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This Judgment was handed down electronically and by circulation to the parties’ legal
representatives by way of email and shall be uploaded on caselines/courtonline. The date
for hand down is deemed to be 18 February 2026.
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JUDGMENT
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MOGOTSI AJ
Introduction
[1] The central issue in this matter is whether the respondent is liable to pay the costs
of the urgent application it instituted and later withdrew, or whether the court should
exercise its discretion to order that each party bear its own costs.
Relevant background
[2] On 1 April 2025 , the respondent launched an urgent application against the
applicant seeking the reinstatement of Gauteng, Western Cape, Eastern Cape, Limpopo,
and KwaZulu-Natal training and assessment centres’ accreditations pending an internal
appeal or review.
[3] On 4 April 2025 , three days after the application was served, the applicant
reinstated the accreditation of the Gauteng centre; however, it made it clear that the other
four centres remained delisted because of separate compliance issues. On the same day,
the respondent’s attorneys acknowledged that the reinstatement of the Gauteng centre
rendered part of the application academic and moot. However, because the applicant
persisted in maintaining the delisting of the other four centres, the application was not
immediately withdrawn.
[4] On 1 September 2025, the respondent wrote a letter to the applicant stating that
the matter had become moot because the balance of accreditations was expected to be
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reinstated shortly. It further enquired whether the applicant would tender costs, and the
latter failed to respond. The respondent, without formally tendering the costs, withdrew
the application on 16 October 2025.
[5] This culminated in the current Rule 41(1)(c) application wherein the applicant is
seeking an order that the respondent be ordered to pay punitive costs, alternatively costs
on a party-and-party basis scale B, which the respondent is opposing. The latter did not
file a formal answering affidavit and is thus relying instead on the existing record, inclusive
of its replying affid avit and correspondence, to demonstrate the rea sonableness of its
conduct. The parties, relying on the matter of Wildlife and Environmental Society of SA v
MEC for Economic Affairs, Environment and Tourism, Eastern Cape 1, are ad idem that
this is legally permissible.
The Applicant’s submissions
[6] Firstly, the applicant’s counsel, relying on the matters of Germishuys v Douglas
Besproeingsraad2 and ABSA Bank v Robb3 submitted that a withdrawer is in the same
position as an unsuccessful litigant and must be mulcted with a cost order.
[7] Secondly, counsel submitted that the application lacked merit from the outset, and
the withdrawal was an acknowledgement of that lack of merit. The respondent delayed
the withdrawal for more than six months after the Gauteng centre reinstatement and only
withdrew after the applicant had filed heads of argument.
[8] Finally, counsel submitted that the fact that the respondent persisted with a
meritless application and withdrew it without tendering costs, justifies a punitive costs
order as a mark of the court’s disapproval.
1 2005 (6) SA 123 (E) at 129A D.
2 1973 (3) SA 299 (NC).
3 2013 (3) SA 619 (GSJ.
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Respondent’s submissions
[9] Firstly, the respondent’s counsel submitted that the respondent’s withdrawal due
to mootness should not be construed as a concession of defeat. It was premised on the
applicant’s reinstatement of the Gauteng centre on 4 April 2025, and after it became clear
that the other centres would also be reinstated. This, according to counsel , implies that
the withdrawal was not a loss because the respondent obtained the core relief it sought,
viz, Gauteng centre reinstatement through the pres sure of litigation . Therefore, the
applicant should not be rewarded with a costs order for having been compelled to do the
right thing.
[10] Secondly, the counsel relying on the matter of Conradie v Botes NO and
Others4 submitted that in exercising its discretion, the court must consider whether the
applicant acted reasonably in launching the application.
[11] Thirdly, counsel submitted that a litigant has a duty not to persist with moot
litigation, and penalising it with a costs order would discourage litigants from acting
responsibly. Counsel’s argument is based on the Constitutional Court decision of
Normandien Farms (Pty) Ltd v SA Agency for Promotion of Petroleum Exportation and
Exploitation (SOC) Ltd5, in which it held that persisting with a moot matter constitutes an
abuse of process.
[12] Finally, counsel, relying on the matter De Sousa v Technology Corporate
Management (Pty) Ltd 6 submitted that there are no exceptional circumstances
demonstrating improper or objectionable conduct to justify a punitive costs order.
Analysis
[13] The general rule is indeed that a withdrawing party must pay the costs of the
opposing party 7. This general rule is not inflexible and has exceptions. In addition to
4 2025 JDR 2049 (WCC) para 13.
5 2020 (4) SA 409 (CC).
6 2017 (5) SA 577 (GJ) at 655C-J.
7 ABSA Bank v Robb 2013 (3) SA 619 (GSJ) at para 8.
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these exceptions, the court has a wide discretion allowing it to depart therefrom where
there are sound reasons8. The onus to show that the general rule should apply rests on
the party seeking costs once the withdrawing party has raised a prima facie justification
for the departure.
[14] The conspectus of the evidence before me demonstrates that the withdrawal was
occasioned by the respondent’s reinstatement of the Gauteng centre accreditation three
days after the application was launched, coupled with the respondent’s reasonable belief
that reinstatement of all centres would follow. The reasonable belief was, in my view,
justified when one has regard to the correspondences and the fact that the original
delisting of all centres was explicitly tied to the Gauteng centre earthing issue .9 The
respondent, in my view, correctly deemed the supervening circumstances as rendering
the relief sought unnecessary.
[15] The founding affidavit set out a clear complai nt, that is, t he nationwide delisting
based on a single centre’s earthing issue, without prior notice or an opportunity to be
heard. The applicant’s act was procedurally unfair and a violation of Clause 5.4 of the
guidelines, which requires the other party to be afforded an opportunity to respond before
termination. Consequently, I am of the view that the applicant’s contention that the
application was questionable ab initio is not persuasive because it is not supported by the
record.
[16] The applicant’s act of mero mutu reinstating the Gauteng centre after the
application was launched is, in my view, a tacit acknowledgement by the applicant that
its position was not unassailable.
[17] The respondent wrote a letter dated 1 September 2025 in which they sought to
resolve the costs amicably, but the applicant ignored it. The respondent withdrew the
8 In Hammond and Hammond Transactional Law Clinic v Bitou Municipality and Others (8526/21) [2021] ZAWCHC
150 (11 August 2021) at paragraph 16:
150 (11 August 2021) at paragraph 16:
9 The applicant’s’s letter of 19 March 2025, annexure FA8).
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Appearances
For the Applicant: Adv Suhail Mohammed
suhail@counsel.co.za
Instructing Attorneys; Cliffe Dekker Hofmeyr Inc
corne.lewis@cdhlegal.com
claudia.moser@cdhlegal.com
For the Respondent: Adv J W Kloek
kloek@mweb.co.za
Instructing Attorneys: Jooste Peters Incorporated
clemens@joostelaw.co.za
Date heard: 09 February 2026
Date of Judgment: 18 February 2026