IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION: PRETORIA)
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
19 March 2026
DATE
In the matter between:
NELISIWE MHLONGO
and
BHEKIZENZO INNOCENT SIMELANE
THE MASTER OF THE HIGH COURT
JUDGMENT
MINNAARAJ,
Case number: 2024-127274
Applicant
First Respondent
Second Respondent
(1] This application came before me in the opposed motion court and was
heard virtually on 4 March 2026. The issues revolved around the first
respondent 's entit lement to inher it from the deceased child's intestate
2
estate. The applicant brought the application as the duly appointed
executrix in the estate of the deceased child . The applicant, in her
personal capacity, is the biological mother of the deceased child. The first
respondent is the biological father of the deceased child.
[2] The first respondent raised a point in limine challenging the applicant's
locus standi. Having heard both counsel on this point, judgment was
reserved.
[3] On 9 March 2026, the applicant delivered a notice of withdrawal of the
application and tendered the first respondent's wasted costs occasioned
by the application, up to and including 4 March 2026.
[4] It is trite that once a case has been placed before a court for adjudication,
the court is obliged to adjudicate upon the issues by rendering a
judgment , unless the parties specifically withdraw all or some of the
issues from judicial consideration (by, for example, abandoning a claim
or defence, or by withdrawing the action or application in its entirety).1
[5] In terms of the provisions of Rule 41 (1 ), once a matter has been set down
for hearing, it is not competent for the party who instituted such
proceedings to withdraw them without either the consent of all parties or
the leave of the court.2
1 Maswanganyi v Road Accident Fund2019 (5) SA 407 (SCA) at 41 IH-412A .
2 See also Bondev Midrandv Madzhie 2017 (4) SA 166 (GP) at 170E
3
[6] The applicant failed to seek the consent of all parties or the leave of the
court to withdraw her application. The applicant merely delivered a notice
by email to the first respondent and my chambers, and uploaded a copy
of this email and the notice of withdrawal to Caselines.
[7] I requested my registrar to reach out to the first respondent's attorney to
enquire whether the first respondent consents to the contents of the
notice of withdrawal. The first respondent's attorney responded on 12
March 2026. Unfortunately, this correspondence was only brought to my
attention on 19 March 2026. In terms of the correspondence received
from the first respondent's attorney, the first respondent noted, without
any objections, the contents of the notice of withdrawal. In this
correspondence, reference was made to email correspondence between
the respective attorneys, dated 10 and 11 March 2026, in terms of which
it was agreed that the tendered costs are costs on the party and party
scale, including the costs of counsel on Scale B.
[8] The court has discretion to grant leave to withdraw an application, and
the question of injustice to the parties is germane to the exercise of that
discretion.3
[9] I pause to mention that, during the argument, the matter stood down for
the applicant's counsel to take an instruction. The applicant then
requested a postponement of the application to sort out her papers and
3 Pearson and Hutton NNO v Hitzeroth 1967 (3) SA 591 (E) at 593D, 594H. Karroo Meat Exchange
Ltd v Mtwaz i 1967 (3) SA 356 (E) at 359B-G; Huggings v Ryan NO 1978 (1) SA 2 I 6 (R) at 2 I 8D.
4
requested that costs be reserved. The first respondent was not amenable
to the proposal for a postponement to fix the applicant's papers with costs
to be reserved, and insisted that either the applicant withdraw the
application with a tender for costs or, in the absence of such an offer, that
the application proceed. The request for a postponement was denied,
and I reserved judgment.
(10] It was my prima facie view during the hearing, and it remains my
view, that the applicant lacked the required locus standi to pursue the
application in her personal capacity rather than in her capacity as the
executrix in the estate of her deceased child. At the very least, the estate
of the deceased child should have been joined to these proceedings. The
ideal position would be for the applicant to step away from her
appointment as executrix and for the second respondent to be
approached to appoint an independent executor to wind up the deceased
estate. In light of the withdrawal of the application, I do not see any need
for this court to expand on the merits of the application. Judicial
resources and time are precious and should be utilised accordingly.
[11] The applicant's motivation for withdrawing the application is not
something this court needs to investigate. The applicant cannot be forced
to proceed with the application.4
4 Levy v Levy 1991 (3) SA 614 (A) at 620B
5
[12] With the tender for costs, I cannot see any prejudice that the first
respondent would suffer should leave to withdraw the application be
granted. In the premises, leave is granted to the applicant to withdraw
the application.
[13] Consequently, I make the following order:
1. The applicant is granted leave to withdraw the application.
2. The contents of the notice of withdrawal, dated 9 March
2026, are noted. The scale of costs is on the party and
party scale, including counsel's fees on Scale B.
Heard on
For the applicant
Instructed by
For the first respondent
Instructed by
Date of Judgment
Minnaar AJ
Acting Judge of the High Court
Gauteng Division, Pretoria
: 4 March 2026
: Adv P Shandu
: Barkers
: Adv. WE Zulu
: Tivani Attorneys Inc
: 19 March 2026