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[2026] ZAGPJHC 683
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M.B.H v A.G.H (2025/130849) [2026] ZAGPJHC 683 (21 April 2026)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE
NO: 2025-130849
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
F.
MARCANDONATOS
21 April 2026
In the matter between:
H: M.
B.
Applicant
and
H: A.
G.
Respondent
This
judgment was handed down electronically by circulation to the
parties' and/or the parties' representatives by email and by
being
uploaded to Case Lines. The date and time for hand-down is deemed to
be 10h00 on 21 APRIL 2026
JUDGMENT
MARCANDONATOS
AJ
:
INTRODUCTION
[1]
The parties herein have been cited by their
full names. The parties have two minor children, each of whom
have also been cited
with their full names. In the interests of
the children and to protect their best interests, I deem it
appropriate to follow
standard practice and I shall refer to their
children, as the minor children, and in respect of the parties
themselves, I shall
refer to Applicant as “
Dad
”
and to Respondent as “
Mom
”
.
[2]
Dad
sought
that he be permitted to exercise overseas contact to his two minor
children in the United States of America (“
USA
”
),
born from the previous marriage between
Dad
and
Mom
.
[3]
The extent of the contact sought by
Dad
is set out in his Notice of Motion, on an interim
basis and pending the outcome of
Mom’s
appeal to the full bench of the Honourable Court
of the Relocation Order and Judgement of the Honourable Justice
Liebenberg AJ,
dated
6 June 2025
,
wherein the Court,
inter alia
,
determined the relocation of the minor children to the
USA
to be in their best interests.
[4]
Mom
opposed
the Application, which was enrolled for hearing before me in Open
Court on
4 February 2026
.
[5]
After Counsel for
Dad
had addressed this Court, Counsel for
Mom
commenced addressing me.
[6]
As
a consequence of indications I gave and questions posed to
Mom’s
Counsel,
the matter stood down and was settled in accordance with an
Agreement, which was made an Order dated
4
February 2026
[1]
,
resulting
in only the question of costs remaining, as the parties could not
agree on the costs. The matter concerning costs
was argued
before me virtually on
10
February 2026
,
on
the basis that irrespective of the Costs Order to be made, there
shall be no costs payable by either party in respect of the
virtual
hearing on
10
February 2026
[2]
.
[7]
In
Dad’s
Notice
of Motion
[3]
he seeks, in the
event of opposition,
Mom’s
Attorney
is to pay the costs of the Application
de
bonis propriis
alternatively,
Mom
to
pay the costs of the Application on the scale as between Attorney and
own client.
[8]
Mom
,
who opposed the Application, in her Answering Affidavit
[4]
sought that
Dad’s
Application
be dismissed with costs, on the Attorney and client scale, including
the costs of Counsel, on Scale C.
[9]
Dad
’
s
Counsel
in argument as well as in his Supplementary Heads of Argument dated
9
February 2026
[5]
,
did
not persist in the cost
de
bonis propriis
,
only the costs as claimed in the Notice of Motion, alternatively on
Scale C, including the costs of Counsel.
[10]
Counsel
for
Mom
in
his Practice Note dated
17
January 2026
[6]
,
sought
a dismissal of the Application with punitive costs and in his Heads
of Arguments dated
17 January
2026
[7]
,
he
seeks that Applicant pay the costs of the Application on a punitive
scale, including the costs of Counsel on Scale C and in the
draft
Order uploaded on
29
January 2026
[8]
,
seeks
an Order that the Application is dismissed with costs, on the
Attorney and client scale, including the costs of Counsel, on
Scale
C.
SUBMISSIONS
BY APPLICANT
[9]
INCLUDING ORAL
SUBMISSIONS IN BRIEF PERTAINING TO COSTS
[11]
Dad
contends
that the conduct of
Mom
,
is such that it warrants a Costs Order against
Mom
on the Attorney and own client scale, having
regard to the authorities.
[12]
Dad
submits
that
Mom
deliberately
frustrated him from having the minor children holiday in the
USA
so as to prejudice their LPR status in the
USA
and to attempt to alienate them from
Dad
.
[13]
In doing so,
Mom
sought to abuse the process of this Honourable
Court and its powers.
[14]
Mom’s
malicious
conduct prevented the minor children from holidaying with
Dad
in the
USA
since
Dad
departed South Africa at the end of
October
2024
. Further since that
time,
Dad
has
only been able to exercise limited in person contact with the minor
children in terms of his annual paid leave.
[15]
Dad
submits
that this Court ought to have regard to
Mom’s
explicit refusal herself to engage with
Dad
for travel arrangement, as a factor justifying
intervention to prevent unreasonable obstruction of
Dad’s
rights. This factor is particularly relevant
when
Mom
advised
Dad
of
the terms upon, which she would permit the minor children to travel
to the
USA
(
and
Dad
agreed
thereto
) and then
Mom
reneged thereon.
[16]
In casu
,
there is no basis whereupon
Dad
ought to be deprived of costs. The
opposition by
Mom
was
completely unreasonable and unfounded and
Mom’s
persistence therein has caused
Dad
to have incurred unnecessary costs.
[17]
It is respectfully submitted by
Dad
that he did everything within his power to avoid
having to become involved in an Application and that the opposition
thereto by
Mom
and
the attitude displayed by her generally towards
Dad’s
conduct, was completely unreasonable.
SUBMISSIONS
BY RESPONDENT
[10]
INCLUDING
ORAL SUBMISSIONS IN BRIEF PERTAINING TO COSTS
[18]
Mom
sets
out the extensive and prolonged litigation that she had been
subjected to by
Dad
and sets out a stratagem of
Dad
to financially out-litigate her, which strategy
has led to a substantially indebtedness to her Attorney of Record and
submits that
she demonstrated the untruths and contradictions in
Dad’s
various
Affidavits.
[19]
Despite seeking that the minor children
holiday in the
USA
from
23 December
2025
until
14
January 2026
, a period of
approximately 22 days,
Dad
provides no explanation as to:
19.1.
how it would be in the minor children’s
best interests for them to be cared for by a stranger in the
approximately 5 days
that
Dad
would be compelled to be present at his place of
employment; and
19.2.
the identity of the person who would be
caring for the minor children, whilst he is at his place of
employment.
[20]
In any event
Dad
had contact in South Africa with the minor
children during the
December 2025
and
January 2026
period and will exercise contact with the minor
children during
February 2026
,
in South Africa.
[21]
In
argument,
Mom’s
Counsel
highlighted that this is a matter involving children and there is no
“
winner
”
in
the matter. He further submitted argument, by relying upon the
exchange of correspondence and in particular a letter addressed
by
Respondent’s Attorney dated
30
June 2025
[11]
in
which he referred to paragraphs 2 and 3 thereof in which it is stated
as follows:
“
2.
In respect of Paragraph 4.7 (including the sub-paragraphs thereto)
our client has the following suggestion to be made in
respect of the
proposed written agreement (to be made an Order of Court) between the
parties.
3.
The written Agreement (to be made an Order of Court) should contain
the provision that our client be named as Interim Primary
Resident
Parent pending the outcome of the Relocation Application.
”
[22]
Mom’s
Counsel
referenced this to the Notice of Motion, arguing that in spite of the
Tender made by
Mom
and
as contained in the aforesaid letter,
Dad
failed (
i.e.
neglected
) to seek relief akin to terms
of the Tender, Counsel further relying on paragraph 4 of the
aforesaid letter wherein it states:
“
4.
In the event that your client is agreeable to the above, same can be
included in a written agreement (to be made an Order
of Court).
Further discussions can be had in order for the agreement to be made
an Order of Court in respect of the June-July
2025 school holidays
provided that your client is agreeable to the contents of paragraph 3
Supra.”
[23]
Counsel
referred to
Dad’s
Attorney’s
response to the aforesaid letter dated
1 July
2025
[12]
,
submitting
that in the Heads of Argument filed on
22
October 2025
,
it was submitted by
Dad’s
Counsel
that Applicant was prepared to agree to this additional provision
being included in the written agreement to be concluded
between the
parties
[13]
, however, this is
factually not correct because in the said letter
Dad
wanted
additional inclusions in the agreement as referenced in paragraph 4.2
of the aforesaid letter in which it is stated:
“
4.2.
The written agreement is to also provide for our client to exercise
holiday contact with the minor children in the USA
for the balance of
their July 2025 long school holiday, their mid-term break from 3 to
12 October 2025 and their December 2025
long school holiday. In
respect of the December 2025 school holiday, our client envisages the
minor children spending Christmas
with your client. Our client
intends to return to South Africa for a short period over Christmas
and would like the minor
children to return with him to the USA after
Christmas for the balance of the holiday. Provision will also
need to be made
in the agreement for our client to have holiday
contact in the USA beyond December 2025, as your client’s
Appeal may not
have been adjudicated upon by that time.”
[24]
Counsel further referred to paragraph 3 of
the same letter arguing that it introduced a new condition not
previously included in
which it states:
“
3
.
We are instructed to place on record that our client’s new
condition, as set out in paragraph 3(three) of your emails
under
reply was not previously part of your client’s tender for
holiday contact made by your client’s Counsel in Open
Court on
22 May 2025. We still await receipt of the transcript of these
Court proceedings from yourselves, which transcript
your client has
to date, refused (unreasonably so) to provide to us.”
[25]
The thrust of
Mom’s
Counsel’s argument therefore being that, in
spite of the Tender made by
Mom’s
Attorney as aforesaid, there was no acceptance
thereof, nor was this dealt with in the Notice of Motion.
Accordingly, there
was no improper opposition by
Mom
of this Application and therefore no costs ought
to be granted against her, but instead against
Dad
as claimed.
COURT’S
CONSIDERATIONS
[26]
I
have difficulty in reconciling the submissions advanced by
Mom’s
Counsel
from the Bar, with the contents of
Mom’s
Answering
Affidavit
[14]
, particularly
her responses to the correspondence highlighted above, which were
directly addressed in
Dad’s
Founding
Affidavit
[15]
. The
Answering Affidavit does not sustain the argument now contended for.
Had this been a material component of
Mom’s
defence
to the Application, one would reasonably have expected it to be
clearly and unequivocally advanced on Oath. It’s
emergence only in oral argument and then in the context of costs,
strongly suggests that it constitutes no more than an
ex
post facto
attempt
to mitigate the consequences of an otherwise unsuccessful opposition.
[27]
Mom’s
Counsel’s
argument as advanced in oral submissions finds no support in the
Answering Affidavit. This deficiency is not
a matter of
emphasis, nuance or elaboration. It concerns a substantive
defence which, if genuinely relied upon, ought to
have been pleaded
in the Affidavit. The belated reliance on this contention,
raised for the first time during argument, renders
it unpersuasive.
[28]
It is trite that Motion proceedings stand
or fall by the Affidavits. Submissions from the Bar cannot be
introduced to supplement
or replace evidence that was required to be
placed before the Court on Oath. Where the Answering Affidavit
is silent on a
contention later sought to be advanced,
Mom’s
Counsel cannot be permitted to advance it from the
Bar.
[29]
What is particularly telling is that this
contention surfaced not as a genuine defence to the merits of the
Application, but only
as an afterthought in relation to the question
of costs. This further diminishes the weight that can properly
be attributed
to it.
[30]
Simply put, the Answering Affidavit does
not support the argument advanced in oral submissions. Had this
been a
bona fide
defence,
it would have been raised on Affidavit. It was not.
THE
LAW
[31]
The
purpose of an award of costs, is to indemnify a successful party who
has incurred expenses in instituting or defending an action
[16]
.
[32]
In
awarding costs, the Court has a discretion to be exercised judicially
upon a consideration of the facts in each case and that,
in essence,
means the decision is a matter of fairness to both sides
[17]
.
[33]
In
leaving the Court with a discretion, the Law contemplates that it
should take into consideration the circumstances of each case,
carefully weighing the issues in the case, the conduct of the parties
and any other circumstances, which may have a bearing on
the issues
of costs and then make such order as to costs as would be fair and
just between the parties.
[18]
[34]
The Appellate Division has further stated,
that since costs are in the discretion of the Court, it is
undesirable to lay down hard
and fast rules for the guidance of
Courts to which they will be expected to conform in the absence of
special circumstances.
[35]
Certain
rules exist for the guidance of the Honourable Court.
[19]
[36]
The
general rule in matters of costs, is that the successful party should
be given his costs and this rule should not be departed
from, except
where there are good grounds for doing so, such as misconduct on the
part of the successful party or other exceptional
circumstances.
[20]
[37]
Regarding attorney and client costs, it has
been said that the Court makes and Order of attorney and client
costs, in order to mark
its disapproval of the conduct of the losing
party.
[38]
In
Public
Protector vs South African Reserve Bank
2019 (6) SA 253
(CC)
the majority of the Constitutional Court stated
[21]
:
“
More
than 100 years ago, Innes CJ stated the principle that costs on an
attorney and client scale are awarded when a Court wishes
to mark its
disapproval of the conduct of a litigant. Since then, this
principle has been endorsed and amplified in a long
line of cases and
remains applicable. Over the years, Courts have awarded costs
on an attorney and client scale to mark their
disapproval of
fraudulent, dishonest or mala fides (bad faith) conduct vexatious,
and conduct that amounts to an abuse of the process
of Court.”
[39]
In
Bethell vs
Bland & Others 1996 (4) SA (472) (WLD)
,
it dealt with a variation of a custody order. On being
requested by Counsel for the Applicant to consider the Costs Order
it
had made in its Judgment in the custody dispute, the Court held as
follows:
“
(1)
There was no rule that in cases where a variation of a custody order
was claimed no order was made to costs. The
position was rather
that in custody – and access disputes it was frequently, by
reason of the circumstances of the case,
appropriate not to make an
order for costs.
[22]
Instances where Courts had not made orders as to costs should not be
elevated to “rules”. At most, they
could be
guidelines to the exercise of a judicial discretion. In each
case, the facts were crucial.
[23]
”
[40]
The
Honourable Court stated as follows
[24]
:
“
I
consider the
correct approach to be:
1. Generally
speaking, a successful litigant is entitled to his or her costs.
2. While it is
quite true that a custody dispute should not be seen as an
adversarial contest in the ordinary sense but rather
as an enquiry
into the best interests of the child, it cannot be denied that in
most cases the litigants are advancing their own
preferences and
seeking satisfaction of their love of the child. Often, too the
papers contain many attacks on the character
and conduct of the
opponents.
3. On the other
hand, it is also a consideration that a party should not be
discouraged from putting up a case which he or
she, on broadly
reasonable grounds, thinks to be in the interest of the child for
fear of having costs awarded against him or her
if unsuccessful.
By the same token, a party who is, on what turned out to be good
grounds, confident that his or her case
will prevail, should not be
discouraged from taken or resisting action because of the costs which
he or she will incur.
4. However, bona
fide and concerned a party may be, if his or her opponent’s
judgement of the issue prevails, it is
not, in the absence of
circumstances justifying it, fair that the opponent should be mulcted
in his or her own costs.”
COURT’S
DETERMINATION
[41]
I have had regard to
Mom’s
explicit and unequivocal refusal as set out in her
Answering Affidavit, to agree to
Dad
exercising contact to the minor children, anywhere
other than in the Republic of South Africa.
[42]
In my view, it was justified for
Dad
to have launched the Application. This is
particularly so when
Mom
had advised
Dad
of the terms upon which she would permit the minor
children to travel to the
USA
,
terms which
Dad
accepted, yet which
Mom
thereafter, without justification, failed to
honour. Instead of giving effect to her own stated position,
Mom
elected
to oppose the Application and persisted in maintaining an inflexible
stance that
Dad
could
not exercise overseas contact, a stance, which is irreconcilable with
the content of her Attorney’s letter dated
30
June 2025
.
[43]
Significantly, this purported reliance on
that correspondence, was not advanced in her defence on Affidavit,
but emerged only belated
during oral argument, then in relation to
the issue of costs. This conduct underscores the absence of a
bona fide
defence
and strongly suggests an attempt,
ex
post facto
, to mitigate the
consequences of an otherwise unreasonable and unsuccessful
opposition.
[44]
In my view,
Mom’s
conduct, when before viewed holistically,
constitutes conduct, deserving of this Court’s marked
disapproval. Her opposition
to this Application, was not only
unfounded and unreasonable, but amounted to an abuse of the process
of this Court, with the foreseeable
result that
Dad
was put to unnecessary and unavoidable expenses.
In weighing the conduct of the parties, as I am enjoined to do, I am
satisfied
that this matter falls squarely within the category of
exceptional circumstances justifying a departure from the ordinary
approach
to costs in children matters. It is precisely this
conduct, which warrants the exercise of my discretion in favour of a
punitive
costs order.
[45]
In the premise, I find it appropriate that
Mom
ought
to pay
Dad’s
costs, on a punitive scale.
THE ORDER:
[46]
Respondent to pay the costs of this
Application on the scale as between Attorney and own client,
including the costs of Senior Counsel,
excluding the costs of
argument in respect of this Application and the attendance at Court
on
4 February 2026
heard virtually.
F.
MARCANDONATOS
Acting
Judge of the High Court
Gauteng
Division, Johannesburg
Heard
:
10 February 2026
Judgment
:
21 April 2026
Appearances
For
Applicant
: Advocate N Haskin SC
Tel: 083 610 1060
Email:
[email protected]
Instructed
by
: Kamal Natha
Attorney at Law
Tel: 087 813 4718
Cell: 083 313 3372
Email:
[email protected]
/
[email protected]
/
[email protected]
For
Respondent
Advocate N Riley
Tel: 082 338 4870
Email:
[email protected]
Instructed
by
: Bolus Attorneys
Tel: (010) 020 1893
Email:
[email protected]
[1]
CL017-7
to 017-6
[2]
Supra
FN 1 – CL017-6 parag 2
[3]
CL001-6
Prayer 2
[4]
CL004-44
[5]
CL013-1-00-parag
14.24
[6]
CL007-2-20
– 007-2-24 parag 10
[7]
CL015-1
to CL015-15 parag 31
[8]
CL020-1
to CL0020-2 Prayer 1
[9]
[10]
[11]
CL022-1
under the folder “Correspondence”
[12]
CL022-4
to CL022-5 under the folder “Correspondence”
[13]
Applicant’s
HOA – CL013-24 to CL013-57 parag 5.6
[14]
Supra
FN4
[15]
CL006-23
to CL006-27
[16]
Texas
Company (SA) Limited vs Cape Town Municipality,
1926 AD 467
at 488;
Van Loggerenberg: Erasmus Superior Court Practice, Vol.2,
p.D5-1
[17]
Fripp
vs Gibbon & Co,
1913 AD 354
; Van Loggerenberg Supra,
p.D5-6
[18]
Fripp
vs Gibbon & Co Supra at 363
[19]
Van
Loggerenberg Supra pp. D5-8 to D5-14
[20]
Fripp
vs Gibbon & Co Supra at 354; National Home Builders
Registration Council vs Xantha Properties 18 (Pty) Ltd,
2019 (5) SA
424
(SCA) at 431E - 432A
[21]
Public
Protector vs South African Reserve Bank,
2019 (6) SA 253
(CC) at
316C – 319A
[22]
473E,
read with 474A-B
[23]
At
p. 474H
[24]
At
p.475