IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: 14649/2024
In the matter between:
VENUDHIRA MOODLEY PLAINTIFF
and
MELOMED CLAREMONT HOSPITAL (PTY) LTD t.a.
MELOMED TOKAI DEFENDANT
Coram: JONKER AJ
Heard: 27 August 2026
Delivered: 31 August 2026
Summary: Civil procedure – withdrawal of action – Uniform rule 41(1)(a) – notice
of withdrawal delivered after set -down without the consent of the other party or
the leave of the court – leave granted – whether a tender of party-and-party costs
embodied in such a notice binds the court as to scale – held that it does not –
costs – attorney-and-client scale – plaintiff persisting with the action after it had
lost its practical purpose – punitive costs ordered in respect of that period only.
ORDER
1. The plaintiff is granted leave in terms of Uniform rule 41(1)(a) to withdraw
the action, such withdrawal to take effect from the date of this order.
2. The plaintiff shall pay the defendant’s costs of the action incurred up to
and including 21 January 2026 on the party -and-party scale, counsel’s
fees to be allowed on scale B in terms of rule 67A.
3. The plaintiff shall pay the defendant’s costs of the action incurred from 22
January 2026 to date of this order, including the hearing on 27 August
2026, on the scale as between attorney and client, counsel’s fees to be
allowed on scale B in terms of rule 67A.
JUDGMENT
Jonker AJ:
Introduction
[1] The plaintiff no longer wishes to pursue this action. Shortly before two
special pleas were due to be argued, the plaintiff delivered a notice purporting to
withdraw the action and tendered the defendant’s costs on the party -and-party
scale.
[2] The defendant did not consent to the withdrawal when the notice was
delivered, but it does not now oppose the granting of leave to withdraw the
action. It does, however, take issue with the scale of the costs tendered. It
contends that the plaintiff’s conduct of the litigation warrants an order for costs on
the attorney-and-client scale.
[3] It is that issue which ultimately brought the parties before me. Both parties
delivered comprehensive heads of argument, for which I am grateful. They were
of considerable assistance in identifying the relatively narrow issue that remains
for determination.
[4] The action had already been set down when the plaintiff delivered the
notice of withdrawal. It is common cause that the defendant did not consent to
the withdrawal and that the plaintiff did not first obtain the leave of the Court as
required by Uniform Rule 41(1)(a).
The relevant background
[5] It is necessary to set out the history of the litigation to the extent relevant
to the exercise of the discretion on costs.
[6] The plaintiff instituted the action during June 2024. The cause of action
concerned the purported termination of a lease. Whatever may ultimately have
been the merits of the parties’ respective positions, it is common cause for
present purposes that the action was not moot when it was instituted. The
plaintiff remained in occupation and the litigation had a practical purpose while
the lease continued to endure. The lease expired by effluxion of time on 30
November 2025.
[7] The action was, however, not prosecuted with any particular expedition for
a considerable period of some 15 months since service of the summons.
[8] That changed during November 2025. The plaintiff caused subpoenas to
be issued and delivered a notice of bar requiring the defendant to plead. The
defendant thereupon delivered two special pleas in which it raised the question of
mootness. From that point onwards it was clear that the practical foundation for
the principal relief sought in the action had fallen away.
[9] The plaintiff nevertheless continued with the litigation. Replications were
delivered in response to the special pleas on 22 January 2026 and further
procedural steps followed.
[10] During February 2026, the plaintiff filed a Rule 37 questionnaire and
Notice of enrolment of the matter. On 6 May 2026, and at the pre -trial
conference, the defendant sought a separation of issues so that the special pleas
could be determined first. Its position was that determination of those pleas
would be dispositive of the action and avoid the unnecessary ventilation of the
merits.
[11] The matter was so separated, and the file was declared allocation ready.
27 August 2026 was ultimately allocated as the date for the hearing of the special
pleas. The defendant duly delivered its heads of argument in accordance with the
applicable practice directives on 5 August 2026.
[12] The following day the plaintiff delivered the notice purporting to withdraw
the action and tendered the defendant’s party-and-party costs.
[13] The defendant immediately took issue with the tender. It contended that,
having regard to the plaintiff’s persistence with the action after its practical
purpose had disappeared, it was entitled to its costs on the attorney -and-client
scale.
[14] Correspondence followed. The parties were encouraged to attempt to
resolve what had by then become a dispute solely about the scale of costs.
Regrettably, they were unable to do so.
[15] I say regrettably because the substantive litigation is over. The parties
nevertheless remained sufficiently entrenched in their respective positions to
require the allocation of judicial time to determine the scale upon which the costs
of that litigation are to be paid.
[16] The history between the parties may provide some explanation for the
strength with which each side has pursued its position. It cannot, however,
determine the proper exercise of the Court’s discretion.
The purported withdrawal
[17] Uniform rule 41(1)(a) provides, in relevant part, that a person instituting
proceedings may withdraw them at any time before the matter has been set
down, but thereafter only with the consent of the parties or with leave of the
court. Rule 41(1)(b) provides that a consent to pay costs embodied in such a
notice shall have the effect of an order of court for those costs. Rule 41(1)(c)
provides that, if no such consent is embodied in the notice of withdrawal, the
other party may apply to court on notice for an order for costs. None of this is in
dispute.
[18] The rule is clear. Once proceedings have been set down, a unilateral
notice of withdrawal without the consent of the other party or the leave of the
court does not, without more, bring the proceedings to an end. 1 It follows that the
plaintiff’s notice did not, of itself, validly terminate the action.
[19] That does not mean that the plaintiff should now be compelled to continue
litigating an action which it no longer wishes to pursue. In Levy2 the Appellate
Division emphasised that it is not ordinarily the function of a court to compel a
litigant to proceed with an action against their will. A court may intervene where
the withdrawal itself constitutes an abuse of its process, but, as the Appellate
Division observed with reference to Hudson,3 that is a power to be exercised with
great caution and only in a clear case.
[20] The defendant does not seek to compel the plaintiff to proceed with the
merits. Its complaint concerns costs. There is accordingly no reason to refuse
leave to withdraw the action. I shall grant that leave.
[21] The consequence is that the substantive dispute falls away and the issue
which remains is costs.
The effect of the tender
[22] The plaintiff submits that the tender of party -and-party costs should
effectively bring the matter to an end. Reliance was placed, amongst others,
upon rule 41(1)(b) and (c) and on authority holding that a court will not compel a
litigant to proceed with proceedings which it no longer wishes to pursue, and will
not enquire into its motive for withdrawing them. That line of authority is directed
1 See Protea Assurance Co Ltd v Gamlase and Others 1971 (1) SA 460 (E) at 465G; Reuben
Rosenblum Family Investments (Pty) Ltd and Another v Marsubar (Pty) Ltd 2003 (3) SA 547 (C)
at 550C.
2 Levy v Levy 1991 (3) SA 614 (A) at 620B-C.
3 Hudson v Hudson and Another 1927 AD 259 at 268.
at whether leave to withdraw should be granted. It does not govern the terms
upon which such leave is granted, and it does not determine the scale of costs.
[23] The plaintiff relied upon Pienaar4. The defendant sought to distinguish it
on the ground that it concerned magistrates’ courts rule 27 and not Uniform rule
41. The two rules are, however, materially similar in the respect which matters
here: a tendered consent to pay costs has the force of an order of court and,
failing such a tender, the other party must apply for costs. The principal
difference is procedural, in that rule 27(3) prescribes an application within 20
days. Pienaar is accordingly of persuasive value on the point of principle.
[24] It illustrates a proposition which is relevant here. A litigant cannot, by
unilaterally selecting the scale of costs in a notice of withdrawal, necessarily
insulate itself against the court’s ordinary discretion in relation to costs where the
opposing party properly places the scale in issue.
[25] That conclusion does not depend upon the irregularity of the notice. Had
the plaintiff obtained the defendant’s consent or the leave of this Court before
delivering it, rule 41(1)(b) would have given the tender the force of an order of
court for the costs tendered. It would not have determined the scale upon which
those costs fall to be taxed where the opposing party places the scale in issue,
as the defendant promptly did. To hold otherwise would permit a withdrawing
litigant to fix, unilaterally and finally, the basis upon which its opponent is to be
indemnified, and would allow a party whose conduct of the litigation warranted
censure to escape that consequence by the simple expedient of abandoning the
proceedings and tendering the lower scale. In any event, the plaintiff withdrew
after set -down without the defendant’s consent and without leave. The action
consequently remained before this Court and the plaintiff requires the Court’s
leave to withdraw it.
leave to withdraw it.
4 Pienaar NO v Silver Lakes Homeowners Association NPC [2021] ZAGPPHC 898 (12 July
2021).
[26] In determining the terms upon which that leave should be granted, the
court retains its discretion as to costs, including the scale upon which they should
be awarded.
The applicable principles on costs
[27] The ordinary position where a litigant withdraws proceedings is well
established. The withdrawing litigant is ordinarily required to pay the opposing
party’s costs. Very sound reasons are required for departing from that position.5
[28] The fact that proceedings ultimately became moot does not, by itself,
determine the question of costs. The court must consider the circumstances in
which the proceedings were instituted, the subsequent events which rendered
the relief unnecessary or unobtainable, and the conduct of the parties thereafter.
[29] The more difficult question is whether the circumstances justify a
departure from the ordinary party -and-party scale. An attorney -and-client costs
order is punitive. It is not made merely because a litigant has been unsuccessful,
nor because its view of the law or the merits has proved to be incorrect.
[30] In Nel,6 the court explained that such an order may be justified by special
considerations arising either from the circumstances which gave rise to the
litigation or from the conduct of the losing party. The purpose is to ensure, more
effectively than an ordinary costs order would, that the successful party is not left
out of pocket as a result of the litigation.
5 See Germishuys v Douglas Besproeiingsraad 1973 (3) SA 299 (NC) at 300D-E and Wildlife and
Environment Society of South Africa v MEC for Economic Affairs, Environment and Tourism,
Eastern Cape 2005 (6) SA 123 (E) at 130G-131C.
6 Nel v Waterberg Landbouwers Ko-operatiewe Vereeniging 1946 AD 597 at 607.
[31] The punitive scale is accordingly reserved for circumstances in which the
conduct under consideration is sufficiently reprehensible, vexatious, reckless or
otherwise deserving of the court’s disapproval. The enquiry is necessarily fact -
specific. The formulation in Public Protector v South African Reserve Bank ,7
namely that costs on the attorney-and-client scale are to be awarded where there
is fraudulent, dishonest or vexatious conduct, or conduct amounting to an abuse
of the process of the court, is to the same effect. That formulation appears in the
judgment of Mogoeng CJ. It was endorsed by the Constitutional Court in
Normandien8, together with the statement in Plastic Converters Association9 that
the scale is an extraordinary one, reserved for cases in which a litigant has
conducted itself in a clearly and indubitably vexatious and reprehensible manner.
The plaintiff’s conduct
[32] It cannot be suggested that the action was improper from its inception.
When summons was issued, there remained a live dispute concerning the lease
and the plaintiff remained in occupation. The action was capable of serving a
practical purpose. The fact that the relief later became unnecessary does not
retrospectively render its institution vexatious. That consideration is important
because a punitive costs order should not be imposed merely with the benefit of
hindsight.
[33] The position changed when the lease expired by effluxion of time on 30
November 2025, and any residual doubt was removed the following day. On 1
December 2025 the defendant delivered its special pleas and squarely raised the
mootness of the action. From that date the plaintiff knew, or ought reasonably to
have appreciated, that the lease upon which the substantive relief was founded
7 Public Protector v South African Reserve Bank [2019] ZACC 29; 2019 (6) SA 253 (CC) para 8.
8 Normandien Farms (Pty) Ltd v South African Agency for Promotion of Petroleum Exportation
8 Normandien Farms (Pty) Ltd v South African Agency for Promotion of Petroleum Exportation
and Exploitation (SOC) Ltd and Others [2020] ZACC 5; 2020 (4) SA 409 (CC) paras 69-72
9 Plastic Converters Association of South Africa v National Union of Metalworkers of SA [2016]
ZALAC 39; (2016) 37 ILJ 2815 (LAC) para 46.
had expired and that whatever practical purpose the action had previously served
had substantially disappeared.
[34] At that stage the sensible course was to reconsider whether there
remained any purpose in continuing with the action and, if not, to bring it to an
end before further costs were incurred.
[35] The plaintiff did not do so. Instead, the litigation continued for several
further months. This was not a period of inactivity while the parties considered
their positions. The plaintiff continued actively to prosecute the action. It had
shortly before pressed the defendant to plead. The defendant was thereby
required to deliver the special pleas. Thereafter the plaintiff delivered a
replication. The matter remained enrolled and the defendant was required to
prepare for the hearing.
[36] The plaintiff’s explanation is that the action had been necessary when
instituted and had achieved its purpose because the purported termination of the
lease was not implemented and the lease was permitted to run its course.
[37] I accept the first part of that proposition. It does not answer the second
part of the enquiry. Once the lease had run its course, the very fact upon which
the plaintiff relies to justify the original institution of the proceedings also
demonstrated why their continued prosecution had become unnecessary.
[38] There is a material distinction between instituting proceedings reasonably
and persisting with them after the circumstances which justified their institution
have ceased to exist.
[39] That distinction is fatal to the plaintiff’s own formulation of the enquiry.
Relying on Wildlife, the plaintiff submitted that the question is whether a litigant
acted reasonably in launching proceedings and was later driven to withdraw
them because subsequent developments rendered the relief unnecessary or
unobtainable. I accept that formulation. The difficulty is that the plaintiff was
driven to withdraw when the lease expired at the end of November 2025. It did
not withdraw for a further eight months, during which it continued actively to
prosecute the action. The test upon which the plaintiff relies measures precisely
the interval which it has not explained.
[40] Litigants must ordinarily be afforded a reasonable opportunity to consider
the consequences of changed circumstances, obtain advice and attempt to
resolve questions of costs. The plaintiff had that opportunity in the present
matter. The expiry of the lease by effluxion of time cannot have taken it by
surprise, and the defendant raised the resulting mootness in its special pleas.
[41] The plaintiff took that opportunity and reached the opposite conclusion. On
22 January 2026, some seven weeks after mootness had been raised, it elected
to deliver replications and to press the action on. That election, and the eight
further months of pleadings, procedural steps and preparation for a hearing
which followed it, could no longer produce any practical relief on the underlying
dispute.
[42] Most tellingly, the plaintiff did not withdraw when the lease expired, when
the defendant raised mootness, while the special pleas and replications were
being exchanged , or when separation was sought . It withdrew only after the
defendant had incurred the expense of preparing and delivering its heads of
argument for the imminent hearing.
[43] Viewed cumulatively, that conduct went beyond a mere error of judgment.
It amounted to unreasonable persistence in litigation which the plaintiff knew, or
ought reasonably to have appreciated, could no longer produce any practical
relief, and in that sense to an abuse of the process of this Court. In Normandien10
the Constitutional Court held that it was highly inappropriate for a litigant to leave
litigation pending with knowledge that the case had become moot, and that such
conduct was reprehensible and an abuse of process warranting a punitive costs
order. It caused the defendant to incur costs which could and should have been
avoided.
The costs hearing
[44] The plaintiff submits that, once it offered to withdraw and tendered party -
and-party costs, the defendant could have brought the litigation to an end. It is
contended that the defendant’s insistence upon a punitive scale caused the costs
incurred after the notice of withdrawal and that those costs should therefore be
borne by the defendant.
[45] I cannot agree. Once the defendant disputed the adequacy of the tender,
there remained a live and concrete dispute between the parties, namely whether
the plaintiff’s conduct justified a punitive costs order.
[46] The authorities relied upon by the plaintiff for the proposition that courts
should not expend scarce judicial resources deciding abstract questions of law
do not assist it. 11 The scale upon which one litigant must reimburse another for
costs already incurred is not an abstract proposition. It has direct financial
consequences for both parties.
[47] Nor was the defendant obliged to accept a party -and-party tender merely
because the plaintiff had elected to withdraw at a late stage.
10 Normandien Farms (Pty) Ltd v South African Agency for Promotion of Petroleum Exportation
and Exploitation (SOC) Ltd and Others [2020] ZACC 5; 2020 (4) SA 409 (CC) paras 69-72.
11 Police and Prisons Civil Rights Union v South African Correctional Services Workers’ Union
and Others [2018] ZACC 24; 2019 (1) SA 73 (CC) para 43.
[48] The fact that the parties could not settle a dispute concerning costs is
unfortunate. But a litigant who contends, with justification, that its opponent’s
conduct warrants a punitive order is entitled to have that dispute determined.
[49] I therefore do not regard the defendant’s insistence upon adjudication of
the scale as an abuse of process.
The contractual costs clause
[50] The defendant submitted, as an alternative and freestanding ground for a
punitive order across the whole of the action, that clause 22.5 of the lease
entitles it to costs on the attorney-and-own-client scale. Clause 22.5 provides that
‘should the party (“the aggrieved party”) institute action against the other party
(“the defaulting party”) pursuant to a breach by the defaukting party of this Lease
when without prejudice to any other rights which the aggrieved party may have,
the aggrieved party shall be entitled to recover all legal costs/charges, tracing
fees and such collection commission on an attorney and own client scale.’
[51] The plaintiff answered that clause 22.5 is not a general costs clause
covering any litigation arising out of the lease. On its terms it operates where an
aggrieved party institutes action against a defaulting party pursuant to a breach.
It does not provide that any party which successfully resists proceedings is
entitled to costs on that scale. The defendant instituted no action, and there has
been no finding that the plaintiff was the defaulting party.
[52] There is force in that submission. The clause is triggered by the institution
of proceedings by an aggrieved party against a party in default, and not by
success in litigation however that success is achieved. On the ordinary meaning
of its language it does not confer an automatic entitlement upon a defendant in
the position of this defendant. To apply it as the defendant contends would in
addition require me to determine which party was in breach of the lease, and to
do so for the sole purpose of fixing a costs scale in an action which has been
withdrawn and in which the merits were never adjudicated. That I decline to do.
The alternative ground accordingly fails, and nothing in this judgment rests upon
the clause.
[53] The costs order which I consider appropriate rests upon the plaintiff’s
conduct of the litigation after the action had lost its practical purpose, and not
upon an assumed determination of the contractual merits.
The appropriate order
[54] There remains the question whether the punitive scale should apply to the
entire action. In my view it should not. As I have found, the action was not moot
when instituted and I am not persuaded that its institution was vexatious or
otherwise deserving of censure. The defendant is entitled to the ordinary costs
incurred during that period, consistently with the tender which the plaintiff itself
made.
[55] The position is different from 22 January 2026. The defendant had raised
mootness in its special pleas on 1 December 2025, and the plaintiff was allowed
a reasonable opportunity to consider its position, take advice and address the
question of costs. It is for that reason that the costs of the special pleas
themselves, and of the period of reflection which followed, remain on the ordinary
scale. What the plaintiff did instead was to deliver a replication on 22 January
2026 and to prosecute the action for a further eight months. From that date the
continued prosecution of the action was unnecessary, and the defendant was put
to the expense of the subsequent pleadings, the separation and pre -trial
proceedings and preparation for the hearing.
[56] I am satisfied that the cumulative conduct described above constitutes the
special circumstance required for an attorney -and-client order in respect of the
costs incurred from 22 January 2026, being the date upon which the plaintiff, with
full knowledge that the action had ceased to serve any practical purpose, elected
to prosecute it further.
[57] That conclusion also disposes of the costs of the present proceedings.
The defendant was substantially successful in its contention that the plaintiff’s
party-and-party tender did not adequately address the costs occasioned by the
plaintiff’s later conduct. There is no basis to require the defendant to bear the
costs of obtaining that determination. Those costs are, moreover, the direct
product of the conduct which justifies the punitive scale in relation to the action
itself. The plaintiff maintained a ten der which its own defective notice of
withdrawal could not render binding, and thereby obliged the defendant to incur
the expense of a hearing which ought not to have been necessary. Those costs
should follow the same scale.
[58] A punitive order limited in this manner is, in my view, both fair and
proportionate. It recognises that the plaintiff was entitled to institute the action,
while ensuring that the defendant is not required to bear the additional expense
caused by the plaintiff’s unreasonable persistence after the basis for continuing
the litigation had fallen away.
Order
[59] In the result, I make the following order:
1. The plaintiff is granted leave in terms of Uniform rule 41(1)(a) to
withdraw the action, such withdrawal to take effect from the date of
this order.
2. The plaintiff shall pay the defendant’s costs of the action incurred up to
and including 21 January 2026 on the party -and-party scale, counsel’s
fees to be allowed on scale B in terms of rule 67A.
3. The plaintiff shall pay the defendant’s costs of the action incurred from
22 January 2026 to date of this order, including the hearing on 27
August 2026, on the scale as between attorney and client, counsel’s
fees to be allowed on scale B in terms of rule 67A.
_____________________________
EM JONKER
ACTING JUDGE OF THE HIGH COURT
Appearances
For the plaintiff: T du Preez
Instructed by: CK Attorneys, Bloubergrant.
For the defendant: EA deVilliers-Jansen SC with S Mahomed
Instructed by: MZ Solomon Attorneys, Grassy Park.