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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Reportable/ not Reportable
Case No: 5797/2025
In the matter between:
D[...] S[...] Applicant
and
K[...] V[...] D[...] M[...] Respondent
Coram: MNYOVU AJ
Date heard: 24 April 2026
Date delivered: 07 August 2026
ORDER
i. The respondent is ordered to pay costs reserved on 31 October 2025.
ii. The applicant is granted leave to present its bill of costs.
iii. The respondent is ordered to pay costs of this application.
JUDGMENT
___________________________________________________________________
MNYOVU AJ
Introduction
[1] This is an opposed application for relief of costs reserved emanating from
an urgent application judgment of Honourable Acting Judge Mabuza.
[2] The applicant brought an urgent application (the main application) for
restoration of the applicant’s contact and /or visitation rights to his minor
child, which application was opposed by the respondent who filed an
answering raising points in limine on the issue of urgency in that urgency
was self – created, the Court disagreed with the respondent’s submissions
and granted applicant the relief sought, on 31 October 2025, the following
was ordered on costs para 6:
‘Costs are reserved’.
Legal principles on reserved costs
[3] If a Court reserved costs , to be argued and adjudicated upon at a later stage, it
cannot be taxed until the court has made a ruling on who is ultimately liable for
the reserved cost.1
[4] In AA Mutual Insurance Association Ltd v Gcanga 2 it was held that a reserved
costs order does not become attached to the main judgement and that it
‘remained separate from and independent of that judgement and did not
necessarily follow the result of the action between the parties’
[5] The applicant obtained a final relief on the same terms of restoring his contact
rights/ visitation on opposed basis, an order was granted with reserved cost,
those costs remained separate and independent from this judgement.
[6] For this legal position to be considered in the above contest of the facts of this
matter. This being the case, in my view, it becomes apparent that the applicant
became entitled to ask this court to determine who should be responsible for the
reserved costs, failure and or neglect to address reserved costs orders prior to
finalisation of a matter can ultimately cost clients a vast amount in legal fees,
and the clients be burdened with reserved costs.
1 See, in this regard, the matter of Martin No v Road Accident Fund 2000 (2) SA (W) where it was held at p1029 C -D as
follows: Returning to our own practice: where the judgement is given in a case where costs of earlier proceedings have
been reserved, the Court should, and generally does, deal with any costs that were reserved. If it overlooks its task to
do so, its attention is drawn to the oversight. If this is not done as judgement is delivered, the parties can approach the
court to deal with the outstanding issue. Costs that are reserved for the decision of the Court thereon ought to be
adjudicated upon by the Court unless the parties, by agreement, relieve the Court from that task.’
2 1980 (1) (SA) 858 (A).
[7] Judge Albert Kruger and Wilma Mostert in Taxation of Costs: A Practical guide
(Durban: LexisNexis 2010) at 10 states that:
‘It is therefore the duty of the attorney or counsel to bring the
reserved costs under the court’s attention to make a final decision
neither on trial or settlement of the matter. I f the attorney or
advocate neglects to ask the court for an order or to obtain an
agreement on the reserved costs, those costs cannot be recovered
from the other party on taxation and their own client would be
legally responsible to settle reserved costs in respect whereof no
further costs order was made.’
Submissions by the applicant
[8] It is submitted by the applicant ’s counsel that the reserved costs are
emanating from urgent application , in respect of the cost’s arguments, the
respondent was forewarned through her legal representative to restore the
contact rights of the applicant in terms of Section 28 of the Children’s Act,
38 of 2005, failing which an urgent application will be brought before
Court.
[9] The correspondent letter resembling the timelines , dated 23 October 2025
were sent to the respondent’s legal repre sentatives, requesting the
mediation to the matter, to have a proper parenting plan drawn up to
regulate the parental rights and responsibilities for both parties, and
arrangements to be confirmed by no later than 24 October 2025, to with
respondent never responded.
[10] Counsel argued that respondent took the law into her own hands by
unilaterally refused the applicant his contact rights to the minor child, as it
was clear that the direct behaviour of the respondent and her subsequent
refusal to co-operate or respond to the request of the applicant , was not in
the best interest of the minor child, and led to urgent application.
[11] The counsel for the applicant submitted in his arguments that it is more
often than not the practice that Courts do not make costs orders in the
family matters, however, with this being said the Court also takes the
conduct, especially if egregious into account, this conduct includes the
communication, letter exchanged between parties, especially if th e
contents of those letters are contrary to the intentions of the Children’s
Act, which requires parties to take a reconciliatory approach to matters
involving children, the respondent’s behaviour in ignoring the contents of
the letters was also in contradiction to the reconciliatory approach as set
out in the Children’s Act.
[12] It was submitted that in the circumstances the respondent’s conduct as set
out above warrants that an appropriate costs order should be granted in
favour of the applicant , as such the aspect of costs should follow the
successful party, and those costs sought by the applicant should include
cost of counsel as per Scale B, as the Honourable Court reserved the issue
in respect of costs.
Submissions by the respondent
[13] The Counsel for respondent argued the points in limine that were detailed
in respondent’s answering affidavit which I do not need to repeat them.
[14] In arguing the costs reserved in the main application, Counsel for the
respondent submitted that from the correspondences exchanged, it was
clear indication from both parties that all parties are open to mediation, as
parties were in the midst of discussing a possible suitable date to be around
November 2025 and there was non-compliance of Rule 4 1A by the
applicant.
[15] Counsel for the respondent further submitted that applicant should have
just followed through the request for mediation and refrained from
incurring unnecessary costs, in so -called urgency that may have existed
and self-created, as such applicant’s launching the urgent application in the
face of ongoing attempts at mediation and without complying with Rule
41A was unreasonable and unjustifiable, therefore, the applicant should be
liable to pay costs of the urgent application.
Issues for determination
[16] A judgement on costs is a court order which party must pay the legal
expenses in a lawsuit, in South Africa, the general rule is that the
successful party is awarded their costs, which means a losing party pays. In
awarding costs, a court has a discretion which should be exercised
judicially, a court should consider the circumstances of each case,
weighing the issues in the case, the conduct of the parties and any other
circumstances which may have a bearing on the issue of costs and then
make such order as would be fair and just between the parties.3
[17] In this current matter I am tasked to adjudicate on the reserved costs and
unreserved them from the main application that was brought before my
sister Acting Judge Mabuza on 31 October 2025. The parties have
submitted and argued for the adjudication of the reserved costs before me
to decide which party will be liable for the payment of the costs, if any.
3 Fripp v Gibbon & Co 1913 AD 354 at 363.
[18] Any party from the main application had the duty to bring the application
to unreserve the costs, however, the applicant launched this current
application, and the respondent opposed it.
Analysis on Costs
[19] Counsel for the respondent did not fully address this Court on the grounds
of the conduct and behaviour of the respondent in contravening section 58
of Children’s Act, and the reasons why in the main application the
applicant was granted the relief sought on urgent basis . counsel simply
argue on points of limine from the respondent’s answering affidavit, which
was not of assistance before me.
[20] In the present case I am gleaned to the conduct of the respondent in the
main application as alluded in para 16 of my judgment. In the
circumstances of this case, and weighing the issues in this case, I am of the
view that the conduct of the respondent was egregious and contrary to the
intentions of the Children’s Act.
[21] It is trite law that the general rule pertaining to costs is that the successful
party should be awarded costs and this rule should not be departed from
unless there are good reasons for doing so, I can see no reason why the
applicant should not be awarded costs at this stage, the respondent was
sole cause that the applicant launched the urgent application, which the
respondent lost focus on the rules of the Urgent applications , and chose to
ignore Children’s Act on the best interest of the child, the respondent
treated the application into her own best interest in contravention of the
Children’s Act.
[22] Having considered the evidence before me I am satisfied that the applicant
is successful in his urgent application . T he applicant does not wish the
respondent to pay any punitive costs, the applicant seeks normal costs
occasioned by the applicant, which the applicant as bare minimum is
entitled to.
Order
[23] In the result, the following order is made:
23.1 The respondent is ordered to pay costs reserved on 31 October 2025.
23.2 The applicant is granted leave to present its bill of costs.
23.3 The respondent is ordered to pay costs of this application.
_________________________
B. F. MNYOVU
ACTING JUDGE OF THE HIGH COURT
NORTH WEST HIGH COURT, MAHIKENG
APPEARANCES:
Counsel on behalf of Applicant: Adv S. Nel
Instructed by: Laufs Attorneys
Counsel on behalf of Respondent: Adv C. Wessels
Instructed by: Jooste and Moodie Attorneys