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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable
Case No.: 3358/2024
In the matter between:
D[...] R[...] Applicant
And
N[...] M[...] First Respondent
R[...] L[...] Second Respondent
Coram: Francis J
Heard: 6 May 2026
Delivered: 12 May 2026
ORDER
______________________________________________________________________
1. The applicant is granted leave to withdraw the application brought in terms of
section 18(2) read with section 18(3) of the Superior Courts Act 10 of 2013 for
the suspension of paragraph 4.1.1 of the order granted on 2 December 2025.
2. The applicant is ordered to pay the respondents’ costs of the application, such
costs to be taxed on Scale C and to include the costs of two counsel where so
employed.
JUDGMENT ON COSTS
FRANCIS, J:
Introduction
[1] This is one of three judgments on costs delivered in this matter. The other
judgments address the costs of the application and counter -application heard on
2 December 2025, and the costs of the urgent application brought by the
applicant on 10 March 2026 about the first respondent’s drug use and related
interim care and contact arrangements.
[2] On 19 January 2026 , the applicant brought an application in terms of section
18(2) read with section 18(3) of the Superior Courts Act 10 of 2013 for the
suspension, pending appeal, of paragraph 4.1.1 of the order I granted on 2
December 2025, which regulated his term -time contact with a minor, L[...]. The
respondents opposed the application and affidavits were exchanged. The matter
became entangled with a recusal application brought by the applicant in February
2026 (since determined) and with the application for leave to appeal the
December 2025 order.
[3] After leave to appeal was refused, the applicant gave notice on 5 May 2026 of
his intention to withdraw the suspension application. The notice tendered no
costs. As the matter had by then been set down for hearing on 6 May 2026,
withdrawal required either the respondents’ consent, which was refused, or the
leave of the court, which the applicant now seeks.
[4] Three issues arise: whether to grant leave to withdraw; whether costs should be
reserved to the trial court (raised for the first time from the bar); and, if not
reserved, where they should fall. The applicant’s primary submission is that each
party should bear its own costs. The respondents seek costs on a punitive scale.
Leave to withdraw the application.
[5] Rule 41(1)(a) of the Uniform Rules provides that a person who has instituted
proceedings may at any time before the matter has been set down withdraw the
proceedings by delivery of a notice of withdrawal. After set down, withdrawal
requires the consent of the parties or the leave of the court.
[6] The principles regulating the grant of leave to withdraw are settled. In Pearson &
Hutton NNO v Hitzeroth and Others 1967 (3) SA 591 (E) at 594H, leave was said
to be refused where the applicant is not wholly dominus litis or where the
respondent has by the proceedings obtained an advantage of which it would be
unjust to deprive him. Outside those situations a litigant should not ordinarily be
compelled to persist in proceedings he or she wishes to abandon, absent abuse
of process.
[7] Neither qualification applies. The applicant remains dominus litis. The
respondents have acquired no advantage by their opposition that withdrawal
would unjustly deprive them of. The withdrawal is not an abuse . It followed the
refusal of leave to appeal, which removed the foundation of the suspension
application. Leave to withdraw is granted.
[8] The contested questions concern reservation and the incidence of costs.
Whether costs should be reserved for the trial court
[9] In the alternative to a no -costs order, counsel for the applicant argued at the
hearing that the costs of the suspension application be reserved for the trial
court. He submitted that the trial court will be seized of the underlying merits and
that the court’s role as upper guardian invites such an approach. The
respondents resisted reservation. According to them, the trial is not imminent, the
issues in the suspension application stand apart from those for trial, the present
record is sufficient to decide costs now, and reservation would merely defer a
question ripe for determination.
[10] The discretion to reserve costs exists, but it is sparingly exercised. Costs
ordinarily follow the determination of the proceedings to which they relate.
Reservation is the exception, typically resorted to where the court is unable, on
the material before it, to dispose justly of the costs question, and where the
issues bearing on that question fall to be decided in later proceedings between
the same parties before the same court.
[11] This is not, in my view, an appropriate case for reservation.
[12] The suspension application is discrete. It was launched, opposed on affidavit,
argued, and now abandoned. The questions of withdrawal and costs are capable
of d etermination on the present record. The trial will be concerned with L[...]’s
long-term care and contact on different evidence, and the trial court will, by then,
be more remote from the conduct that bears on costs in this application than I am
at present.
[13] The cost question is fully ripe. The basis on which the applicant seeks to displace
the ordinary rule, namely the unclean -hands argument founded on the non -
disclosure in the respondents’ January 2026 affidavits, is a matter of which I have
a complete picture. The affidavits have been filed, the chronology is established,
and the legal principles are settled. There is no respect in which the trial court will
be better placed than I am to make a fair allocation.
[14] Reserving costs would also defer for a long time, and for no purpose, the
resolution of a discrete dispute on which both sides have been heard.
[15] The court’s role as upper guardian engages decisions about a child’s care,
contact, and welfare. It does not require every collateral procedural question to
be deferred to the trial court. The d etermination of costs on an application
withdrawn on the eve of the hearing falls to be made according to the ordinary
principles, and there is nothing in L[...]’s interests (or that of W[...]’s) that is
served by leaving it open.
[16] The application for reservation is refused.
The default position on costs
[17] The general rule is that the party who withdraws is liable for the costs of the
opposing party, who has been put to the trouble and expense of meeting a claim
or application that is no longer pursued. As Van Reenen J observed in Reuben
Rosenblum Family Investments (Pty) Ltd and Another v Marsubar (Pty) Ltd 2003
(3) SA 547 (C) at 550C, departures from that rule are not lightly entertained and
require some special feature in the conduct of the parties or the circumstances of
the case.
[18] In matters concerning children , the discretion is informed by the court’s role as
upper guardian, and by a reluctance to discourage litigants from approaching the
court in good faith on a question affecting a child’s welfare. That approach is
reflected in JJ v RV (5832/2019) [2020] ZAFSHC 226, on which the applicant
reflected in JJ v RV (5832/2019) [2020] ZAFSHC 226, on which the applicant
relied. It does not, however, establish any rule that costs may not be awarded in
litigation concerning a child. The discretion remains one to be exercised on
consideration of both the child’s interests and the conduct of the parties.
[19] The applicant pitches his case on a single ground against the ordinary rule. He
contends that the respondents, in their answering affidavits of 27 January 2026,
failed to disclose facts within their knowledge concerning the first respondent’s
recreational drug use, and that this non -disclosure constitutes an abuse of
process which disqualifies them from the costs they would otherwise receive.
The argument is based on the principle, recently affirmed by the Constitutional
Court in Villa Crop Protection (Pty) Ltd v Bayer Intellectual Property G mbH 2024
(1) SA 331 (CC), that a court will not lend its process to a litigant who comes
before it with unclean hands.
The unclean hands argument
[20] The factual premise of the argument requires careful consideration. The first
respondent’s answering affidavit, deposed to on 27 January 2026, was confirmed
by the second respondent on the same date. In that affidavit, the first respondent
denied that L[...] would suffer harm from the December 2025 order, relied on the
report of his expert, Mr Dowdall, and contended that the application disclosed no
exceptional circumstances. The replying affidavit was deposed to on 2 February
2026.
[21] It is now common cause that on 27 January 2026 , the first respondent had used
cannabis in Israel in October 2025, had used recreational drugs immediately
after the hearing on 2 December 2025, had used methamphetamine and cocaine
during a ten-day period in Australia, and had used recreational drugs at a festival
in Citrusdal in mid -January 2026. The use was both recent and ongoing, and
close in time to the period under consideration in the suspension application. The
second respondent was aware of at l east some of these matters when he
deposed to his confirmatory affidavit. None of this was disclosed in the answering
deposed to his confirmatory affidavit. None of this was disclosed in the answering
or confirmatory affidavits in the suspension application. None of it was disclosed
to Mr Dowdall, whose report contained the statement that the first respondent’s
depression “has been adequately treated and managed”.
[22] The applicant submits that this non -disclosure rendered the opposition to the
suspension application an abuse of process and that the respondents, having
come to court with unclean hands, are not entitled to their costs. He cites
paragraph [72] of Villa Crop in support.
[23] The submission is not without force. Deponents to affidavits in proceedings
concerning the welfare of a young child owe a duty of candour to the court. They
are not entitled to confine themselves to answering the questions framed by the
other side . T hey must place before the court all material facts within their
knowledge that bear on the relief sought. Where a parent deposes that no harm
will accrue to the child from a particular contact regime, and where his fitness for
contact stands to be assessed in part by reference to his own conduct, the line
between selective answering and material non -disclosure is a narrow one. The
argument cannot, however, bear the weight that the applicant places upon it, for
the reasons that follow.
[24] Villa Crop , as Unterhalter AJ emphasised, is a power exercised sparingly. Its
consequence, the foreclosure of access to the court’s process, is a serious one
in light of section 34 of the Constitution (the right of access to courts). T he
doctrine is reserved for cases in which the abuse is grave and so connected to
the substance of the matter that the court should not hear it at all. The doctrine
was not invoked at the time to bar the respondents’ opposition, and I am not
persuaded that it can now be used as the basis to deny them costs.
[25] The scope of the suspension application was narrower than the applicant’s
submission allows. The s 18 enquiry was directed to whether L[...] would suffer
irreparable harm under the contact regime fixed by the December 2025 order,
irreparable harm under the contact regime fixed by the December 2025 order,
and whether reciprocal harm would be visited on the respondents and W[...] if
that regime were suspended pending appeal. It would have turned principally on
evidence of L[...]’s adjustment, the reports of his school principal, and the expert
opinion on his development. The first respondent’s drug use, although of obvious
importance in the main matter, did not occupy the center of the s 18 enquiry, and
its non -disclosure is unlikely to have altered the outcome of the suspension
application.
[26] The sequence of events weighs against the unclean -hands argument as the
operative cause of the withdrawal. The applicant did not abandon the suspension
application when the drug use emerged after 7 March 2026. He persisted with it,
together with the application for leave to appeal and the related proceedings, for
a further two months. The withdrawal came after leave to appeal had been
refused, not at the time of the disclosure. That is, as the applicant’s own
argument accepts, the position. The unclean -hands point is therefore deployed
not as the cause of the withdrawal but as a basis for departing from the ordinary
rule on costs. That is permissible, but it requires that the asserted abuse have a
real bearing on the application now being withdrawn.
[27] The non-disclosure was a serious matter. It has had consequences in the drug
application, where it bore on the interim care arrangements, and it is liable to be
revisited on any future affidavit by the first respondent in this litigation. In the
present context, however, given the limited reach of the s 18 enquiry and the
timing of the withdrawal, the non -disclosure does not, in my view, supply a
sufficient reason to displace the ordinary rule that the costs of a withdrawn
application are for the party who has withdrawn it.
Scale and number of counsel
[28] The application engaged questions of statutory interpretation under section 18 of
the Superior Courts Act, the scope of the unclean hand’s doctrine post -Villa
Crop, and the application of constitutional principles concerning the best interests
of children to interlocutory relief pending appeal. The papers ran to several
hundred pages, and the matter was vigorously contested by both sides. In those
hundred pages, and the matter was vigorously contested by both sides. In those
circumstances, costs on Scale C and two counsels are appropriate.
Order
[29] In the result, I make the following order:
1. The applicant is granted leave to withdraw the application brought in terms of
section 18(2) read with section 18(3) of the Superior Courts Act 10 of 2013 for
the suspension of paragraph 4.1.1 of the order granted on 2 December 2025.
2. The applicant is ordered to pay the respondents’ costs of the application, such
costs to be taxed on Scale C and to include the costs of two counsel where
so employed.
____________________
M FRANCIS
Judge of the High Court
Appearances:
For Applicant: Adv B K Pincus SC & Adv R D E Gordon
Instructed by: Maurice Phillips Wisenberg
For First & Second Respondent: Adv S B Van Embden & Adv J L McCurdie SC
Instructed by: Norman, Wink & Stephens Attorneys