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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NUMBER: 2022 /32681
1.REPORTABLE: NO
2.OF INTEREST TO OTHER JUDGES: NO
3.REVISED: NO
6 January 2025
Judge Dippenaar
In the matter between:
S[...] A[...] S[...] APPLICANT
And
J[...] M[...] S[...] RESPONDENT
JUDG MENT
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by e -mail and uploading it onto the electronic
platform . The date and time for hand -down is deemed to be 1 4h00 on the
06th of JANUARY 2025.
DIPPENAAR J:
[1] This is an application for costs under r 41(1)(a) and 41(1)(c) , pertaining to an
appeal which was withdrawn by the respondent . The applicant s ought a judgment in
terms of costs.
[2] The genesis of the present dispute was an opposed urgent application in terms
of which the applicant sought to appoint Adv M Snyman SC as curator to the parties’
two minor children (the main application) . That application culminated in a judgment and
order granted by Naythi J on 20 September 2022. Adv Snyman SC was appointed as
curator ad litem and was afforded certain powers. No order of costs was made.
[3] Dissatisfied with the result, the respondent sought leave to appeal. The applicant
opposed the application. Leave to appeal was granted. Costs were to be costs in the
appeal. Th e respondent delivered a notice of appeal . Both parties delivered practice
notes and heads of argument. The appeal was set down for hearing on 21 August 202 4.
[4] The respondent removed the appeal from the roll on 18 March 2024. On the
same date, he withdrew his appeal. The notice of withdrawal, in relevant part, stated:
‘…and the costs to be reserved for argument in the main a pplica tion by agreement
between the parties ’.
[5] The applicant enrolled the main application for the determination of costs.
[6] On 0 1 Octo ber 2024, the respondent delivered an affidavit on the costs of the
appeal, deposed to by his attorney of record, Ms Muller. In sum, her version w as that
she had a conversation with the applicant’s attorney, Ms Schoeman on 19 February
2024 , during which the applicant requested the appeal to be withdrawn and Adv
Snyman to be appointed to save costs. She told Ms Sch oeman that she would take an
instruction but, if the respondent agreed thereto, the respondent would only withdraw
the appeal if e ach pa rty paid their own costs. On 20 February, a letter was addressed to
Ms Schoeman. I n it, Ms Muller confirmed that the respondent was willing to agree to the
appointment of Adv Snyman SC if he would be willing to act pro bono . She stated: “I
regrettably omitted to mention in this letter that each party shall pay their own costs” .
Pursuant to Adv Snyman SC agreeing to act pro bono , Ms Muller wrote a further letter
on 8 March 2024. Therein, it was recorded that the appeal would be withdrawn on
condition that the costs be reserved for argument in the main application. On 15 March
2024, Ms Schoeman in writing confirmed the applicant’s consent to the proposal that
costs be argued in the main application at a later stage.
[7] In her affidavit, Ms Muller further contended that the recordal of the cost issue
was wrong and a bona fide error which was carried through in further correspondence
as the parties agreed that each would pay his and her own costs. She further contended
that as the main application had been finalised and the court did not grant a costs order ,
the cost issue was res judicata as costs could not be argued in the main application. It
was contended that what the respondent intended was to bring the appeal to an end to
save costs of both parties, “although the notices and correspondence did not eloquently
set this out ”. If the costs issue had not been res olved, the appeal would not have been
withdrawn. It was proposed that each party pay their own costs of the appeal.
[8] I argument, the respondent’s counsel repeated those contentions and further
submitted that a compromise had been reached that the appeal be withdrawn on
condition that each party pay their own costs. The applicant on the other hand,
submitted that she was entitled to costs as the respondent was in the position of an
unsuccessful litigant. It was submitted that the correspondence did not evidence any
compromise on the costs. She did not file any affidavit responding to Ms Muller’s
affidavit.
[9] I have various difficulties with t he submissions proffered by the respondent .
Whatever the respondent and his attorney may subjectively have intended, that was not
what was ultimately conveyed to the applicant. In the notice of withdrawal and all the
correspondence emanating from the respondent, it was unequivocally conveyed that
costs were to be reserved , to be argued as part of the main application . From the
correspondence and the version set out in the affidavit, there is no cogent evidence to
suggest that the re was a meeting of the minds between the parties to compromise the
issue of costs or that they had agreed to each pay their own costs. The parties both
considered the main application as the appropriate place to have the costs determined
at a later stage. It was common cause that there was no other “main application”
pending between the parties.
[10] It does not avail the respondent that in the in itial discussion between the
attorneys on 19 February 2024 it was stated that the respondent would only withdraw
the appeal if each party paid their own costs. That discussion occurred prior to Ms
Muller taking instructions from the respondent. The subsequent discussions overtook
that conversation after Ms Muller had taken instructions from the respondent. The
documentary evidence reflects the discussions between the parties. Ultimately, on the
respondent’s own version, costs were to be reserved to be determined in the main
application. Both parties were aware of the contents of the judg ment of Nyathi J and
that the costs of the main application had been determined therein .
[11] The argument that the costs issue was res judicata as it was determined in the
main application, lacks merit. It conflates the main application itself, with the appeal
process which followed. The parties were fully aware that what remained in dispute
was the costs of that appeal process, not the costs of the main application. They agreed
to determine that issue in the main application. That makes sense, as it obviated the
need to have three judges being burdened to hear the parties’ arguments.
[12] The respondent further submitted that r 41 does not provide for a reservation of
costs and that the applicant should have applied for costs in an application in terms of r
41(1)(c) .
[13] Rule 41(1) in relevant part provides: ’
’(a) A person instituting any proceedings may at any time before the matter has been
set down and thereafter by consent of the parties or leave of the court withdraw such
proceedings, in any of which events he shall deliver a notice of withdrawal and may
embody in such notice a consent to pay costs; and the taxing master shall tax such
costs on the request of the other party .
(c) If no such consent to pay costs is embodied in the notice of withdrawal, the other
party may apply to court on notice for an order for costs’’.
[14] Read in context, r 41(1)(c) does not by necessity envisage the launching of a
substantive application. Our courts have held that an applicant for an order for costs
need only deliver a notice of his intention to do so. No affidavit is required since the
relevant material is already before the court.1 The relevant material was placed before
the court and the respondent availed himself of the opportu nity to place an affidavit
before court dealing with his grounds of opposition.2
[15] By agreeing to reserve the costs of the appeal to be determined in the main
application, the respondent effectively introduced that as an issue in the main
application, which had not yet been determined. In setting the main application down for
hearing, the applicant complied that that arrangement.
[16] A party which withdraws its case is as a general principle liable for costs as it is
in the same position as an unsuccessful litigant and the opposing party is entitled to its
costs .3 Where a party withdraws a claim the oth er is entitled to cost unless there are
good grounds4 or excep tional circumstances5 for depriving him . A court retains a
discretion to do so in appropriate circumstances.
1 Nel v OVS Staalkonstruksie en Algemene Sweiswerke 1977 (3) SA 993 (O) at 996H; Wildlife and
Environmental Society of South Africa v MEC for Economic Affairs, Environment and Tourism, Eastern
Cape 2005 (6) SA 123 (EDC).
2 Nel supra, at 997C; Wildlife and Environmental Society supra at 129A.
3 Germishuys v Douglas Besproeiingsraad 1973 (3) SA 299 (NC).
4 Waste Products Utilisation (Pty) Ltd v Wilkes and another (Biccari as interested party) 2003 (2) SA 590
(W).
5 Absa Bank Ltd and others v Robb [2014] 3 All SA 322 (GSJ); Reuben Rosenblum Family Investments
(Pty) Ltd and Another v Marsubar (Pty) Ltd (Forward Enterprises (Pty) Ltd intervening 2003 (3) SA 547
(C).
[17] On a conspectus of all the facts, the respondent elected not to pursue the appeal
and must be treated as an unsuccessful litigant . I am not persuaded that there are any
exceptional circumstances present justifying the applicant to be deprived of her costs.
There are also no good grounds to do so. It follows that the application succeeds and
the applicant is entitled to judgment in her favour for the costs relating to the appeal and
the application for leave to appeal. The costs of this application must follow the result.
[18] In the proposed draft order provided by the applicant , the costs of the application
were sought on an attorney and client scale. That was however not sought in the
application , nor in the heads of argument. I am further not persuaded that such an order
is warranted . The granting of costs Scale C is justified given the complexit ies involved .
[19] In the result, the following order is granted:
[1] The respondent is directed to pay the costs of the appeal, including the
application for leave to appeal , such costs to be on Scale C ;
[2] The respondent is directed to pay the costs of this application on Scale C .
EF DIPPENAAR
JUDGE OF THE HIGH COURT
JOHANNESBURG
APPEARANCES
DATE OF HEARING : 14 NOVEMBER 2024
DATE OF JUDGMENT : 06 JANUARY 2025
APPLICANT’S COUNSEL : Adv. X Van NIekerk
APPLICAN T’S ATTORNEYS : ML Schoeman Attorneys
RESPONDENT’S COUNSEL : Adv. W.N. Wannenburg
RESPONDENT’S ATTORNEYS : Esthe Muller Inc.