strongest
terms. They were aware of these applications, yet chose on the eve of the hearing to
file their application. Nor did they request the written consent of the Respondents in
the main application to participate as an amicus curiae. Their actions thus resulted in
the incurring of unnecessary costs by the Office of the State Attorney, whose funds,
it must be remembered, is ultimately borne by the tax-paying fiscus.
Submissions
[26] In argument in relation to costs, the Respondents rely on rule 41(1)(a) of the
Uniform Rules of Court, which provides that a person instituting any proceedings
may at any time before the matter has be en set down and thereafter by consent of
the parties or leave of the court withdraw such proceedings, in any of which e vents
he shall deliver a notice of withdrawel and may embody in such notice a consent to
pay costs . They argued that the Applicants from the onset appeared to have
abandoned their applications, alternatively they had no desire to pursue them to
completion. They contend that the exceptions to the Biowatch16 principles
concerning costs in constitutional litigation apply to these applications and that the
applications fall to be dismissed with costs, including the costs of the
postponements. They also sought an adverse cost order for the manner in which the
Applicants have conducted these applications.
[27] They argue that a party should not get a privileged status simply because it is
acting in the public interest or happens to be indigent. It should be held to the same
16 Biowatch Trust v Registrar Genetic Resources and Others (CCT 80/08) [2009] ZACC 14; 2009 (6)
SA 232 (CC) at paras 22 and 23
14
standards of conduct as any other party, particularly if it has had legal
representation. This means it should not be immuniz ed from appropriate sanctions if
its conduct has been vexatious, frivolous, professionally unbecoming or in any other
similar way abusive of the processes of the Court.17
[28] The Respondents referred to para 24 of Biowatch with regard to private
parties that litigate against the State, which states the following:
“At the same time, however, the general approach of this Court to costs in litigation
between private parties and the state, is not unqualified. If an application is frivolous or
vexatious, or in any other way manifestly inappropriate , the applicant should not expect
that the worthiness of its cause will immunize it against an adverse costs award .
Nevertheless, for the reasons given above, courts should not lightly turn their backs on
the general approach of not awarding costs against an unsuccessful litigant in
proceedings against the state, where matters of genuine constitutional import arise.
Similarly, particularly powerful reasons must exist for a court not to award costs against
the state in favour of a private litigant who achieves substantial success in proceedings
brought against it.” (“own emphasis”)
[29] The Applicants contend that the Biowatch principle ought to find application in
this case. Biowatch established the general proposition that in litigation between the
State and private parties seeking to assert a fundamental right, the State should
ordinarily pay the costs if it loses and if it wins, each party should bear its own costs.
They contend that the proceedings wer e neither frivolous nor vexatious when they
were instituted. They contend that they were not aware that SAG had also instituted
the very same challenge in another court. They argue that they should not b e
punished for withdrawing the applications when the matter was no longer justiciable.
Also, simply because they have withdrawn the applications, so the argument goes,
does not mean that the provisions initially challenged are not unconstitutional. They
17 Biowatch supra at para 18
15
say that a cost order against their clients who are natural persons will have a
crippling effect on them. They also say that it will also potentially have the effect of
dissuading any other natural person from pursuing constitutional litigation, as was
warned in Biowatch. They accordingly submit that it would be equitable under the
circumstances if each party were ordered to pay their own costs.
[30] Respondents on the other hand argue that all of the principles applicable to
costs orders in constitutional litigation arise from cases that were pursued to finality.
The Respondents submit that in these applications, the Applicants made no effort to
finalize their papers, failed to comply with court orders, were disrespectful to t he
Respondents and to the Court; failed to communicate with th e Respondents and the
Court and caused the Respondents to incur unnecessary costs. In the
circumstances, the ordinary principles relating to costs in these circumstances
should apply.
Evaluation
[31] It is trite that the award of costs is a matter which is within the discretion of the
Court considering the issue of costs. In Affordable Medicines Trust v Minister of
Health18 the court re-emphasized the following:
“[138] The award of costs is a matter which is within the discretion of the court considering the
issue of costs. It is a discretion that must be exercised judicially having regard to all the
relevant considerations. One such consideration is the general rule in constitutional litigation
that an unsuccessful litigant ought not to be ordered to pay costs. The rationale for this rule is
that an award of costs might have a chilling effect on the litigants who might wish to vindicate
their constitutional rights. But this is not an inflexible rule. There may be circumstances that
justify departure from this rule such as where the litigation is frivolous or vexatious. There
may be conduct on the part of the litigant that deserves censure by the court which may
influence the court to order an unsuccessful litigant to pay costs . The ultimate goal is to do
18 2006 (3) SA 247 (CC) at 297B-C
16
that which is just having regard to the facts and circumstances of the case. ” (“Own
emphasis”)
[32] Referring to Motsepe v Commissioner for Inland Revenue 19, this Court
articulated the rule as follows:
“[O]ne should be cautious in awarding costs against litigants who seek to enforce
their constitutional right against the State, particularly where the constitutionality of
the statutory provision is attacked, lest such orders have an unduly inhibiting or
‘chilling’ effect on other potential litigants in this category. This cautious approach
cannot, however, be allowed to develop into an inflexible rule so that litigants are
induced into believing that they are free to challenge the constitutionality of statutory
provisions in this Court , no matter how spurious the grounds for doing so may be or
how remote the possibility that this Court will grant them access. This can neither be
in the interests of the administration of justice nor fair to those who are forced to
oppose such attacks.20
[33] It seems to me as if the import of the words ‘frivolous and vexatious’, refers to
not only the nature of the application itself, but also to conduct of the parties which
would amount to being ‘frivolous or vexatious’. With regard to the nature of the
application, in Affordable Medicines21 Ngobo J held that the fact that a litigant has
pursued litigation with vigour was not a material consideration , and found that that
litigation could not be described as vexatious or frivolous. This was confirmed in
Biowatch where the court stated that the general approach of that court to costs in
litigation between private parties and the State, is not unqualified. If an application is
frivolous or vexatious, or in other way manifestly inappropriate, the applicant should
not expect that the worthiness of its cause will immunize it against an adverse cost
order.22
19 1997 (2) SA 898 (CC) (1997 (6) BCLR 692)
20 Ibid at para 30
21 at 297G-H
22 para 24 at 247 A-B; See also reference to the F n 28 in Biowatch referring to Wildlife and
Environmental Society of South Africa v MEC for Economic Aff airs, Environment and Tourism,
Eastern Cape, and Others 2005 (6) SA 123 (E) at 144B -C, where Pickering J held that he was
regrettably obliged to order an environmental NGO to pay costs in relation to an application that was
17
[34] However, in Biowatch supra, the court held that a party should not get a
privileged status simply because it is acting in the public interest or happens to be
indigent. It should be held to the same standards of conduct as any other party,
particularly if it has had legal representation. This means it should not be immunised
from appropriate sanctions if its conduct has been vexatious, frivolous, professionally
unbecoming or in any other similar way abusive of the process of court.23
[35] In my view, the conduct of the Applicants in this matter may be construed as
vexatious as a result of their unprofessional and unbecoming conduct, which conduct
was not only an abuse of the court process, but an absolute and total disregard for
court time and resources. Firstly, I am in agreement with the Respondents’
contention that it is undesirable for constitutional challenges to be brought on an
urgent basis.
[36] Secondly, throughout this litigation, the Applicants disregarded court orders
from this Court and was obstructive in their silence towards the Respondents. It
hardly needs restating that wilful non -compliance of court orders is analogous to
disobedience of the court and a disregard for the rule of law. It is unfortunate that the
Applicants will be saddled with these costs as a result of the conduct of their legal
representatives and most certainly this would be one of those instances in which
costs de bonis propriis would have been justified . However, no relief in this regard
was sought and accordingly, I am of the view that costs on an attorney and client
scale is warranted under the given circumstances.
unnecessary and unreasonable because its very real concerns had already been met, and the
application was doomed to failure from its inception.
23 Biowatch supra at para 18G-H
18
[37] Even if I am wrong in my assessment, there are other reasons which weigh
heavily in favour of sanctioning the Applicants. Rule 41(1) of the Uniform Rules
requires a party intending to withdraw its litigation, to deliver a notice of withdrawal
wherein it may tender costs. 24 Where a litigant withdraws proceedings, “ very sound
reasons” must exist why a Respondent should not be entitled to his costs. It is only in
exceptional cases that a party that has been put to the expense of opposing
withdrawn proceedings will not be entitled to all the costs caused thereby. 25
Applicants have not filed notices of withdrawal, opposing affidavits, or tendered
costs.
The party withdrawing litigation is considered to be the unsuccessful litigant.
A party opposing the application for an order of costs should place the grounds of his
opposition before the court on affidavit. 26 The latter is especially relevant if the facts
relied upon in opposing the application do not appear from the pleadings filed in the
main proceedings and an affid avit is the only way whereby the basis of the
opposition to an application for costs can be made.
[38] In an affidavit deposed to on 4 Septemb er 2023 by the Applicants’ legal
representative, Mr. Martin, in support of the consent that they sought from the
Respondents to withdraw the applications, the following reasons were advanced
inter alia:
24 Wildlife and Environmental Society of South Africa v MEC for Economic Affairs, Environment and
Tourism, Eastern Cape 2005 (6) SA 123 (ECD) at 129E-130B and 131
25 Wildlife supra at 129G-I
26 Nel v OVS Staatkonstruksie en Algemene Swelswerke 1997 (3) SA 993 (O) at 997C
19
38.1 In the case of AS, that the medical screening of the surrogate mother had
occurred on 25 April 2023; although declared medically suitable, she
required a 3 -month waiting period to clear up an infection prior to re -
testing; psychological screening was completed on 16 August 2023; re -
testing was completed on 24 August 2023 and as a consequence, bar
some documentation from the applicant that remained the only aspect
outstanding to place the applicant in a position to complete and institute
her surrogacy application in terms of Chapter 19 of the Children’s Act . He
concluded that given the advancements made in regard to the surrogacy
application, the applicant sought the consent from the Respondents to
withdraw her application, which consent was granted on 29 August 2023.
38.2 In the BMM matter, he confirmed that the medical screening of the
surrogate mother occurred on 28 November 2022; the surrogate mother
was declared medically fit on 11 May 2023; the fertility clinic required
updated blood tests which was processed on 6 July 2023; he stated that
given the advancements made in regard to the surrogacy application, the
applicant sought the consent of the Respondents which consent was
granted on 29 August 2023.
[39] In argument, the Respondents aver that none of what is contained in these
affidavits were ever communicated to them. In fact, as far as they were concerned,
the legal representatives were preparing for the hearing in September 2023. With
regard to the AS matter, Respondents argued that by 25 April 2023 and in the BMM
matter, by 11 May 2023, both applications had become moot, because both
20
Applicants decided to follow the procedure and requirements as set out in the
respective legislation.
[40] Notably, in SAG’s founding affidavit, they aver that after studying the papers
in the main proceedings, it was clear to them that the main proceedings were moot
and therefore not justiciable. In essence, it was contended that the expert evidence
relied upon in the main proceedings, were , bar some amendments, virtually identical
to the opinions relied upon by SAG in, inter alia, the Pretoria challenge in that there
the expert evidence contemplated a situation where the intended commissioning
parents have a choice between two fertility treatment paths prior to them securing a
surrogate mother. The main proceedings there were diametrically different as the
facts and circumstances of the particular applicants in the AS and BMM matters and
were distinguishable27 from the expert evidence relied upon.
[41] It was also noted in the founding affidavit, that in the case of B MM, they had
already elected their choice , i.e. to subsequently have eggs retrieved from their egg
donor and frozen. And, in the absence of expert opinion supporting their argument,
they would not benefit from access to IVF prior to confirmation of their surrogacy
agreement. In other words, the applicants in the BMM matter have, through their own
actions after launching their application, rendered their own case moot and hence,
not justiciable. With regard to the AS matter, SAG contended that the surrogacy
application would most probably have been finalised prior to the hearing of the main
application, which would have rendered the application moot. In any event, no
27 AS had already cryopreserved eggs from the outset of her case and BMM initially did not have
cryopreserved eggs, but subsequently proceeded with egg donation and freezing the donated eggs.
21
supplementary affidavits during the course of the postponements 28, were filed by the
Applicants to update the court and the Respondents of their progress.
[42] Five days after SAG launched their application to intervene, the Applicants
sought consent of the First and Second Respondents to withdraw their applications,
which consent was granted on the same day.
[43] In the main application, the Respondents, a s already stated, opposed the
applications, for amongst other reasons, the lack of urgency and the
inappropriateness of the constitutional challenge raised in both matters.
[44] The Respondents contended that the Applicants challenged pieces of
legislation that are inextricably linked to a comprehensive surrogacy scheme and
artificial fertilisation scheme. A constitutional challenge of section 303(1) and
regulation 10(2)(a) without a concomitant challenge to sections 296(1), 296(2), the
definitions of artificial fertilisation in the Regulations and the Children’s Act,
regulation 18 (2) and regulation 10(2)(c) would serve no purpose . The purpose of
regulation 10(2) is to restrict the artificial production of embryos outside the body and
to ensure that those formed, are for an identified recipient. In this respect, the
specific recipient equates to the requirement of a surrogate mother as an essential
party to the surrogate motherhood agreement. The object of regulation 10(2)(a) is,
as the heading to regulation 10 stipulates, to control artificial fertilization and embryo
transfer. Regulation 10 (2)(a) is part of a comprehensive scheme to control artificial
28 The attorney of record for the Applicants only filed supplementary affidavits on 4 September 2023
after the withdrawal of the applications on 29 August 2023 and the withdrawal of SAG’s application on
1 September 2023.
22
fertilization and ensure that it is used for the purposes defined in the Act and the
Regulations.
[45] The Respondents contend that as with the surrogacy scheme contained in
Chapter 19 of the Children’s Act, a challenge to Regulation 10(2)(a) without a
concomitant challenge of Regulation 18(2) would serve no purpose. In the context of
conception by surrogacy, any isolated challenge to regulation 10(2)(a) would serve
no purpose as other provisions of Chapter 19 of the Children’s Act, including section
296(1), will militate against the commencement of artificial fertilisation as defined in
the Act , from commen cing without the confirmation of a surrogate motherhood
agreement.
[46] In the BMM application, the application sought to challenge the
constitutionality of legislation on an urgent basis. As I have already stated elsewhere,
constitutional challenges brought on an urgent basis have been frowned upon by the
Supreme Court of Appeal.
[47] At the outset, Respondents contended that the challenge was ineffective. By
way of example, in the AS application, the Respondents submitted that the Applicant
had recourse to the provision in section 68(3) of the National Health Act without the
need for a raising a constitutional challenge as she had done. In the BMM matter,
permission was granted to proceed with a single extraction of eggs from their donor .
This was not relief sought b y the Applicants in that matter. Section 303 of the
Children’s Act and section 68(3) of the National Health Act permitted that Applicants
23
in both matters to seek the necessary relief without the need for raising a
constitutional issue.
[48] It is evident that this is the path that the Applicants ultimately chose to follow
and in doing so, knowingly or unwittingly, abandoned their applications. Did the
Applicants choose to run a parallel application , in other words, following the laws
pertaining to surrogacy, whilst still keeping the applications ‘alive’? Perhaps. But, it is
not for this Court to speculate. What however is patently clear is that whilst the
Applicants were silently following the legislative framework, counsel for
Respondents, none the wiser, were preparing for a very complex constitutional legal
challenge.
[49] In para 5 of the Order29 granted on 17 May 2023, the Respondents put the
Applicants on notice regarding costs. In adjudicating the question of costs, a Court is
vested with a discretion to permit or disallow costs. In Wildlife supra30, the court held
that in exercising its discretion, the court should have due regard to the question
whether, objectively viewed, the applicant acted reasonably in launching the main
proceedings but was subsequently driven to withdraw it in order to save costs
because of facts emerging for the first time from, for instance, the Respondent’s
answering affidavit in the main proceedings or because the relief was no longer
necessary or obtainable because of developments taking place after the launching of
the main proceedings.
29 see fn6 supra
30 at paras 132J-133h-144C
24
[50] In Silvermine Valley Coalition v Sybrand van der Spuy Boerderye and
Others31, Davis J, after stating that NGOs should not have unnecessary obstacles
placed in their way when they act in a manner designed to hold the state, and,
indeed, the private community, accountable to the constitutional commitments of our
new society, including the protection of the environment, refused to make an order of
costs against the unsuccessful environmental applicant, but nevertheless ordered
the applicant to pay the wasted costs occasioned by the matter having been brought
without justification on an urgent basis.
[51] As I have already stated, the supplementary affidavits of the Applicants
attorney of record indicated the advancement of the surrogacy process that both
Applicants had undertaken. These affidavits were filed prior to the hearing on costs,
and, as dealt with elsewhere, ostensibly was deposed to to support the application of
the Applicants’ withdrawal. Rule 41(1)(c) provides that if no consent to pay costs is
embodied in a notice of withdrawal, the other party, in casu, the Respondents, may
apply to court on notice for an order for costs. The opposing party is entitled to
oppose the application for costs and to place the grounds of their opposition before
the court on affidavit, especially if the facts relied upon by them in opposing the
application do not appear from the pleadings filed in the main proceedings.
[52] In casu, the Respondents argue that the supplementary affidavit filed, did not
amount to ‘ very sound reasons’ which must exist as to why a defendant or
respondent should not be entitled to his costs. 32 In Reuben Rosenblum Family
Investments (Pty) Ltd and Another v Marsubar (Pty) Ltd (Forward Enterprises (Pty)
31 2002 (1) SA 478 (C) at 493C-E
32 Wildlife ibid at 129G
25
Ltd and Others Intervening) 2003 (3) SA 547 (C) at 550C -D, Van Reenen J stated
that it is only in exceptional circumstances that a party that has been put to the
expense of opposing withdrawn proceedings will not be entitled to all the costs
caused thereby.33 Having regard to the content of the supplementary affidavits, I am
of the view that, whilst the explanation given might be sufficient cause to withdraw an
application, the supplementary affidavits fall short of providing cogent reasons, or
very sound reasons, for challenging a cost order as contemplated in Rule 41(1)(c).
[53] In Wildlife34, the court further held that a court is entitled to have regard to the
affidavits in the main application in order to determine the issue of costs in terms of
Rule 41(1)(c). I cannot see why this approach cannot be extended to affidavits by
prospective amici even in instances where they are ultimately not so admitted, or
where they themselves have withdrawn from the main proceedings. In casu, SAG
supported the Respondents contention that both applications in the main were moot,
and that it is evident that the Applicants had seemingly abandoned their applications.
[54] In any event, what is clear from the content of the supplementary affidavits is
that, it is evident that the Applicants had abandoned their applications and instead
chose to follow the relevant legislative requirements to Surrogacy. This was done
without keeping the Court and the Respondents informed of these subsequent
developments. This conduct makes a mockery of, and shows absolute disdain for
the Court, its time and resources. Their conduct also, as I have found earlier, had the
the attendant consequences of unnecessary costs being incurred by the
Respondents, who had belaboured under the impression (due to the lack of
33 See also Wildlife at 129H-I
34 at129D-E
26
communication by the Applicants), that the matter was for all intent and purposes
proceeding and had, if the record in both matters is anything to go by, prepared for
the hearings of the matters on that basis. This egregious conduct, again, showed an
absolute disregard to both counsel employed to argue the matter.
[55] For all of the reasons advanced, I can find no justifiable reason why the
Respondents should not be entitled to their costs. I am also persuaded that costs on
an attorney -client scale is appropriate in the circumstances of both matters. The
egregious conduct by the Applicants legal representatives as enunciated above ,
warrants such Court censure.
[56] In the circumstances the following order is made:
ORDER
1. The Applicants in both matters are to pay the Respondents their respective
costs on an attorney -client scale, which includes the Respondents costs
occasioned by the withdrawa l of the applications, the costs of the Rule
41(1)(c) proceedings and all postponements.
2. Such costs are to include the cost of two counsel where so employed.
D.S KUSEVITSKY
JUDGE OF THE HIGH COURT