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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 to pay the costs of the application and of the counter -application
heard on 2 December 2025, such costs to be taxed on Scale C and to include
the costs of two counsel where so employed.
2. For the avoidance of doubt, this order does not extend to the costs of the
postponement application, which were disposed of by paragraph 1 of the order of
2 December 2025.
JUDGMENT ON COSTS
FRANCIS, J:
Introduction
[1] This is one of three cost judgments arising from the litigation between the parties.
The other two concerns the costs of the applicant’s section 18 application for
suspension of paragraph 4.1.1 of the order of 2 December 2025, pending appeal,
and the costs of the urgent application of 10 March 2026 relating to the first
respondent’s drug use and interim care and contact. The three judgments deal
with discrete events, governed by their own considerations . This judgment, the
most substantial of the three, concerns the application and counter -application
heard on 2 December 2025 and determined on their merits.
[2] On 2 December 2025, following argument, I made an order which (i) refused the
applicant’s application for the postponement of certain of the relief sought in the
respondents’ counter -application; (ii) regulated holiday contact between the
applicant and the children, W[...] and L[...], during the December 2025/January
2026 school holiday; (iii) put in place an interim regime governing the applicant’s
contact with each child during term time, pending finalisation of the action
instituted by the applicant; (iv) granted the social -media interdict and the related
restraints sought by the respondents in their counter -application; and (v) directed
the applicant to cooperate with the ongoing psychological assessment being
conducted by Mr Bernard Altman. My reasons for that order were handed down
on 11 February 2026.
[3] Paragraph 5 of the order of 2 December 2025 reserved all questions of costs in
respect of the application and counter -application, including the costs of two
counsel. Paragraph 1 of the same order dealt separately with the costs of the
postponement application, which were ordered to be paid on Scale C. It is the
costs of the application and counter -application, exclusive of the postponement
application, that now fall to be determined.
[4] The applicant contends that there should be no order as to costs. The
respondents seek their costs on Scale C, including the costs of two counsel
where so employed.
The outcome of the application and counter-application
[5] Costs ordinarily follow the result. I begin, therefore, with who succeeded and who
did not.
[6] The application sought interim contact arrangements pending finalisation of the
action. The applicant sought, in respect of L[...], implementation of the regime
recommended in the joint expert minute of July 2024, and, in respect of W[...],
contact on a basis that went beyond what his own expert, Ms Pettigrew, had
recommended in her report of September 2025. He sought, in addition, a twenty -
day holiday contact with L[...] over the December 2025/January 2026 school
holiday and the appointment of a parenting coordinator.
[7] The order I made did not give the applicant what he sought. In respect of L[...],
contact was aligned with that ordered in respect of W[...], rather than reflecting
the 6:8 schedule for which the applicant contended. In respect of W[...], the order
did not provide for contact every Wednesday and two weekends a month, as the
applicant had sought. As to the December 2025/January 2026 school holiday,
L[...] had three days alone with the applicant from 4 to 7 December 2025, and
both children were with the applicant from 14 to 27 December 2025, being
thirteen nights. That was materially different from, and significantly less than, the
twenty days alone with L[...] for which the applicant contended.
[8] The counter-application, by contrast, succeeded in substance. The respondents
obtained the social -media interdict, which was a remedy of real importance to
them. They obtained an order directing the applicant to cooperate with Mr
Altman’s ongoing assessment. The contact regime granted accorded in essence
with that for which the respondents had contended in their amended counter -
application of 26 November 2025. There were differences of detail, in particular
as to certain features of holiday contact, but the principal relief which the
respondents pressed was granted. That much appears from paragraph 19 of the
reasons.
[9] On the ordinary rule that costs follow the result, the respondents are prima facie
entitled to their costs. The applicant must persuade me that some other order is
appropriate.
The applicant’s submissions
[10] The applicant’s case rests on three propositions. First, that he was seeking no
more than the regime agreed in the joint expert minute of July 2024 and ought
not to be penalised for relying on his own expert and on what had previously
been common cause. Second, the respondents amended their counter -
application on 26 November 2025, thereby abandoning aspects of the relief
originally sought. Third, that in matters concerning children costs ought not, as a
matter of principle, to follow the result (see, JJ v RV (5832/2019) [2020] ZAFSHC
226). I deal with each in turn.
The reliance on the July 2024 joint expert minute
[11] The first submission overstates the position. The relief sought at the December
2025 hearing was not coterminous with the regime agreed in the July 2024 joint
minute. In respect of W[...], the applicant’s amended Notice of Motion of
September 2025 and Ms Pettigrew’s report of the same month proposed contact
in line with the joint minute. But in his supplementary affidavit of 7 November
2025, the applicant pressed for more: additional weekend contact and contact
every Wednesday rather than every alternate Wednesday. The respondents’
counsel drew attention to this in argument. Ms Pettigrew’s report did not support
the wider contact ultimately sought.
[12] In respect of L[...], the July 2024 joint minute had been overtaken by events by
the time of the December 2025 hearing. Four further expert reports had since
been filed . Reports were filed by Mr Dowdall, Mr Altman and Ms Pettigrew of
September 2025, and the Family Advocate’s of 18 November 2025, which
incorporated the Family Counsellor’s report of 8 November 2025. The
respondents and their experts contended for the alignment of the children’s
contact regimes. The Family Counsellor’s recommendations as to holiday contact
bore little resemblance to what the applicant sought. A court is not bound to give
effect to a joint minute that is fifteen months old when considerably more recent
and broader expert material is before it.
[13] The applicant’s reliance on the July 2024 minute, therefore, does not displace the
ordinary rule. He was not inviting the court to give effect to an agreed expert
position. Instead, he was inviting the court to depart from a more recent body of
position. Instead, he was inviting the court to depart from a more recent body of
expert and Family Advocate material, much of which did not support his case.
That was a course open to him, but a course taken at the risk of an adverse
costs order.
The amendment of the counter-application
[14] The second submission overlooks the chronology. The Family Advocate’s report
became available only on 18 November 2025. The respondents amended their
counter-application within eight days. The amendment did not represent the
abandonment of any position pursues at the hearing. It brought the relief sought
into line with the most recent expert material. That is not capitulation but the
proper response of a litigant to the evidence.
[15] In any event, the relief sought succeeded in substance. The applicant’s
submission would have force only if he had succeeded on those issues on which
the respondents had moved. He did not. The core of the order — the alignment
of the children’s term -time arrangements — was what the respondents sought
and obtained.
[16] The applicant also submitted that no counter -application was necessary, the
respondents being able to advance their proposals regarding contact within the
application itself. That is wrong. The social-media interdict and the order requiring
cooperation with Mr Altman were substantive remedies which could not have
been granted otherwise than on a discrete claim. They were not collateral
observations capable of being grafted onto the applicant’s contact claim. The
counter-application was the proper procedural vehicle, and the relief granted
bears this out.
Costs in matters concerning children
[17] The third submission relies on the principle articulated in JJ v RV that the doors
of the court must remain open in matters concerning children, and that the
ordinary rule as to costs ought not to operate as an obstacle to access to the
court in such matters.
[18] The principle applies in its usual form where parents in good faith hold differing
views about what serves a child’s interests, each acting in what he or she
believes to be the child’s welfare. It does not, however, immunise litigants in
matters concerning children from costs altogether. The court retains a discretion
to be exercised with regard to the welfare of the child, but that discretion does not
preclude an order for costs. Where one party has succeeded clearly on the
merits, and the other has p ursued relief at variance with the recommendations of
the experts and the Family Advocate, the welfare consideration must be weighed
against those facts.
[19] There is a further consideration. The respondents are the children’s parents and
were defending the integrity of their parental authority against a third -party
section 23 contact application. The JJ v RV principle, typically applied to disputes
between parents, applies with less direct force in that setting. The respondents
were not advancing a parenting plan against an equal in standing . T hey were
defending their parental authority against an outsider. Having incurred the costs
of doing so and succeeded, the welfare consideration does not shield the
applicant from those costs.
The wasted costs occasioned by the late narrowing of the care claim
[20] One further matter requires consideration . The agreed order of 11 June 2025
provided that all questions of care and contact in respect of both children would
be determined at the hearing. The applicant filed an amended Notice of Motion
on 25 September 2025, but it was only in his practice note of 16 October 2025
that he made plain that he was no longer p ersisted with his care claim, having
instituted the action on 29 August 2025. Between 11 June and 16 October 2025,
the respondents and their experts, particularly Mr Altman, prepared on the basis
that care was in issue.
[21] Not all that preparation was wasted. Much of it goes to the contact dispute and
[21] Not all that preparation was wasted. Much of it goes to the contact dispute and
remains relevant to the action. But the respondents are entitled to point out, as
they did in argument, that the applicant’s late narrowing of relief occasioned
some duplication of work. I do not rest my costs order on this consideration,
which would in any event call for a more detailed assessment than is necessary
here. It is, however, a further reason why the ordinary rule should apply, and not
the making of no order as to costs.
Punitive costs
[22] The respondents’ heads of argument at the December 2025 hearing sought costs
on the attorney -client scale. They relied principally on the applicant’s conduct
during Mr Altman’s assessment, his conduct on social media, and the broader
course of the litigation. The applicant’s heads at the same hearing also sought
punitive costs, grounded in allegations of fraud on the court, said to have been
committed by the respondents and Mr Dowdall in the proceedings before
Lekhuleni J in late 2024.
[23] Punitive costs are not warranted on either side. The litigation was hard -fought
and turned on genuine differences as to the children’s interests. The applicant’s
case, although unsuccessful, was not unarguable, and the respondents’
opposition was substantial. Nothing in the conduct of either party before the
December 2025 hearing rises to the level required to justify a punitive order. The
applicant’s grave allegations against the respondents and Mr Dowdall, raised in
argument and elsewhere, formed no part of my reasons of 11 February 2026 and
form no part of this cost’s judgment. They may be ventilated at trial, and I express
no view on them here.
Whether the costs should be reserved for the trial court
[24] The applicant’s counsel submitted that the costs of the December 2025
application should be reserved for determination by the trial court. I do not accept
that submission. The application and counter -application were discrete
proceedings, fully argued and determined on their merits. The trial court will be
concerned with final care and contact on a fresh body of evidence and will be in a
markedly worse position than I am now to assess the costs of an interlocutory
hearing held in late 2025. The costs issue is ripe for decision, and the parties are
entitled to one.
Scale and number of counsel
[25] The application raised questions of statutory interpretation under the Children’s
Act, the application of section 23 to non -parental contact, the relationship
between contact and parental authority, the social-media restraints sought by the
respondents, and the constitutional best -interests standard. The papers were
voluminous, and the expert evidence both extensive and divided . Costs on Scale
C, including the costs of two counsel where so employed, are appropriate.
Order
[26] I make the following order:
1. The applicant is to pay the costs of the application and of the counter -application
heard on 2 December 2025, such costs to be taxed on Scale C and to include
the costs of two counsel where so employed.
2. For the avoidance of doubt, this order does not extend to the costs of the
postponement application, which were disposed of by paragraph 1 of the order of
2 December 2025.
____________________
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