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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2025-120837
DATE: 2 April 2026
In the application between:
S[… ] V[… ] D[… ] S[… ]
[Identity No. 8[…] ]
Applicant
and
M[… ] L[… ]
[Identity No. 8[…] ]
Respondent
Delivered: This judgment was prepared and authored by the Judge whose
name is reflected and is handed down electronically by circulation
to the Parties/their legal representatives by email and by uploading
it to the electronic file of this matter on CaseLines. The date for
hand-down is deemed to be on 1 April 2026.
WRITTEN REASONS FOR JUDGMENT REGARDING COST ORDER
M VAN NIEUWENHUIZEN, AJ:
1. This application came before me as one or urgency on 2 December
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: ___
Date: 2 April 2026
Signature: ____________
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2025.
2. The respondent did not file an answering affidavit. The respondent was
however represented by counsel at the hearing.
3. On the 1st of December 2025, a day before the hearing, the respondent
served on the applicant and uploaded to CaseLines a written notice to
abide. The notice to abide reads as follows: “The respondent does not
intend to oppose the above application and will abide by the decision of the
above Honourable Court”. In court counsel for the respondent informed me
that only the issue of costs would be argued. After having heard
argument from both counsel, I granted an order in favour of the applicant
in terms a draft Court Order prepared by the applicant, which includes
an order for costs on an attorney client scale in favour of the applicant.
4. On the 5th of February 2026 the respondent uploaded a notice of
application for leave to appeal the costs order onto CaseLines and on
the 8th of February 2026 the respondent requested reasons for granting
the judgment and order in email correspondence. No formal request for
reasons was made.
5. The notice of application for leave to appeal against costs was served
out of time and it was not filed with the Registrar. I received the
transcript of the hearing on the 17th of March 2026. I accordingly limit
this Judgement to the reasons for granting costs on an attorney and
client scale.
6. Prior to the aforementioned hearing on the 29th of October 2025 Adams
J made an order restoring contact between the applicant and the minor
children. The Family Advocate was directed to conduct an investigation
into the best interests of the minor children regarding primary residence,
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care and contact,1 and both parties were ordered to “… co-operate fully
with the Office of the Family Advocate, who will be instructed to forthwith
commence the investigations. In the event of either party failing to co-operate
with the Family Advocate, the non-defaulting party shall be entitled to approach
this Court for appropriate relief by way of motion proceedings, for an order
compelling compliance with the Family Advocate's requests.”2
7. The facts demonstrate that the aforementioned order was granted
consequent upon the respondent’s refusal to co-operate and partake in
an investigation ordered by the Children’s Court.
8. On the 17th of November 2025, as part of their investigation, the Office of
the Family Advocate scheduled an interview with the parties for 9
December 2025 at 13h00.
9. On the 18th of November 2025 the applicant’s attorney sought
confirmation from the respondent’s attorney that the respondent and the
minor daughter, M[...], eight years of age, would attend the appointment.
The respondent’s attorney replied that his offices would obtain
instructions and revert.
10. On the 18th of November 2025, the respondent's attorney addressed
email correspondence to the Family Advocate, without notice to the
applicant's attorney, informing their office that the respondent would not
be attending the interview as the respondent was “booked off” due to
medical reasons and the M[...] would be attending school. The
respondent requested that the interview be postponed for the following
reasons:
1 FA, Annexure “SV1”, CaseLines, 021-19
2 FA, Annexure, “SV1”, para 4, CaseLines, 020-20
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“1. Our client was unfortunately involved in an accident and is currently
booked off due to medical conditions and is again consulting with his
medical practitioner this Friday and will gladly provide you with a dated
medical certificate.
2. We also noted that you request the minor child to be present. It is also
common cause that the minor child is still attending school at this stage,
and we do not want to take her out of school unnecessary for the day as
there is still some activities that needs to be concluded.
3. Under those circumstances we kindly request that you provide us with a
new date and confirmation of the postponement.”
11. On the 18th of November 2025 the applicant's attorney requested a
medical report and treatment plan relating to the respondent's alleged
injuries from the respondent’s attorney. The papers reflect that the
accident occurred on the 2nd of November 2025 and the respondent was
discharged from hospital on 7 November 2025. No medical certificate
accompanied the email “requesting a postponement” of the interview.
The applicant offered to take M[...] to the interview considering that the
academic school year had come to an end. The applicant also
threatened to launch an urgent application if the respondent persisted
with his refusal to attend the scheduled interview.
12. On the 21st of November 2025 the respondent’s attorney advised that
the respondent refused to:
1. Provide a medical report.
2. Agree that the applicant takes M[...] to the interview.
3. Attend the scheduled interview on 9 December 2025 with M[...].
12. The respondent also addressed a WhatsApp message to the respondent
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in which he affirmed his refusal that the applicant takes the minor child
to the scheduled interview.
13. On the 24th of November 2025 the respondent’s attorney re-affirmed to
the Family Advocate that his “… instructions remain unchanged and do await
confirmation that the appointment will be postponed for both parties. …”
14. The respondent claimed that he was unable to attend the scheduled
interview consequent upon the injuries sustained by him. The
aforementioned averment is belied by his attendance of a 40th birthday
party at a game farm over the weekend of 14 November 2025. Social
media posts on Facebook depicts the respondent drinking and riding on
a game vehicle. No visible injuries can be gleaned from the photographs
and the respondent showed no discomfort that could have precluded
him from attending the scheduled interview.3
15. The history of the matter shows that the respondent formed a habit of
causing delays to the investigation processes. The applicant lodged a
Children’s Court application on 12 November 2024 - a month after the
parenting plan was made an order of Court. The respondent and his
attorney often failed to attend Court resulting in postponements to
procure their attendance. The respondent also refused to co-operate
with the social worker appointed by the Children’s Court to perform an
investigation. The respondent caused undue delays to the investigation
by deliberately manipulating the Children’s Court process and system as
a result of which the proceedings had to be postponed on numerous
occasions.
16. The respondent failed to “co-operate fully with the Office of the Family
Advocate” by refusing to attend the scheduled meeting for no good
3 FA, Annexure “SV10”, CaseLines 020-33
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reason. The Court’s intervention was necessary to prevent further
delays in the investigation caused by the respondent’s obstructive
stratagem. The respondent’s delaying strategy was evidently aimed at
perpetuating the status qua for as long as possible. In order to achieve
this, he orchestrated unnecessary delays.
17. This application was served on the 25th of November 2025. The
applicant stated in an affidavit that M[...] expressed the wish to return to
the applicant's primary care - the voice of the child is contained in two
social workers' report ordered by the Children's Court. The applicant
correctly argued that the respondent’s delaying tactics is not in the
interests of the two minor children.
18. On the 27th of November 2025 the respondent’s attorney addressed a
“with prejudice” letter to the applicant’s attorney in which he stated, as
follows:
“9. Additionally, the initial request to postpone the date was necessitated by the fact
that, at the time, M[...] was still attending school and engaged in extramural
commitments. This position has since changed. On 24 November 2025, M[...]’s
school informed our client's wife, Ms C[…] L[…] , that M[...] would not be required
to attend school on 9 December 2025.
Our client has consulted with a treating specialist earlier today. The only
available consultation time was at 08h30 today, which has been secured and
was attended to by our client.
Acting strictly on medical advice, our client will postpone his scheduled surgery
to ensure the family's attendance at the Office of the Family Advocate on 9
December 2025 and a new date will be provided.”
19. The respondent’s request that the application be withdrawn at that
juncture was without merit.
20. A clear basis has been established for the lack of trust that the
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respondent would honour his belated undertaking to attend the
scheduled interview with the Office of the Family Advocate. I quote the
applicant’s attorney’s warranted response, as follows:
“5. Your client did indeed give a medical certificate that stated he was unfit
for work and will only return to work on 12 December 2025. As a result of
this he is unable to attend to the appointment of the Family Advocate.
Despite this he was capable of gallivanting with his friends on a game
farm on 14 November 2025 and was clearly able to attend a meeting with
the Family Advocate.
6. Your client's contention that our client influence M[...] does not even
justify a response. Nor the contention that she had to attend school on 9
December 2025 which was never an issue.
7. Your client's refusal to adhere to the appointment and the reasons for the
refusal is mala fide, obstructive and unreasonable. Hence the urgent
application. Your client now contends that he postponed surgery which is
a new fact. We specifically requested his treatment plan and was simply
ignored. We decline to now accept his word about surgery which was
never shared before. The latest medical certificate also does not assist
your client.
8. We agree that it is deeply regretted that our client had to bring an urgent
application where your client could simply have co-operated from the
start. It is exhausting to our client to always have to fight your client's
obstructive behaviour and mala fides.
9. Given the history of your client reneging on agreements and inter alia
suspended contact mero motu our client cannot simply accept his
compliance with the appointment.
10. As such we seek that your client agrees to a draft order in terms of the
Notice of Motion except for costs that can be argued.”
21. The respondent’s counsel argued that the applicant should pay the costs
as the respondent provided two undertakings and two medical
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certificates. The respondent’s counsel further argued that the
undertakings rendered the application moot. There is no merit in this
argument because the applicant was not obliged to accept the medical
certificates. Furthermore, the applicant was not obliged to accept the
respondent’s belated undertaking in the instant matter where the
applicant was faced with the respondent’s stratagem to delay the
investigation. The applicant had good reason not to trust that the
respondent would make good on his belated undertaking. The applicant
was, accordingly, entitled to persist that the application be heard and an
order be granted by the Court.
22. The respondent made a 180 degree turn in his letter dated 28 November
2025, contrary to his previous blunt refusal to attend the scheduled
meeting with the Office of the Family Advocate in breach of the Order
granted by Adams J. The about turn only came about when the
respondent was faced with the reality that he may not get away with his
previous stratagem. This occurred only after the applicant incurred costs
which could and should have been prevented if the respondent did not
refuse to attend the scheduled meeting with the Office of the Family
Advocate.
23. The respondent’s aforementioned undertaking is contrary to the stance
that he took on the 21st and 24th of November 2025 which prompted the
launch of the urgent application.
24. The first medical certificate was obtained after the Family Advocate’s
letter of the 17th of November 2025 and the second medical certificate
was obtained after service of the application. The two medical
certificates were not supported by an affidavit deposed to by the doctor.
The medical certificates became irrelevant from the moment that the
respondent agreed to attend the interview. There is, accordingly, no
merit in the respondent’s reliance on the medical certificates in the
context of cost. The irrelevance of the medical certificates renders it
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unnecessary to deal with further warranted critique against the pro forma
medical certificates and its confusing content.
25. Suffice to say that neither of the medical certificates state that surgery
was scheduled for the 9th of December 2025 as alleged in the
respondent’s letter dated 28 November 2025. The first medical
certificate refers to the nature of illness/operation/enquiry “post-surgery”
and the second to “follow-up procedures or surgeries to be
rescheduled”.
26. The Applicant’s counsel argued that the respondent has not filed any
papers and argued that this was because of the weekend away4 where
the respondent appears not to be as injured as he now claims to be and
there was no surgery scheduled for the date of the Family Advocate’s
Investigation. The first letter also did not mention scheduled surgery.
27. The respondent could and should have avoided the application by
agreeing to attend the scheduled interview in the first place.
28. The Notice of Motion contains a prayer for the payment of costs on
attorney and client scale.
29. I exercised my discretion to grant punitive costs on the basis that the
respondent’s conduct was mala fide. Prior to the issuing of the
application, the respondent bluntly refused to attend the scheduled
interview/meeting with the Family Advocate on mala fide grounds. The
production of medical certificates, which is contradicted by the respond’s
attendance of a 40th birthday party at a game farm over the weekend of
14 November 2025, as depicted in social media post, demonstrates the
respondent’s mala fides. A bona fide litigant would have agreed to
4 The weekend of the 14th of November 2025
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attend the scheduled meeting.5
30. The respondent should not in my view be “left out of pocket.”
31. Based on the aforementioned facts I granted the relief sought in the draft
order which accords with the relief sought in the Notice of Motion, and I
granted costs on an attorney and client scale to the applicant.
______________________________________
M VAN NIEUWENHUIZEN
Acting Judge of the High Court of South Africa
Gauteng Division, Johannesburg
HEARD ON: 2 December 2025
DATE OF JUDGMENT: 2 April 2026
FOR APPLICANT: Adv L Grobler
INSTRUCTED BY:
Alice Swanepoel Attorneys
Mrs A Swanepoel
E-mail: alice@aliceattorneys.co.za
FOR RESPONDENT: Adv Pinder
INSTRUCTED BY:
Gilpin Attorneys
Mr C Gilpin
E-mail: clifford@gilpinattorneys.co.za
5 Fripp v Gibbon and CO 1913 AD 354; Intercontinental Exports (Pty) Ltd v Fowles 1999 (2) SA
1045 (SCA) at 1055F-G.